Vigil v. Doe, No. CIV 19-0164 JB\JFR

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
Citation405 F.Supp.3d 1058
Parties Jacob VIGIL, Plaintiff, v. John DOE, aka Google LLC, Defendant.
Docket NumberNo. CIV 19-0164 JB\JFR
Decision Date31 July 2019

405 F.Supp.3d 1058

Jacob VIGIL, Plaintiff,
v.
John DOE, aka Google LLC, Defendant.

No. CIV 19-0164 JB\JFR

United States District Court, D. New Mexico.

Filed July 31, 2019


405 F.Supp.3d 1062

Jacob Vigil, Albuquerque, New Mexico, Plaintiff pro se.

MEMORANDUM OPINION AND ORDER OF DISMISSAL

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court, under 28 U.S.C. § 1915 and rule 12(b)(6) of the Federal Rules of Civil Procedure, on: (i) the Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, filed February 28, 2019 (Doc. 1)("Complaint"); and (ii) the Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs, filed February 28, 2019 (Doc. 2)("Application"). Plaintiff Jacob Vigil appears pro se. For the reasons set out below, the Court will: (i) grant Vigil's Application; and (ii) dismiss this case without prejudice for failure to state a claim upon which relief can be granted.

PROCEDURAL BACKGROUND

Vigil filed his Complaint using the form "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983." Complaint at 1. Vigil alleges: "John Doe, using Google LLC's online platform, is violating my copyrights and trademarks. This is a copyright violater [sic] who I'm attempting to identify via administrative subpoena." Complaint at 2. Vigil states: "The D.M.C.A. copyright takedown notice states the user email addresses

405 F.Supp.3d 1063

of the copyright infringer." Complaint at 3. Vigil attaches a "Safe Harbor DMCA takedown notice" to the Complaint. See "Safe Harbor" DMCA takedown notice, filed February 28, 2019, (Doc. 1-1). Vigil seeks: "Identifying information of the users listed in the D.M.C.A. take down notice, including names, addresses, and phone numbers." Complaint at 5.

Vigil's Application states that: (i) he is "unable to pay the costs of these proceedings"; (ii) he is "unemployed"; (iii) he has no "take-home pay or wages" or "Other Income"; (iv) he has "less than $50" "in cash or in a checking or savings account"; and (v) his "housing, transportation, utilities, or loan payments, or other regular monthly expenses" include "RENT $680 + utilit[i]es (I am late. Borrowing from friends)." Application at 1-2. Vigil signed a "Declaration," declaring under penalty of perjury that the information he provides in the Application is true. Application at 2.

LAW REGARDING PROCEEDINGS IN FORMA PAUPERIS

The statute for proceedings in forma pauperis ("IFP"), 28 U.S.C. § 1915(a), 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 which 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 Dep't, 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

405 F.Supp.3d 1064

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 1106, 1110 (10th Cir. 1991). "[I]f the Court can reasonably read the pleadings to state a valid claim on which [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 status does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure." Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).

LAW REGARDING IFP COMPLAINTS

The Court has discretion to dismiss an IFP complaint sua sponte pursuant to § 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." The Court also has discretion to dismiss a complaint sua sponte under rule 12(b)(6) 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

405 F.Supp.3d 1065

be futile." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney v. Oklahoma Dep't of Human Services, 925 F.2d 363, 365 (10th Cir. 1991) ). To survive dismissal under rule 12(b)(6), a plaintiff must allege sufficient facts, accepted as true, to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In the context of a pro se complaint, the Court applies the same legal standards that apply to pleadings that counsel draft, but liberally construes the complaint's allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992).

LAW REGARDING DISMISSAL FOR FAILURE TO STATE A CLAIM

The Court has the discretion to dismiss an in forma pauperis complaint sua sponte...

To continue reading

Request your trial
1 practice notes
  • State Bank of S. Utah v. Beal (In re Beal), Bankruptcy Case No. 19-20276
    • United States
    • U.S. Bankruptcy Court — District of Utah
    • March 31, 2020
    ...of SBSU's complaint deprives this Court of jurisdiction to consider it are incorrect in light of Kontrick .85 Vigil v. Doe , 405 F. Supp. 3d 1058, 1067 (D.N.M. 2019) (citing Fed. R. Civ. P. 8(c) ).86 E.g. , Jones v. Bock , 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) ("If the al......
1 cases
  • State Bank of S. Utah v. Beal (In re Beal), Bankruptcy Case No. 19-20276
    • United States
    • U.S. Bankruptcy Court — District of Utah
    • March 31, 2020
    ...of SBSU's complaint deprives this Court of jurisdiction to consider it are incorrect in light of Kontrick .85 Vigil v. Doe , 405 F. Supp. 3d 1058, 1067 (D.N.M. 2019) (citing Fed. R. Civ. P. 8(c) ).86 E.g. , Jones v. Bock , 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) ("If the al......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT