Garcia v. Cole, No. CIV 18-1032 JB\KK

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: James O. Browning, UNITED STATES DISTRICT JUDGE
• Citation: 428 F.Supp.3d 644
• Parties: Anthony GARCIA, Plaintiff, v. Erich F. COLE, Trudy Red-Chase, Barry D. Sharer, Bradford J. Dalley, Scott Sandefer, Kyle Davis, A. Sanchez, M. Chapman, Sandra Fields, State of New Mexico, Inc., Defendants.
• Decision Date: 20 September 2019
• Docket Number: No. CIV 18-1032 JB\KK

428 F.Supp.3d 644

Anthony GARCIA, Plaintiff,
v.
Erich F. COLE, Trudy Red-Chase, Barry D. Sharer, Bradford J. Dalley, Scott Sandefer, Kyle Davis, A. Sanchez, M. Chapman, Sandra Fields, State of New Mexico, Inc., Defendants.

No. CIV 18-1032 JB\KK

United States District Court, D. New Mexico.

Filed September 20, 2019

428 F.Supp.3d 647

Anthony Garcia, Los Lunas, New Mexico, Plaintiff pro se.

Sandra Fields, Aztec, New Mexico, Defendant pro se.

Rich Tedrow, Farmington, New Mexico, Defendant pro se.

Erich Cole, Aztec, New Mexico, Defendant pro se.

Trudy Red-Chase, Aztec, New Mexico, Defendant pro se.

Barry Sharer, Aztec, New Mexico, Defendant pro se.

Bradford Dalley, Aztec, New Mexico, Defendant pro se.

Amy L. Glasser, Potts & Associates, Albuquerque, New Mexico, Attorney for Defendants Scott Sandefer, Kyle Davis, A. Sanchez, and M. Chapman

MEMORANDUM OPINION AND ORDER OF DISMISSAL

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion to Proceed in District Court Without Prepaying Fees or Costs, filed November 6, 2018 (Doc. 3)("Application"); and (ii) Defendants Scott Sandefer, Kyle Davis, Anthony Sanchez and Marvin Chapman's Rule 12(b)(6) Motion to Dismiss, filed November 26, 2018 (Doc. 5)("Motion to Dismiss"). Plaintiff Anthony Garcia appears pro se. The primary issues are: (i) whether Garcia is unable to pay the costs of these proceedings; and (ii) whether the Complaint states a claim on which relief may be granted. For the reasons set out below, the Court will: (i) grant Garcia's Application; (ii) grant Defendants Sandefer, Davis, Sanchez and Chapman's Motion to Dismiss; and (iii) dismiss this case without prejudice for failure to state a claim on which relief can be granted.

PROCEDURAL BACKGROUND

Garcia filed a Decree Injunction over State of New Mexico, Inc. and Causal Agent(s) for Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 Relief Due to Violation of Plaintiff's 5th Amendment Rights to Due Process, Constitutional Violations, Conspiracy Against Rights, Deprivation of Rights Under Color of Law, Fraud, Unlawful Taking of Property in Disregard to Original Laws, for Violation of Equal Protection Under the Law ..., filed November 6, 2018 (Doc. 1)("Complaint"). The Complaint states: "This Honorable Court DECREE Injunction mandate the STATE OF NEW MEXICO and Casual Agency(s) to stop any further LEGAL action." Complaint ¶ 1, at 2. The Complaint does not allege any facts regarding the Defendants' actions or how those actions harmed Garcia, and states: "I, Anthony Garcia, Plaintiff, Aggrieved Party, an Injured Party shall enter an amended petition with all the particulars as a Testimony in a form of an Affidavit." Complaint ¶ 4, at 3. Garcia has not filed an amended petition.

Garcia's Application states: (i) his "[a]verage monthly income amount during the past 12 months" is $1,600.00; (ii) his "[t]otal monthly expenses" are $1,475.00; (iii) he is unemployed; (iv) he has no cash and no money in bank accounts; and (v) his daughter relies on him for support. Application at 2-3, 5. Garcia signed an "Affidavit in Support of the Application," stating "I am unable to pay the costs of these proceedings" and declaring under penalty of perjury that the information he provided in the Application is true. Application at 1.

428 F.Supp.3d 648

Defendants Scott Sandefer, Kyle Davis, A. Sanchez, and M. Chapman filed the Motion to Dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, stating:

The Complaint is so lacking in any comprehensible statement of facts or claims, defendants are unable to determine what or when, if anything, they allegedly did and, if so what injury plaintiff is even claiming. As no facts have been plead, none can be accepted as true as required by Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The only thing clear about the complaint is that it fails to state a claim to relief that is plausible on its face. Therefore, the complaint should be dismissed.

Motion to Dismiss at 4. Garcia has not filed a response opposing the Motion to Dismiss.

LAW REGARDING PROCEEDINGS IN FORMA PAUPERIS

The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a) ("IFP"), provides that a district 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. App'x. 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. App'x. 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, 69 S.Ct. 85, 93 L.Ed. 43 (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." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. at 339, 69 S.Ct. 85 (internal quotation marks omitted). While the district court should not deny a person the opportunity to proceed under 28 U.S.C. § 1915(a) simply because he or she is not "absolutely destitute," the court may deny permission for a person to proceed IFP where his or her monthly income exceeds his or her monthly expenses by a few hundred dollars. Brewer v. City of Overland Park Police Department, 24 Fed. App'x. 977, 979 (10th Cir. 2002) (stating that a litigant whose monthly income exceeded his monthly expenses by a few hundred dollars according to his own accounting appeared to have sufficient income to pay filing fees, and, thus, was not entitled to IFP status).¹

428 F.Supp.3d 649

The district court may grant a motion to proceed IFP even if the complaint fails to state a claim, and the court must thereby dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2). See Buchheit v. Green, 705 F.3d 1157, 1160-61 (10th Cir. 2012) ("There is simply nothing in the language of the statute [regarding IFP proceedings, 28 U.S.C. § 1915,] indicating that such a dismissal must occur before the grant of a motion to proceed IFP.").

[I]f an application to proceed in forma pauperis is supported by papers satisfying the requirements of 28 U.S.C.A. § 1915(a) leave to proceed should be granted, and then, if the court discovers that the action is frivolous or improper or that the allegations of poverty are untrue, it can dismiss the proceeding under 28 U.S.C.A. § 1915(d).

Oughton v. United States, 310 F.2d 803, 804 (10th Cir. 1962) (citations omitted).

The district court has the discretion to dismiss an IFP complaint sua sponte under § 1915(e)(2) "at any time if the action ... is frivolous or malicious; [or] fails to state a claim upon which relief may be granted." 28 U.S.C. § 1952(e)(2). The district court also may dismiss a complaint sua sponte under rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim if "it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney v. Okla. Dep't of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991) ). A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (" Twombly"). In reviewing the Complaint, the district court applies the same legal standards applicable to pleadings that an attorney drafts, but liberally construes the allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992).

LAW REGARDING PRO SE LITIGANTS

When a party proceeds pro se, a court construes his or her pleadings liberally, and holds them "to a less stringent standard than [that applied to] formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d at 1110. "[I]f the Court can reasonably read the pleadings to state a valid claim on which [the petitioner] could prevail, it should do so despite [his] failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d at 1110. The Court will not, however, "assume the role of advocate for the pro se litigant." Hall v. Bellmon, 935 F.2d at 1110. "[P]ro se...