Smith v. Hartley et al

Filing 12

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera striking 7 Order Denying Motion to Proceed In Forma Pauperis; granting 2 Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs; and, dismissing 1 Plaintiff's Civil Rights Complaint without prejudice. Plaintiff may file an amended complaint within 21 days of entry of this Order as further described herein. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MELISSA SMITH,
Plaintiff,
v.

No. 17cv1021 JCH/KRS

MICHAEL HARTLEY and
JAKE VU,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS
AND DISMISSING 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 October 10, 2017 (“Complaint”), on her Application to
Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed May 10, 2017
(“Application”), and on the Court’s Order Denying Motion to Proceed In Forma Pauperis, Doc. 7,
filed November 30, 2017. For the reasons stated below, the Court will STRIKE the Order
Denying Motion to Proceed In Forma Pauperis, GRANT Plaintiff’s Application to proceed in
forma pauperis and DISMISS Plaintiff’s Complaint without prejudice. Plaintiff shall have 21
days from entry of this Order to file an amended complaint. Failure to timely file an amended
complaint may result in dismissal of this case without prejudice.
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....” 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 strike the Order Denying Motion to Proceed In Forma Pauperis, Doc. 7,
which was entered by United States Magistrate Judge Kevin R. Sweazea, because Magistrate
Judges have no authority to deny such motions. See Lister v. Dep't of the Treasury, 408 F.3d
1309, 1311-1312 (10th Cir. 2005) (magistrate judges have no authority to enter an order denying
IFP status because denial of an IFP motion is the functional equivalent of an involuntary dismissal
and is outside the scope of a magistrate judge's authority).
The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit declaring that she is unable to pay the costs of these
proceedings and provided the following information: (i) her average monthly income during the

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past 12 months was $1,800.00;1 (ii) her monthly expenses are $1,725.00; (iii) she has no cash and
no money in bank accounts; and (iv) she owns no assets. The Court finds that Plaintiff is unable
to pay the filing fee because her monthly income during the past year exceeded her monthly
expenses by only $75.00.
Dismissal of Proceedings In Forma Pauperis
The statute governing proceedings in forma pauperis requires federal courts to dismiss an
in forma pauperis proceeding that “fails to state a claim on which relief may be granted; ... or seeks
monetary

relief

against

a

defendant

who

is

immune

from

such

relief.”

See

28 U.S.C. § 1915(e)(2). “Dismissal of a pro se complaint for failure to state a claim is proper
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.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).
“In determining whether a dismissal is proper, we must accept the allegations of the complaint as
true and construe those allegations, and any reasonable inferences that might be drawn from them,
in the light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d at 1217. The Court looks to
the specific allegations in the complaint to determine whether they plausibly support a legal claim
for relief, i.e. the factual allegations must be enough to raise a right to relief above the speculative
level. See id. at 1218 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Dismissal of
an in forma pauperis complaint as frivolous is not an abuse of discretion based on a determination
that the pro se litigant did not state a viable legal claim and that the complaint consisted of little
more than unintelligible ramblings. Triplett v. Triplett, 166 Fed.Appx. 338, 339-340 (10th Cir.
1

The Application shows Plaintiff’s expected income next month is $2,300.00, but “an 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)).
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2006). However, “pro se litigants are to be given reasonable opportunity to remedy the defects in
their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).
As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”); Evitt v. Durland, 243 F.3d
388 *2 (10th Cir. 2000) (“even if the parties do not raise the question themselves, it is our duty to
address the apparent lack of jurisdiction sua sponte”) (quoting Tuck v. United Servs. Auto. Ass'n,
859 F.2d 842, 843 (10th Cir.1988).

“If the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action”. Fed. R. Civ. P. 12(h)(3).
Plaintiff alleges that while she “went through all the proper procedures,” Defendants did
not follow the proper procedure, abused their authority and did not issue a patent to Plaintiff. See
Complaint at 1-2. Plaintiff seeks “All rights to my invention, all back compensation and my
patent being approved.” Complaint at 5.
The Court will dismiss Plaintiff’s Complaint for lack of jurisdiction and for failure to state
a claim. Plaintiff’s Complaint does not contain “a short and plain statement of the grounds for the
court’s jurisdiction” as required by Rule 8(a)(1) of the Federal Rules of Civil Procedure. In
addition, Plaintiff filed her Complaint using the form “Civil Rights Complaint Pursuant to
42 U.S.C. § 1983” and checked the box indicating that Defendants were acting under color of
state law. However, there are no factual allegations showing that Defendants are state actors.
Plaintiff shall have 21 days from entry of this Order to file an amended complaint. Failure
to timely file an amended complaint may result in dismissal of this case without prejudice.

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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 Defendants at this time.
The Court will order service if Plaintiff timely files an amended complaint which shows this Court
has jurisdiction, states a claim, and includes the addresses of every defendant named in the
amended complaint.
Plaintiff’s Letter to Magistrate Judge Sweazea
Plaintiff sent a letter to Magistrate Judge Sweazea asking him to dismiss her case. See
Doc. 10, filed December 7, 2017. She cites several factors contributing to her decision to request
dismissal of this case, including “financial hardship.” It appears that Plaintiff sent the letter after
Magistrate Judge Sweazea denied her Application to proceed in this Court without prepaying fees
and costs. The Court has now granted Plaintiff’s Application to proceed in this Court without
prepaying fees and costs. The Court will not dismiss this case at this time. The Court will
dismiss this case if Plaintiff does not file an amended complaint within 21 days of entry of this
order.
IT IS ORDERED that:
(i) the Court’s Order Denying Motion to Proceed In Forma Pauperis, Doc. 7, filed
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November 30, 2017, is STRICKEN;
(ii) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs,
Doc. 2, filed October 10, 2017, is GRANTED; and
(iii) Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed October
10, 2017, is DISMISSED without prejudice. Plaintiff may file an amended complaint within 21
days of entry of this Order.

__________________________________
UNITED STATES DISTRICT JUDGE

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