Wilson v. Kroger Corporation
ORDER by Magistrate Judge Kirtan Khalsa granting #2 Motion for Leave to Proceed in forma pauperis. Plaintiff shall have 21 days to file an amended complaint. (jdm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHN J. WILSON,
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Application to Proceed in District
Court Without Prepaying Fees or Costs, Doc. 2, filed January 15, 2019.
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)). “The statute [allowing a litigant
to proceed in forma pauperis ] was intended for the benefit of those too poor to pay or give security
See 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.
Plaintiff signed an affidavit declaring that he is unable to pay the costs of these proceedings
and stated: (i) his average monthly income amount is $926.00; (ii) his monthly expenses total
$831.00; (iii) he has $186.00 in bank accounts. The Court grants Plaintiff’s Application to Proceed
in District Court Without Prepaying Fees or Costs because he signed an affidavit declaring that he
is unable to pay the costs of these proceedings and because his low monthly income only slightly
exceeds his monthly expenses.
Plaintiff indicates that the basis for federal court jurisdiction is “Diversity of citizenship.”
Complaint for a Civil Case Alleging Negligence (28 U.S.C. § 1332; Diversity of Citizenship) at
3, Doc. 1, filed January 15, 2019 (“Complaint”). The Court has diversity jurisdiction “where the
matter in controversy exceeds the sum or value of $75,000.00 . . . and is between . . . citizens of
different states.” 28 U.S.C. § 1332(a). Plaintiff alleges that he is a citizen of New Mexico and
that Defendant Kroger Corporation’s address is in Ohio. See Complaint at 2-3. Plaintiff does not
allege the amount in controversy. “Although allegations in the complaint need not be specific or
technical in nature, sufficient facts must be alleged to convince the district court that recoverable
damages will bear a reasonable relation to the minimum jurisdictional floor.” Adams v. Reliance
Standard Life Ins. Co., 225 F.3d 1179, 1183 (10th Cir. 2000).
Plaintiff fails to state a claim for negligence. Plaintiff alleges:
The Def. failed to remedy a foreseeable hazard and pro se Plaintiff fell injuring
himself. Plaintiff alleges but for the negligence of Defendant[’]s failure to keep
their premises safe Plaintiff would not have exacerbated his pre-existing conditions.
The inactions of the Defendant[‘s] management were the proximate and direct
cause of injuries sustained.
Complaint at 4. “The elements of a prima facie case of negligence are duty, breach, proximate
cause, and damages.” Tafoya v. Seay Bros. Corp., 119 N.M. 350, 352 (1995). Plaintiff’s
conclusory allegation that Defendant “failed to remedy a foreseeable hazard” is not sufficient to
state a claim for negligence because there are no factual allegations describing the hazard, how the
hazard caused Plaintiff to fall, or that the hazard was foreseeable. 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”).
The Court grants Plaintiff 21 days to file an amended complaint which alleges a sufficient
basis for jurisdiction and states a claim on which relief may be granted. Failure to timely file such
an amended complaint may result in dismissal of this case without prejudice.
Compliance with Rule 11
While the Court will permit Plaintiff to file an amended complaint, he must do so consistent
with Rule 11 of the Federal Rules of Civil Procedure. See Yang v. Archuleta, 525 F.3d 925, 927
n. 1 (10th Cir. 2008) (“Pro se status does not excuse the obligation of any litigant to comply with
the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”). Rule 11(b)
Representations to the Court. By presenting to the court a pleading, written
motion, or other paper--whether by signing, filing, submitting, or later advocating
it--an attorney or unrepresented party certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). Failure to comply with the requirements of Rule 11 may subject Plaintiff to
sanctions, including monetary penalties and nonmonetary directives. See Fed. R. Civ. P. 11(c).
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
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 Defendant at this time.
The Court will order service if Plaintiff timely files an amended complaint which alleges facts
which support jurisdiction, states a claim on which relief may be granted, and includes the
addresses 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 January 15, 2019, is GRANTED.
Plaintiff shall have 21 days to file an amended complaint.
UNITED STATES MAGISTRATE JUDGE
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