Nevarez v. Suttenoll
Filing
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MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack granting 2 MOTION for Leave to Proceed in forma pauperis and dismissing without prejudice 1 Complaint. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GABRIEL JOSE NEVAREZ,
Plaintiff,
v.
No. 1:19-cv-0520-RB-JFR
KIETH SUTTENOLL,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on Plaintiff’s Application to Proceed in District
Court Without Prepaying Fees of Costs (Doc. 2), filed May 15, 2019 (“Application”), and on
Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (Doc. 1), filed May 15, 2019
(“Complaint”).
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 F. App’x. 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's monthly income is $789.89; (ii) Plaintiff is
unemployed; (iii) Plaintiff’s monthly expenses total $789.89; and (iv) Plaintiff has $20.00 in a
checking account. The Court finds that Plaintiff is unable to pay the costs of this proceeding
because his monthly expenses equal his monthly income, he is unemployed, and he only has a
small amount of money in a bank account.
Dismissal of Proceedings In Forma Pauperis
Plaintiff filed his Complaint using the form “Civil Rights Complaint Pursuant to
42 U.S.C. § 1983.” Plaintiff's Complaint, which is difficult to understand, and the police reports
attached to the Complaint, indicate the following factual background. Plaintiff was attempting to
buy a jug of juice at a store, became angry, swore at and attempted to hit a man with the jug of
juice. When three employees attempted to escort Plaintiff out of the store, Plaintiff punched one
of the employees in the face and attempted to kick other persons. The police arrived and took
Plaintiff into custody. Plaintiff states that Defendant is the manager of the store but does not allege
that Defendant did anything to Plaintiff. (Compl. at 1, 3.) None of the police reports attached to
the Complaint mention Defendant. (See id. at 7–29.) Plaintiff indicates he was “falsely charged”
and suffered “public humiliation” and “emotional distress.” (Id. at 3–4.)
Plaintiff's Complaint fails to state a claim pursuant to 42 U.S.C. § 1983, because Defendant
is not a state actor and Plaintiff has not alleged that Defendant deprived Plaintiff of a right secured
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by federal law or conspired with state actors to violate Plaintiff’s federal rights. 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”); Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (a
plaintiff can state a cognizable § 1983 claim against private citizens if he adequately alleges that
the private citizen defendants conspired with state actors to violate his federal rights).
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. The statute
governing proceedings in forma pauperis states “the court shall dismiss the case at any time if the
court determines that . . . the action . . . 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.” 28 U.S.C. § 1915(e)(2). The Court dismisses Plaintiff’s civil rights claim pursuant to
42 U.S.C. § 1983 for failure to state a claim.
The Court, having dismissed the only federal law claim and noting there is no diversity
jurisdiction, declines to exercise supplemental jurisdiction over the “public humiliation” and
“emotional distress” claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to
exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims
over which it has original jurisdiction”).
IT IS ORDERED that:
(i)
Plaintiff’s Application to Proceed in District Court Without Prepaying Fees of
Costs, Doc. 2, filed May 15, 2019, is GRANTED.
(ii)
This case is DISMISSED without prejudice.
________________________________
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE
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