Breeden v. Bailey et al
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera Granting Motion to Proceed In Forma Pauperis and Dismissing Case Without Prejudice (baw) (Additional attachment(s) added on 1/12/2018: # 1 Exhibit) (mjr).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT EARL BREEDEN,
No. 18cv21 JCH/GJF
ANTHONY WAYNE BAILEY, and
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING THIS CASE WITHOUT PREJUDICE
THIS MATTER comes before the Court on Plaintiff’s Application to Proceed in District
Court Without Prepaying Fees or Costs, Doc. 2, filed January 9, 2018 (“Application”), and on
Plaintiff’s Civil Complaint Under Title 42 U.S. Code § 1983, Doc. 1, filed January 9, 2018
(“Complaint”). For the reasons set forth below, the Court will GRANT Plaintiff’s Application
and DISMISS 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 grant Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs. Plaintiff signed an affidavit declaring that he is unable to pay the costs
of these proceedings and provided the following information: (i) his average monthly income
during the past 12 months was $2,118.00 and his expected income next month is $1,059.00; (ii)
his average monthly expenses are $1,430.00; (iii) he and his spouse do not have any cash and
have $350.00 in bank accounts; and (iv) his only assets are two vehicles. The Court finds that
Plaintiff is unable to pay the filing fee because he and his spouse have no cash and only $350.00
in bank accounts, and because his monthly expenses exceed his expected income next month.
Dismissal of Proceedings In Forma Pauperis
Defendant Bailey is a judge in Juvenile and Domestic Relations District Court in Page
County, Virginia. See Complaint at 2. Defendant Bailey issued a capias/detainer for Plaintiff’s
failure to pay child support and to appear. Plaintiff, who resides in New Mexico, was stopped by
local police who investigated the detainer by contacting Defendant Logan, who is an Assistant
Page County Attorney.
Defendant Logan stated that her office declined to have Plaintiff
extradited on the grounds that “it was not the interest of Virginia to extradite for a non Criminal
issue.” Complaint at 2. Plaintiff asserts that Defendants violated his Constitutional rights by
refusing to file and hear Plaintiff’s motion to dismiss the capias. The only relief Plaintiff seeks is
that the “detainer be withdrawn and redacted from the system.” Complaint at 3.
The Court has obtained a copy of the Recall of Process in Plaintiff’s case in Juvenile and
Domestic Relations District Court in Page County, Virginia. See Attachment 1. The Recall of
Process, signed by Defendant Bailey and dated January 10, 2018, commands the Page County
Sheriff’s Office “to return, without further attempt to serve” the capias entered in Plaintiff’s case
in Juvenile and Domestic Relations District Court in Page County, Virginia.
Because the Juvenile and Domestic Relations District Court in Page County, Virginia,
has recalled the capias, the Court will dismiss this case without prejudice as moot.
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
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 because it is
dismissing this case.
IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed January 9, 2018, is GRANTED.
IT IS ALSO ORDERED that this case is DISMISSED without prejudice.
UNITED STATES DISTRICT JUDG
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