Johnson v. Lueras

Filing 5

MEMORANDUM OPINION AND ORDER by Magistrate Judge Laura Fashing granting #2 MOTION for Leave to Proceed in forma pauperis and for Amended Complaint. (cda)

Case 1:22-cv-00678-LF Document 5 Filed 09/16/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PHATTBOY JOHNSON,
Plaintiff,
v.

No. 1:22-cv-00678-LF

TAMMY LUERAS,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
AND FOR AMENDED COMPLAINT
THIS MATTER comes before the Court on pro se Plaintiff's Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, Doc. 1, filed September 14, 2022, and Plaintiff's Application to
Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed September 14, 2022.
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

Case 1:22-cv-00678-LF Document 5 Filed 09/16/22 Page 2 of 4

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 grants 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 average monthly income during the past 12
months is $500.00; (ii) Plaintiff's monthly expenses total $300.00; (iii) Plaintiff has no cash and
$5.00 in a bank account; and (iv) Plaintiff is 19 years old, recently graduated from high school,
resides in his grandmother's house and will be employed after graduating from the Metropolitan
Detention Center Academy. The Court finds that Plaintiff is unable to pay the costs of this
proceeding because he signed an affidavit stating he is unable to pay the costs of these proceedings
and because his low income only slightly exceeds his monthly expenses. While the financial
information presented in Plaintiff's Application to proceed in forma pauperis appears to be
inconsistent with the allegations in the Complaint indicating that Plaintiff was attempting to
purchase a home, the Complaint also states that Plaintiff "qualified for a home loan and Down
Payment assistance." Complaint at 2.
The Complaint
Plaintiff alleges he submitted an offer through a real estate agent to purchase a home for
sale owned by Defendant, Defendant accepted the offer but rescinded the agreement and accepted
an offer from a Caucasian individual after she discovered Plaintiff was Black. See Complaint at 2.
Plaintiff filed his Complaint using the form "Civil Rights Complaint Pursuant to 42
U.S.C. § 1983" which states jurisdiction is invoked pursuant to 28 U.S.C. § 1343(3) and

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42 U.S.C. § 1983. Where the form Complaint prompts plaintiffs to list other statutes they wish to
assert jurisdiction under, Plaintiff wrote "n/a." Complaint at 2. Where the form Complaint
prompts plaintiffs to allege the rights that have been violated, Plaintiff wrote "Discrimination" but
did not identify any specific rights. Complaint at 3.
The Complaint fails to state a claim pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983
which provide jurisdiction and a remedy for actions based on the deprivation, under color of state
law, of rights secured by federal law. There are no allegations that Defendant was acting under
color of state law or describing the specific right Plaintiff believes Defendant violated. “[T]o state
a claim in federal court, a complaint must explain what each defendant did to him or her; when the
defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the
plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe
County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (emphasis added).
Proceeding in forma pauperis
Plaintiff is proceeding in forma pauperis. The statute governing proceedings in forma
pauperis states "the court shall dismiss the case at any time if the court determines that . . . the
action . . . fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see also
Webb v. Caldwell, 640 Fed.Appx. 800, 802 (10th Cir. 2016) ("We have held that a pro se complaint
filed under a grant of ifp can be dismissed under § 1915(e)(2)(B)(ii) for failure to state a claim ...
only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would
be futile to give him an opportunity to amend"). While the Complaint can be dismissed under
§ 1915(e)(2)(B)(ii) for failure to state a claim, it is not obvious that it would be futile to give
Plaintiff an opportunity to amend.

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Service on Defendant
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). The Court will not
order service at this time because the Complaint fails to state a claim upon which relief can be
granted over which the Court has jurisdiction. The Court will order service if Plaintiff files: (i) an
amended complaint that states a claim over which the Court has jurisdiction; and (ii) a motion for
service which includes the address of each Defendant.
Case Management
Generally, pro se litigants are held to the same standards of professional
responsibility as trained attorneys. It is a pro se litigant’s responsibility to become
familiar with and to comply with the Federal Rules of Civil Procedure and the
Local Rules of the United States District Court for the District of New Mexico (the
“Local Rules”).
Guide for Pro Se Litigants at 4, United States District Court, District of New Mexico (November
2019). The Local Rules, the Guide for Pro Se Litigants and a link to the Federal Rules of Civil
Procedure are available on the Court’s website: http://www.nmd.uscourts.gov.
IT IS ORDERED that:
(i)

Plaintiff's Application to Proceed in District Court Without Prepaying Fees or
Costs, Doc. 2, filed September 14, 2022, is GRANTED.

(ii)

Plaintiff shall, within 21 days of entry of this Order, file an amended complaint.
Failure to timely file an amended complaint may result in dismissal of this case.

_____________________________________
Laura Fashing
United States Magistrate Judge

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