Kucera v. Choi

Filing 8

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting 2 Motion for Leave to Proceed in forma pauperis; and dismissing this case without prejudice. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GREGORY EDWARD KUCERA,
Plaintiff,
v.

No. 17cv789 KG/SCY

SOO-YOUNG CHOI and
NORTH KOREA,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
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 August 2, 2017 (“Application”) and
on Plaintiff’s Amended Complaint, Doc. 7, filed August 8, 2017. For the reasons stated below,
the Court will GRANT Plaintiff’s Application and DISMISS 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). “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).

The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit stating that he unable to pay the costs of these
proceedings and provided the following information: (i) his average monthly income during the
past 12 months was $667.00; (ii) he is unemployed; (iii) he owns no assets; and (iv) his monthly
expenses are $267.00. Because he is unemployed and because of his low monthly income, the
Court finds that Plaintiff is unable to prepay the fees to initiate this action. See Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (stating that 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”).
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
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.” Id. 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 alleges that Defendant Choi is a spy from North Korea, she was acting under color
of state law and that she physically assaulted Plaintiff thereby violating his constitutional rights,
privileges and immunities. See Amended Complaint at 1, 3, 6. In addition to compensation,
Plaintiff seeks to be placed in the federal witness protection program, the ability to review
classified documents, and to be classified as a Central Intelligence Agency Officer. See Amended
Complaint at 6.
The Court will construe Plaintiff’s Amended Complaint as seeking relief pursuant to
42 U.S.C. § 1983 or as a Bivens action, because Plaintiff claims Defendant Choi violated his
Constitutional rights.1 See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (Section 1983
provides a cause of action against state officials who violate constitutional or other federally
protected right; a Bivens action is the federal analog to a § 1983 suit and provides a “private action
for damages against federal officers who violate certain constitutional rights.”). Section 1983
only authorizes suits against persons acting under color of state law. See McCarty v. Gilchrist,
646 F.3d 1281, 1285 (10th Cir. 2011)(“Section 1983 provides a federal civil remedy for the
deprivation of any rights, privileges, or immunities secured by the Constitution by any person
acting under color of state law.”); Stone v. Elohim, Inc., 336 Fed.Appx. 841, 842 (10th Cir. 2009)

Plaintiff filed his original Complaint “pursuant to 42 U.S.C. 1983.” See Doc. 1 at 1, filed
August 2, 2017.
1

(quoting Lugar v. Edmondson Oil Co., Inc. , 457 U.S. 922, 937 (1982)) (The “state action doctrine
requires that the deprivation must be caused by the exercise of some right or privilege created by
the State or by a rule of conduct imposed by the state or by a person for whom the State is
responsible and the party charged with the deprivation must be a person who may fairly be said to
be a state actor”); Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009) (“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.”). Although Plaintiff makes
the conclusory allegation that the Defendant Choi was acting under color of state law, there are no
factual allegations showing that Defendant Choi is a state actor or that her conduct is attributable to
the State, or that Defendant Choi is a federal official. Plaintiff voices vague concerns about
espionage, but he does not assert any claims against Defendant North Korea. See Complaint at 1
(stating plaintiff “is concerned regarding the growing threat of espionage operations conducted by
North Korea, in New Mexico”). The Court will, therefore, dismiss this case without prejudice for
failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2) (“the court
shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim
on which relief may be granted”).
IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed August 2, 2017, is GRANTED.
IT IS ALSO ORDERED that this case is DISMISSED without prejudice.

_________________________________
UNITED STATES DISTRICT JUDGE