Kruskal v. Chanler et al

Filing 4

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson GRANTING 2 Motion for Leave to Proceed in forma pauperis and dismissing 1 Complaint with prejudice. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KERRY KRUSKAL,
Plaintiff,
v.

No. 17cv112 WJ/WPL

KATHY CHANLER and
BERNABE P. STRUCK,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on pro se Plaintiff’s Complaint for Negligence
and/or Gross Negligence, Doc. 1, filed January 23, 2017 (“Complaint”), and on his Application to
Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed January 23, 2017
(“Application”). For the reasons stated below, the Court GRANTS Plaintiff’s Application and
DISMISSES this case with 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. Plaintiff signed an affidavit stating he is
unable to pay the costs of these proceedings and provided the following information: (i) Plaintiff’s
average monthly income from real property and food stamps during the past 12 months was
$865.00 and his expected income next month is $1,065.00; (ii) Plaintiff is currently unemployed;
(iii) Plaintiff has $200.00 in cash and $200.00 in bank accounts; (iv) Plaintiff’s assets include a
home valued at $150,000.00, other real estate valued at $400,000.00, and two vehicles valued at
$1,000.00 each; and (v) Plaintiff’s estimated average monthly expenses total $1,095.00. The
Court finds Plaintiff is unable to pay the costs of these proceedings because he is unemployed, and
his monthly expenses exceed his monthly income.
The Complaint
Plaintiff is suing Defendants pursuant to 42 U.S.C. § 1983 for violating his civil right to
due process. See Complaint at 4. Both Defendants are employed by the State with the Eighth
Judicial District Court in Taos, New Mexico: Defendant Chanler is the “TCAA to Judge
McElroy;”1 Defendant Struck is the “Head Clerk.” Complaint at 1-2. After Judge McElroy

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Trial Court Administrative Assistant is member of Judge’s personal staff.
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ruled on a case in which Plaintiff was a party, “the clerk made a very rare error, and did not send
any copies, of the final decision, to either party.” Complaint at 2. Plaintiff is suing Defendant
“Chanler because Judge McElroy stated from the bench that this ‘rare oversight’ was caused by
her.” Complaint at 3. Plaintiff is suing “Struck, the head clerk, because he may be personally
responsible for the failure to give [Plaintiff] notice” of Judge McElroy’s decision. Complaint at
3. After not receiving notice of Judge McElroy’s decision, Plaintiff missed the deadline to file an
appeal, and the “Appellate court refused to hear the case because it was outside the time limitation
to file an appeal.” Complaint at 3. Plaintiff is confident that on appeal, he would have prevailed
on the underlying case and, therefore, “one or both of the clerks are responsible for the damages
[Plaintiff] has suffered by not being able to collect from [the opposing party].” Complaint at 3.
Dismissal under § 1915(e)(2)(B)(iii)
Plaintiff is proceeding in forma pauperis and is thus subject to the requirements of 28
U.S.C. § 1915. Under § 1915(e)(2)(B)(iii), district courts must dismiss an IFP complaint if it
“seeks monetary relief against a defendant who is immune from such relief.”

“Absolute

immunity bars suits for money damages for acts made in the exercise of prosecutorial or judicial
discretion.” Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th Cir.2006). “[I]mmunity which
derives from judicial immunity may extend to persons other than a judge where performance of
judicial acts or activity as an official aid of the judge is involved. Absolute judicial immunity has
thus been extended to non-judicial officers, like clerks of court, where their duties had an integral
relationship with the judicial process.” Sawyer v. Gorman, 317 Fed.Appx. 725, 728 (10th Cir.
2008).
Defendants Chanler and Struck were acting as official aides of Judge McElroy and are
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absolutely immune from Plaintiff’s damages claims.

The Court dismisses this case with

prejudice.
IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed January 23, 2017, is GRANTED.
IT IS ALSO ORDERED that this case is DISMISSED with prejudice.

__________________________________
UNITED STATES DISTRICT JUDGE

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