Quiles v. United States Department of Agriculture et al

Filing 6

MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo granting 2 MOTION for Leave to Proceed in forma pauperis and dismissing 1 Complaint; Plaintiff may file an amended complaint within 21 days of entry of this Order (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JAYLENE M. QUILES,
Plaintiff,
v.

No. 16cv1293 MCA/SCY

UNITED STATES DEPARTMENT OF AGRICULTURE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
THIS MATTER comes before the Court on pro se Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs, Doc. 2, filed November 23, 2016 (“Application”),
on her Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed November 23, 2016
(“Complaint”). For the reasons stated below, the Court will GRANT Plaintiff’s Application and
DISMISS Plaintiff’s Complaint without prejudice. Plaintiff shall have 21 days from entry of
this Order to file an amended complaint. Failure to timely file an amended complaint may result
in dismissal of this case without prejudice.
Application to Proceed in forma pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the
Court may authorize the commencement of any suit without prepayment of fees by a person who
submits an affidavit that includes a statement of all assets the person possesses and that the person
is unable to pay such fees.
When a district court receives an application for leave to proceed in forma pauperis,
it should examine the papers and determine if the requirements of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter,
if the court finds that the allegations of poverty are untrue or that the action is
frivolous or malicious, it may dismiss the case[.]

Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58,
60 (10th Cir. 1962). “[A]n application to proceed in forma pauperis should be evaluated in light
of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir.
2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.1988)). “The statute [allowing a
litigant to proceed in forma pauperis ] was intended for the benefit of those too poor to pay or give
security for costs....” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 344 (1948).
While a litigant need not be “absolutely destitute,” “an affidavit is sufficient which states that one
cannot because of his poverty pay or give security for the costs and still be able to provide himself
and dependents with the necessities of life.” Id. at 339.
The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit declaring that she is unable to pay the costs of these
proceedings and provided the following information: (i) her average monthly income during the
past 12 months was $0.00 and her income amount expected next month is $0.00; (ii) she owns no
assets; (iii) her monthly expenses are $0.00; and (iv) she has no cash and has no money in bank
accounts. Because of she has had no income during the past year with no income expected next
month, and because she is unemployed, the Court finds that Plaintiff is unable to prepay the fees to
initiate this action.
Dismissal of Proceedings In Forma Pauperis
The statute governing proceedings in forma pauperis requires federal courts to dismiss an
in forma pauperis proceeding that “is frivolous or malicious; ... fails to state a claim on which
relief may be granted; ... or seeks monetary relief against a defendant who is immune from such
relief.” See 28 U.S.C. § 1915(e)(2). “Dismissal of a pro se complaint for failure to state a claim is

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proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it
would be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th
Cir. 2007). “In determining whether a dismissal is proper, we must accept the allegations of the
complaint as true and construe those allegations, and any reasonable inferences that might be
drawn from them, in the light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d at 1217.
The Court looks to the specific allegations in the complaint to determine whether they plausibly
support a legal claim for relief, i.e. the factual allegations must be enough to raise a right to relief
above the speculative level. See id. at 1218 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007)). Dismissal of an in forma pauperis complaint as frivolous is not an abuse of discretion
based on a determination that the pro se litigant did not state a viable legal claim and that the
complaint consisted of little more than unintelligible ramblings.

Triplett v. Triplett, 166

Fed.Appx. 338, 339-340 (10th Cir. 2006). However, “pro se litigants are to be given reasonable
opportunity to remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3
(10th Cir. 1991).
Plaintiff asserts claims under the Rehabilitation Act, 29 U.S.C. §§ 791 et seq., and the
Americans with Disabilities Act, 42 U.S.C. § 12102 (“ADA”).

The only allegations in the

Complaint are:
Discrimination/I have a disability and was terminated. The USDA, Steve
Romero, Thomas J. Vilsak Secretary of Agriculture
....
Discrimination on my disability and background
....
Steve Romero terminated me because of my disability + background. . . . He fired
me on leave of bereavement because of my disability bipolar + PTSD. Other
employees had actions but mine was dismissed. I have text messages and my
termination notice.

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Complaint at 2-3.
The Court will dismiss the Complaint without prejudice for lack of jurisdiction because
Plaintiff has not alleged sufficient facts to establish the Court’s jurisdiction over this matter. See
Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action”); Brereton v. Bountiful City Corp., 434 F.3d 1213,
1218 (10th Cir.2006) (“[D]ismissals for lack of jurisdiction should be without prejudice because
the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a
disposition on the merits of the underlying claims.”). As the party seeking to invoke the
jurisdiction of this Court, Plaintiff bears the burden of alleging facts that support jurisdiction. See
Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013) (“Since federal courts are courts of
limited jurisdiction, we presume no jurisdiction exists absent an adequate showing by the party
invoking federal jurisdiction”).
“The exhaustion of administrative remedies is a jurisdictional prerequisite to instituting an
action in federal court under . . . the Rehabilitation Act.” Showalter v. Weinstein, 233 Fed.Appx.
803, 804 (10th Cir. 2007) (“Federal employees alleging discrimination or retaliation prohibited by
Title VII or the Rehabilitation Act must comply with specific administrative complaint procedures
in order to exhaust their administrative remedies,” referring to the procedures described generally
in 29 C.F.R. pt. 1614). “[T]he ADA requires a plaintiff to exhaust her administrative remedies
before filing suit” and “exhaustion of administrative remedies is a jurisdictional prerequisite to
suit.” Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir.2007). Plaintiff
indicates she is asserting jurisdiction pursuant to “EEOC Request #05970561,” but has not alleged
any facts showing that she has exhausted her administrative remedies, including the date of

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termination of her employment, the dates and description of any steps she took, if any, to exhaust
her administrative remedies, and the scope of the allegations raised in her EEOC charge(s).
Complaint at 2.
The Court notes that the Complaint also fails to state a claim. Plaintiff is suing pursuant to
29 U.S.C. §§ 791 et seq. “which requires federal agencies to affirmatively act to employ disabled
individuals.” Wells v. Shalala, 228 F.3d 1137, 1144 (10th Cir. 2000). Section 794 provides in
relevant part: “No otherwise qualified individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subject to discrimination under any program or activity conducted by any
Executive agency. . . .” Wells v. Shalala, 228 F.3d at 1144. “To qualify for relief under § 794(a),
which applies ADA standards to federal-agency employment discrimination . . . Plaintiff must
demonstrate that (1) he is a disabled person within the meaning of the law, (2) he is qualified for
the job, and (3) he was discriminated against because of his disability.” Wells v. Shalala, 228
F.3d at 1144. Plaintiff makes the conclusory allegations that she is disabled and that she was
terminated because of her disability.

However, “conclusory allegations without supporting

factual averments are insufficient to state a claim on which relief can be based . . . [and] in
analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the
plaintiff's well-pleaded factual contentions, not his conclusory allegations.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). Plaintiff has not alleged that she is disabled within the meaning
of the applicable laws, that she is qualified for the job from which she was terminated, or any facts
showing that she was terminated because of her disability. See Nasious v. Two Unknown B.I.C.E.
Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a

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claim in federal court, a complaint must explain what each defendant did to him or her; when the
defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the
plaintiff believes the defendant violated.”).
Plaintiff may file an amended complaint within 21 days of entry of this Order. See Hall v.
Bellmon, 935 F.2d at 1110 n.3 (“pro se litigants are to be given reasonable opportunity to remedy
the defects in their pleadings”). Failure to timely file an amended complaint may result in
dismissal of this case without prejudice.
Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants at this time.
The Court will order service if Plaintiff timely files an amended complaint which states a claim
and establishes that this Court has jurisdiction.
IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed November 23, 2016, is GRANTED.
IT IS ALSO ORDERED that Plaintiff’s Civil Rights Complaint Pursuant to
42 U.S.C. § 1983, Doc. 1, filed November 23, 2016, is DISMISSED without prejudice.
Plaintiff may file an amended complaint within 21 days of entry of this Order.
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________________________________________
M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE

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