Wiggins v. Hatch et al

Filing 124

MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs denying 123 Motion to Proceed under 28 U.S.C. 1915 (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
MATTHEW WIGGINS,
Plaintiff,
v.

No. 1:21-cv-0670 KWR/DLM

T. HATCH, Warden, et al.,
Defendants.
Consolidated with No. 1:22-cv-0279-KWR/DLM
MATTHEW WIGGINS,
Plaintiff,
v.
FNU LNU, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO PROCEED PURSUANT TO 28 U.S.C. § 1915
THIS MATTER is before the Court on Plaintiff Matthew Wiggins’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915. (Doc. 123.) On September 30, 2024, the Court
entered an Order Adopting the Magistrate Judge’s Proposed Findings and Recommended
Disposition (PFRD), granting Defendants’ Motion to Dismiss in Part and Motion for Partial
Summary Judgment and dismissing Wiggins’s Complaint. (See Doc. 117.) Wiggins filed a Notice
of Appeal, which the Tenth Circuit docketed as Case No. 24-2160. (Docs. 119; 121.) Wiggins now
seeks to proceed in forma pauperis on his appeal to the Tenth Circuit. (See Doc. 123.)
I.

Legal Standard
“In order to succeed on [a motion for leave to proceed in forma pauperis on appeal], an

appellant must show a financial inability to pay the required filing fees and the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
Mohammad v. Albuquerque Police Dep’t, No. CV 16-0764 JB/WPL, 2016 WL 9021735, at *1
(D.N.M. Dec. 16, 2016) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)).
“An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken in good
faith.” Id. (quoting 28 U.S.C. § 1915(a)(3)). To determine whether an appeal is taken in good faith,
the Court uses an objective standard and reviews whether the issues on appeal are frivolous. See
id. (discussing Spearman v. Collins, 500 F. App’x 742, 743 (10th Cir. 2012)). “An appeal is
frivolous when the result is obvious, or the appellant’s arguments of error are wholly without
merit.” Id. (quoting Spearman, 500 F. App’x at 743) (citing Thompson v. Gibson, 289 F.3d 1218,
1222 (10th Cir. 2002) (noting that an appeal is frivolous if it “lacks an arguable basis in either law
or fact”)).
II.

Analysis
Based on the exhibits to the motion and the representations therein, the Court finds Wiggins

lacks sufficient funds to prepay the appellate filing and docketing fees. (See Doc. 123.) The Court
further finds, however, that Wiggins does not bring his appeal in good faith. In his Notice of
Appeal, Wiggins lists four issues.
First, Wiggins “objects to all adverse rulings, as abuse of discretion, and prejudice.” (Doc.
119 at 1.) The Court finds this broad objection fails to identify “the existence of a reasoned,
nonfrivolous argument on the law and facts . . . .” See DeBardeleben, 937 F.2d at 505.
Second, Wiggins states that the Court based its “decision to dismiss [his] claims on him
not answering defendants ??? answer to their order of a Martinez report???. [sic]” (Doc. 119 at 1.)
He further states that “some of the finding[s] in [the Order Adopting the PFRD] are untrue . . . .”

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(Id. (citing Doc. 117).) He identifies only one finding: the Court’s statement that Wiggins asserted
that “[h]e did not receive a copy of an order granting Defendants an extension of time to file the
Martinez report . . . .” (See id.; see also Doc. 117 at 2.) Wiggins clarifies that he received that order
of extension “only after the district court granted the defendants [an] extension.” (Doc. 119 at 1.)
As was noted in the Order Adopting the PFRD, “the Court considered each of [Wiggins’s] filings,
no matter when he filed them[,]” and Wiggins “did not assert he needed more time to adequately
respond and was denied that opportunity . . . .” (See Doc. 117 at 2.) “Accordingly,” the Court held,
“it is unclear on what basis he alleges the Court erred.” (Id.) Wiggins fails to clarify this basis in
his Notice of Appeal, and the Court finds Wiggins fails to identify “a reasoned, nonfrivolous
argument on the law and facts in support of [this issue] on appeal.” See DeBardeleben, 937 F.2d
at 505.
Third, it appears that Wiggins argues the Court did not consider evidence he submitted in
response to the motion for summary judgment. (See Doc. 119 at 2 (“it is not his [fault] the court
did not [view] any of his evidence?.”).) This issue relates to the following finding in the Order
Adopting the PFRD:
[Wiggins objects to the PFRD on the basis that t]he Court failed to take his factual
allegations as true for the purpose of ruling on the motion to dismiss. See Doc. 116.
The Court disagrees and concludes that this objection lacks specificity. Plaintiff
generally asserts this objection but does not specifically point to which factual
allegations in his complaint the Court failed to consider as true, or how the failure
to consider those facts as true led to the dismissal of his case. Moreover, this matter
was partially before the Court on a summary judgment motion. At the summary
judgment stage, even pro se parties are required to support their factual assertions
with citations to admissible evidence, and the Court is not required to search the
record for a party. Fed. R. Civ. P. 56(a), (c). Here, Plaintiff in general does not
specifically dispute Defendants’ asserted summary judgment facts, or cite to
evidence in support of his disputes. Fed. R. Civ. P. 56; D.N.M. LR-Civ. 56.1
(Doc. 7 at 5.) Wiggins fails to mount any colorable argument in his Notice of Appeal that he
adequately disputed the summary judgment facts or supported his factual assertions with citations
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to admissible evidence. (See Doc. 119.) Thus, the Court finds this “argument[] of error [is] wholly
without merit.” See Spearman, 500 F. App’x at 743.
Finally, Wiggins asserts that “not answering the defendants answers . . . should not be a
valid grounds for this court to dismiss a valid claim . . . .” (Doc. 119 at 2.) He alleges that “proof
of prejudice is defendants summit et al, did not make any answer, and was not looked at after any
of that?.” (Id.) This issue references Wiggins’s objection that the “Summit Defendants did not file
an answer or respond to any filings.” (See Doc. 117 at 3.) The Court disagreed with the objection
and noted that the Summit Defendants had filed an answer and responded to the Court’s order “to
state whether and to what degree they joined the NMCD Motion . . . .” (See id. (citing Docs. 54;
61; 86; 92).) The Court found that Wiggins failed to make clear what he was referring to “in
claiming that [the] Summit Defendants did not answer.” (See id.) The same holds true in his Notice
of Appeal, where Wiggins fails to flesh out this issue or support his argument with “an arguable
basis in either law or fact.” See Thompson, 289 F.3d at 1222.
In short, the Court finds that Wiggins’s appeal is frivolous, because he fails to support his
arguments of error with law or fact. Accordingly, the Court will DENY his Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915. (Doc. 123.)

______/S/_________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE

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