Torres v. Hudspeth

Filing 7

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 6 Second MOTION (Application) for Leave to Proceed in forma pauperis; denying as moot 2 MOTION (Application) for Leave to Proceed in forma pauperis; and dismissing without prejudice Plaintiff's Amended Complaint 5 ; giving Plaintiff until 5/5/2017 to file a Second Amended Complaint . (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JESSE TORRES,
Plaintiff,
v.

No. 17cv347 JAP/WPL

HUDSPETH,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT
In this MEMORANDUM OPINION AND ORDER the Court rules on pro se Plaintiff’s
amended Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, (Amended Complaint), Doc. 5,
filed March 22, 2017, on his original Application to Proceed in District Court Without Prepaying
Fees or Costs, Doc. 2, filed March 17, 2017 (“original Application”), and on his second
Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 6, filed March 22,
2017 (“Second Application”). The Court will GRANT Plaintiff’s Second Application to proceed
in forma pauperis, DENY Plaintiff’s original Application as moot, and DISMISS Plaintiff’s
Amended Complaint without prejudice. Plaintiff will have until May 5, 2017 to file a second
amended complaint. Failure to timely file a second amended complaint may result in dismissal of
this case without prejudice.
Application to Proceed in forma pauperis
The statute for proceedings in forma pauperis is 28 U.S.C. § 1915(a). Under this statute,
a Court may authorize the commencement of a suit without prepayment of fees by a person who
submits an affidavit that includes a statement of all assets the person possesses and that
demonstrates the person is unable to pay the 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). A
litigant’s affidavit is sufficient if it shows that he “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 Second Application.

Plaintiff signed an affidavit

declaring that he is unable to pay the costs of these proceedings. In his affidavit, Plaintiff
declared (i) his monthly income during the past 12 months was $1,532.00 and that his expected
income next month is $0.00; (ii) his monthly expenses are $873.00; (iii) he has no cash and no
money in bank accounts, (iv) his only asset is a truck; and (v) he is unemployed. The Court finds
that Plaintiff is unable to pay the filing fee because he is unemployed and has no money or other
significant assets. Because the Court will grant Plaintiff’s Second Application, the Court will
deny Plaintiff’s original Application as moot.
Jurisdiction
Plaintiff asserts a claim of racial discrimination against his former employer, Defendant

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Hudspeth. See Amended Complaint at 3. Plaintiff alleges that he broke up a fight between two
of Defendant’s other employees after hours and off-site. Plaintiff alleges that Defendant’s
superintendent, a Native American, terminated Plaintiff’s employment, but did not terminate the
employment of the two other employees involved in the fight, both of whom are Native
Americans. Plaintiff states he “sought remediation through the Equal Employment Opportunity
Commission 12/12/16.” Amended Complaint at 5.
Although he does not identify any specific federal statute, it appears Plaintiff is seeking
relief under Title VII which makes it unlawful “to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1). “Exhaustion of administrative remedies is a jurisdictional
prerequisite to suit under Title VII.” Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996). “A
plaintiff’s claim in federal court is generally limited by the scope of the administrative
investigation that can reasonably be expected to follow the charge of discrimination submitted to
the EEOC.” MacKenzie v. City and County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005).
“[A] plaintiff normally may not bring a Title VII action based upon claims that were not part of a
timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter.” Simms v.
Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.
1999).
In his original Complaint, Plaintiff makes no allegations of racial discrimination; Plaintiff
simply alleges he was wrongfully terminated because he “did not break any policy set by Hudspeth
for breaking up an after hours altercation.” Complaint at 2-3, Doc. 1 (also stating “Wrongful

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termination investigation conducted by the State awarded unemployment insurance benefits
[based on] no finding of [Plaintiff] breaking any company policy for breaking up an after hours
altercation”). There are no allegations in the original Complaint or the Amended Complaint
which describe the claims in Plaintiff’s EEOC charge or the scope of the administrative
investigation that followed Plaintiff’s EEOC charge. Consequently, the Court does not know
whether the subject of the EEOC charge and the administrative investigation was racial
discrimination or an alleged violation of company policy.
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”). Whether the Court has
jurisdiction under Title VII depends on the nature of the claims stated in Plaintiff’s EEOC charge
and the scope of the administrative investigation that followed Plaintiff’s EEOC charge. Plaintiff
has not alleged sufficient facts to support jurisdiction because he has not described the claims he
stated in his EEOC charge or the scope of the administrative investigation that followed Plaintiff’s
EEOC charge.
The Court will dismiss the Amended Complaint without prejudice for lack of jurisdiction.
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.”). Plaintiff will have until May 5, 2017 to file

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a second amended complaint if he can do so consistent with Fed. R. Civ. P. 11. The Court
reiterates that failure to timely file a valid second amended complaint may result in dismissal of
this case without prejudice.
IT IS ORDERED that:
(i) Plaintiff’s second Application to Proceed in District Court Without Prepaying Fees or Costs,
Doc. 6, filed March 22, 2017, is GRANTED.
(ii) Plaintiff’s original Application to Proceed in District Court Without Prepaying Fees or Costs,
Doc. 2, filed March 17, 2017, is DENIED as moot.
(iii) Plaintiff’s Amended Complaint, Doc. 5, filed March 22, 2017, is DISMISSED without
prejudice.
(iv) Plaintiff will have until May 5, 2017 to file a second amended complaint.

__________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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