Serrano v. Hull et al

Filing 7

MEMORANDUM OPINION AND ORDER granting 2 MOTION for Leave to Proceed in forma pauperis and dismissing 5 Complaint by Chief Judge M. Christina Armijo. Plaintiff may file an amended complaint within 21 days or entry of this order. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RUDOLPH SERRANO,
Plaintiff,
v.

No. 17cv847 MCA/KK

MAYOR GREGORY HULL,
OFFICER M. CAMPOS, and
CPL. J. MARSHALL,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
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 18, 2017 (“Application”) and
on Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 5, filed August 18, 2017
(“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). “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 stating he is unable to pay the costs of these
proceedings and provided the following information: (i) Plaintiff is unemployed; (ii) Plaintiff’s
average monthly income is $810.00; and (iii) Plaintiff’s monthly expenses total $812.00. The
Court finds that Plaintiff is unable to pay the costs of this proceeding because he is unemployed
and his monthly expenses exceed his monthly income.
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). “[P]ro 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 that Rio Rancho Police Officer Campos started an investigation, and due to
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Officer Campos’ poor work, unprofessionalism and hatred, resulted in a stalking charge which was
later reduced to harassment and eventually dismissed. See Complaint at 3. Plaintiff also alleges
that Defendants “did cause confinement (by false incarceration),” and that Officer Campos
“falsely accused [Plaintiff] and intimidated his family, and kept this conduct for two long years,”
and “postpon[ed] custody visits until [Plaintiff’s children] turned 18.” Complaint at 3-4. The
only allegation regarding Rio Rancho Police Cpl. Marshal is that he “was supervisor of Officer
Campos at the time.” Complaint at 3. The only allegation regarding Rio Rancho Mayor Hull is
Plaintiff’s response to whether Plaintiff sought relief from the appropriate administrative officials:
“Mayor Hull told me he gets a hundred a day, to take it to the Legal Dept.” Complaint at 7.
The Court will dismiss the Complaint without prejudice for failure to state a claim. “[T]o
state a 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.” Nasious v. Two Unknown B.I.C.E. Agents, at
Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007). Plaintiff’s allegations
are conclusory and do not state with particularity what the Defendants did to him, how their
actions harmed him and what specific right he believes Defendants violated. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (“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”).
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.

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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
over which the Court has jurisdiction, and which includes the address of every defendant named in
the amended complaint.
IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed August 18, 2017, is GRANTED.
IT IS ALSO ORDERED that Plaintiff’s Civil Rights Complaint Pursuant to
42 U.S.C. § 1983, Doc. 5, filed August 18, 2017, is DISMISSED without prejudice. Plaintiff
may file an amended complaint within 21 days of entry of this Order.

________________________________________
M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE

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