Ullrich v. Moldt et al

Filing 4

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 2 Motion to Proceed under 28 U.S.C. 1915 ( see document for specific instructions) and Dismissing 1 Complaint without prejudice with leave to file an amended complaint within 30 days of the date of this Order. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
STEPHEN ULLRICH,
Plaintiff,
v.

No. 17cv141 JCH/WPL

ADDA MOLDT and
DAVID RIVER,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT
THIS MATTER comes before the Court on Plaintiff’s Complaint, Doc. 1, filed
January 30, 2017, and on his Prisoner Application to Proceed In Forma Pauperis, Doc. 2, filed
January 30, 2017. For the reasons stated below, the Court will GRANT Plaintiff’s Application
to Proceed In Forma Pauperis and DISMISS the Complaint without prejudice. Plaintiff shall
have 30 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)).
Plaintiff is a prisoner and seeks to proceed in District Court without prepaying fees or
costs. The statute governing proceedings in forma pauperis, 28 U.S.C. § 1915(b), provides:
(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an
appeal in forma pauperis, the prisoner shall be required to pay the full amount of a
filing fee. The court shall assess and, when funds exist, collect, as a partial
payment of any court fees required by law, an initial partial filing fee of 20
percent of the greater of-(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period
immediately preceding the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to
make monthly payments of 20 percent of the preceding month's income credited
to the prisoner's account. The agency having custody of the prisoner shall forward
payments from the prisoner's account to the clerk of the court each time the
amount in the account exceeds $10 until the filing fees are paid.
The filing fee for this civil complaint is $350.00. Plaintiff is required to pay the full
amount of the filing fee pursuant to § 1915(b)(1). Plaintiff submitted a financial certificate with
statement of his inmate account activity which shows his inmate account balance to be “$-1.55”
on January 24, 2017. See Doc. 2 at 3. Based on the information about Plaintiff’s financial
status, the Court will waive an initial partial payment pursuant to § 1915(b)(1). Plaintiff shall,
beginning in May 2017, make monthly payments of twenty per cent (20%) of the preceding
month’s income credited to his account or show cause why the designated payments should be
excused. Failure to comply with this order may result in dismissal of the complaint without
further notice.

Dismissal of Complaint for Lack of Jurisdiction
Plaintiff’s claims arise from the alleged improper actions of Defendants in the disposal of
Plaintiff’s parents’ property before and after his parents’ deaths. Plaintiff alleges this action is
against Defendants, “Not Probate/Estate,” that Defendants violated his Fourth and Fifth
Amendment rights, and that they committed “malfeasance, nonfeasance, in general, and malum
in se.” Plaintiff appears to be asserting federal civil rights claims against Defendants pursuant to
42 U.S.C. § 1983 and states: “The Defendants are not state actors; however, they are ‘Agents’,
and it is alleged State of New Mexico, Constitution, Statu[t]e; or Rule, Regulation, policy or
procedure, creates a color of state law as that regulates the conduct of [Defendants].” Complaint
at 1. Plaintiff’s statement regarding this Court’s jurisdiction states in its entirety:
That [Plaintiff] alleges, ‘after all, the federal courts will always be available’, as to
Interstate Diversity, and pendent jurisdiction over state matters – U.S.C.A., article
III., IV., VI, etc.; Additionally, Ancillary Jurisdiction, as an Equitable Remedy,
ibid., Equitable Clean-up Doctrine, applyed by unconsionability Doctrine as
applied to acts and actions of the Agents [Defendants Moldt and Rivers], that
affects [Plaintiff], In Personam over the Subject Matter, there-upon incorporating
all Constitution(al), Statutory and Commonon Law Review.
[sic] Complaint at 2.
Plaintiff’s Complaint fails to state a claim pursuant to 42 U.S.C. § 1983. “Private persons
may be said to act under color of state law if they are jointly engaged with state officials in the
challenged action . . . But private conduct that is not fairly attributable to the State is simply not
actionable under § 1983, however discriminatory or wrongful the conduct is.” Hall v. Witteman,
584 F.3d 859, 864 (10th Cir. 2009). A plaintiff can state a cognizable § 1983 claim against
private citizens if he adequately alleges that the private citizen defendants conspired with the
state actors to violate his federal rights. See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir.
2005). “[W]hen a plaintiff attempts to assert the state action required for a § 1983 claim against

private actors based on a conspiracy with government actors, ‘mere conclusory allegations with
no supporting factual averments are insufficient,’ [instead] the plaintiff must specifically plead
“facts tending to show agreement and concerted action.” Id.

Plaintiff’s allegation that

Defendants’ actions were regulated by state law is not sufficient to state a claim against private
citizens pursuant to 42 U.S.C. § 1983. The Court will dismiss the 42 U.S.C. § 1983 claims
against Defendants for failure to state a claim.
Plaintiff’s Complaint does not contain any allegations that show any other basis for
federal question jurisdiction. See 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States”).
Although Plaintiff mentions “Interstate Diversity” in his statement regarding jurisdiction,
he has not alleged sufficient facts to show that the Court has diversity jurisdiction over this
matter. See 28 U.S.C. § 1332(a)(1) (“The district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different states?). In order to invoke diversity
jurisdiction, “a party must show that complete diversity of citizenship exists between the adverse
parties and that the amount in controversy exceeds $75,000.” Symes v. Harris, 472 F.3d 754,
758 (10th Cir.2006). Plaintiff is a prisoner in Idaho. The Complaint does not allege any facts
regarding his citizenship or the citizenship of Defendants. See Smith v. Cummings, 445 F.3d
1254, 1260 (10th Cir. 2006) (“a prisoner is presumed to be a citizen of the state of which he was
a citizen before his incarceration, even if he is subsequently incarcerated in another state”). Nor
does he allege any facts that show the amount in controversy exceeds $75,000.00.

The Court will dismiss the Complaint without prejudice for lack of 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”); 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.”). Plaintiff may
file an amended complaint within 21 days of entry of this Order. Failure to timely file an
amended complaint may result in dismissal of this case without prejudice.
Service of Process
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
because the Court is dismissing the Complaint for lack of jurisdiction. The Court will order
service if Plaintiff timely files an amended complaint which shows that the Court has jurisdiction
over this matter and which includes the addresses of every defendant named in the complaint.
IT IS ORDERED that Plaintiff’s Prisoner Application to Proceed In Forma Pauperis,
Doc. 2, filed January 30, 2017, is GRANTED, and the initial payment is waived.

IT IS ALSO ORDERED that Plaintiff file, beginning in May 2017, monthly financial
certificates and make monthly payments of twenty per cent (20%) of the preceding month’s
income credited to his account or show cause why the payment should be excused.
IT IS FURTHER ORDERED that Plaintiff’s Complaint, Doc. 1, filed January 30, 2017,
is DISMISSED without prejudice. Plaintiff may file an amended complaint within 30 days of
entry of this Order.

__________________________________
UNITED STATES DISTRICT JUDGE