Muldrow v. Hull et al

Filing 6

MEMORANDUM OPINION AND ORDER GRANTING 2 MOTION TO PROCEED IN FORMA PAUPERISAND DENYING REQUEST FOR TEMPORARY RESTRAINING ORDERAND/OR PRELIMINARY INJUNCTION by District Judge William P. Johnson. (rwg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHRISTOPHER J. MULDROW,
Plaintiff,
v.

No. 18cv119 WJ/KK

GREGGORY D. HULL, in his individual
and official capacity as the current
Mayor of Rio Rancho,
CITY OF RIO RANCHO,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
AND DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION
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 February 6, 2018 (“Application”),
and on Plaintiff’s Complaint for Declaratory and Injunctive Relief and Damages, Doc. 1, filed
February 6, 2018 (“Complaint”). For the reasons stated below, the Court will GRANT Plaintiff’s
Application and DENY Plaintiff’s request for a temporary restraining order and/or preliminary
injunction.
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 he is unable to pay the costs of these
proceedings and stated: (i) his and his spouse’s combined average monthly income during the past
12 months is $1,500.00; and (ii) his and his spouse’s combined monthly expenses are
approximately $1,776.00.

The Court finds Plaintiff is unable to pay the costs of these

proceedings because his and his spouse’s combined monthly expenses exceed their combined
monthly income. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (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”).
Request for Temporary Restraining Order and/or Preliminary Injunction
Plaintiff is currently running for Mayor of the City of Rio Rancho (“City”).

See

Complaint at 1. On January 12, 2018, Defendants granted a community organization a permit to
hold a candidate forum in a library owned by the City. On January 19, 2018, Defendants notified
the community organization “that they were revoking the permit because no mayoral candidate
forums were permitted at the library, however, shortly after Defendants allowed [another
community organization] to host a mayoral candidate forum in the auditorium at the library on
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January 30, 2018.” Complaint at 1-2. “Defendants claim that the decision to revoke the permit
was based on [a] city ordinance” which prohibits the use of public resources “to further partisan
campaign purposes or to influence the outcome of an election.” Complaint at 3. Plaintiff
alleges:
Defendants’ revocation of permit was based on viewpoints and was not necessary
to achieve any compelling government interest, in violation of the First and
Fourteenth Amendments and the revocation was not narrowly tailored to a
substantial government interest, and did not leave open alternative means of
communication. The Ordinance is overly broad because it is not narrowly drawn
or necessary to achieve any compelling government interest and unconstitutional
because it limits freedom of political speech and assembly in traditional facilities
such as parks as well as libraries.
Complaint at 4.

Plaintiff states that “Defendants’ revocation of the requested permit

violated—and, unless enjoined by this Court, will continue to violate—Plaintiff’s rights to
freedom of speech, assembly, and petition as guaranteed by the First and Fourteenth Amendments
to the United States Constitution.”

Complaint at 4.

Plaintiff asks the Court to “Enter a

temporary restraining order and/or preliminary injunction enjoining Defendants to permit the
candidate forum to go on as planned in the Library on February 17, 2018.” Complaint at 4.
Plaintiff states that Defendants have been notified of his request for a temporary restraining order.
See Information Sheet for T.R.O., Doc. 4, filed February 6, 2018. Defendants have not yet been
served with a summons and copy of the Complaint, and have not entered an appearance in this
case.
Plaintiff’s Complaint requests that the Court “enter a temporary restraining order and/or
preliminary injunction enjoining Defendants to permit the candidate forum to go on as planned in
the Library on February 17, 2018.” Complaint at 4. To obtain a preliminary injunction, Plaintiff
“must show that four factors weigh in his favor: (1) [he] is substantially likely to succeed on the
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merits; (2) [he] will suffer irreparable injury if the injunction is denied; (3) [his] threatened injury
outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction
would not be adverse to the public interest.” Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir.
2012).
The Court will not enter a temporary restraining order or preliminary injunction at this time
because Plaintiff has not shown that the four factors weigh in his favor. Plaintiff has not shown
that he is likely to succeed on the merits. Plaintiff makes the conclusory allegations that the
revocation of the permit “was based on viewpoints,” and that the revocation and the ordinance are
“not necessary to achieve any compelling government interest,” but he does not make any factual
allegations or cite any legal authority showing that the revocation of the permit violated his
constitutional rights or that the ordinance is unconstitutional. Complaint at 2, 4. Plaintiff also
does not set forth any argument or authority addressing any injury to Defendants that might result
from them not enforcing the ordinance or whether an injunction would be adverse to the public
interest. See Heideman v. South Salt Lake City, 348 F.3d 1182, 1191 (10th Cir. 2003) (“Although
the presumption of constitutionality accorded a municipal ordinance is less than that accorded an
Act of Congress, especially in a case involving an explicitly enumerated constitutional right, the
ability of a city to enact and enforce measures it deems to be in the public interest is still an equity
to be considered in balancing hardships”).
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:

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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 Plaintiff has not provided the Defendants’ addresses. The Court will order service if
Plaintiff provides the Court with Defendants’ addresses.
IT IS ORDERED that:
(i) Plaintiff’s Application to Proceed in District Court without Prepaying Fees or Costs,
Doc. 3, filed January 23, 2018, is GRANTED; and
(ii) Plaintiff’s request for a temporary restraining order and/or preliminary injunction is
DENIED.

__________________________________
UNITED STATES DISTRICT JUDGE

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