Vigil v. Doe

Filing 4

ORDER by Magistrate Judge Kirtan Khalsa granting #2 Motion to Proceed under 28 U.S.C. 1915 (jdm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JACOB VIGIL,
Plaintiff,
v.

No. 1:19-cv-00072-KK

JOHN DOE,
Defendant.
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 25, 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

for costs....”

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 current income amount is $0.00; (ii) he is unemployed; (iii) he has $10.00 in
bank accounts; and (iv) he is borrowing money from his family to cover rent. 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 he
has no income.
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 Defendant at this time
because Plaintiff has not provided the Court with Defendant’s name and address. The Court will
order service if Plaintiff files a motion for service which provides Defendant’s name and address.
IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed January 25, 2019, is GRANTED.

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_____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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