Al-Villar v. Donley, No. CIV 12–0896 JB/CG.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING
Citation971 F.Supp.2d 1084
PartiesJolee AL–VILLAR, Plaintiff, v. Michael B. DONLEY, Secretary of United States Air Force; Dr. Thomas E. Bretz, Jr., Air Force Research Laboratory Supervisor, Defendants.
Decision Date03 September 2013
Docket NumberNo. CIV 12–0896 JB/CG.

971 F.Supp.2d 1084

Jolee AL–VILLAR, Plaintiff,
v.
Michael B. DONLEY, Secretary of United States Air Force; Dr. Thomas E. Bretz, Jr., Air Force Research Laboratory Supervisor, Defendants.

No. CIV 12–0896 JB/CG.

United States District Court,
D. New Mexico.

Sept. 3, 2013.


[971 F.Supp.2d 1087]


Pia Gallegos, Albuquerque, NM, Amelia P. Nelson, APNLAW, LLC, Albuquerque, NM, for Plaintiff.


MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Magistrate Judge's Analysis and Recommended Disposition, filed October 18, 2012 (Doc. 12)(“ARD”); and (ii) the Plaintiff's Right to Request No Court Fees, Court Costs, or Other Security, filed August 23, 2012 (Doc. 2). The primary issues are: (i) whether the Court should permit Plaintiff Jolee Al–Villar, who is proceeding pro se, to prosecute her case without paying court costs or other fees under 42 U.S.C. § 2000e–5(f)(1); and (ii) whether denial of a motion to commence a lawsuit without paying court costs or other fees under 42 U.S.C. § 2000e–5(f)(1) of Title VII of the Civil Rights Act of 1964, which provides that “[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security,” requires the Court to dismiss the lawsuit. The Court will adopt the ARD, which recommends the Court deny Al–Villar's motion and order her to pay court costs and fees. A district court must dismiss the case when the court denies a motion to proceed in forma pauperis under 28 U.S.C. § 1915 for, among other reasons, finding that the movant's affirmation of poverty is untrue. See28 U.S.C. § 1915(e)(2)(A). Because courts have not required a plaintiff to show or allege poverty when requesting a court-appointed attorney under 42 U.S.C. § 2000e–5(f)(1), thus treating the inquiry under this section differently from a request for a court-appointed attorney under 28 U.S.C. § 1915(e)(1), the Court concludes that the analysis of a plaintiff's request to proceed without paying court costs and fees under each provision should also be distinct. Given, therefore, that 42 U.S.C. § 2000e–5(f)(1) does not have language analogous to 28 U.S.C. § 1915(e)'s language requiring a court to dismiss a case when it denies a motion, the Court concludes that denial of a motion to commence a lawsuit without paying court costs or other fees, when brought under 42 U.S.C. § 2000e–5(f)(1), does not require dismissal of the case if the plaintiff does not first pay the court costs and fees and is not alleging poverty as the basis for so proceeding. Accordingly, the Court adopts the portion of the

[971 F.Supp.2d 1088]

ARD which recommends that the Court order Al–Villar to pay the filing fees and does not recommend dismissing the case.

PROCEDURAL BACKGROUND

Al–Villar filed a Complaint alleging employment discrimination and retaliation, because she is a transgendered woman, by her former supervisors at the Air Force Research Laboratory located in Albuquerque, New Mexico. See Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 at 2, filed August 20, 2012 (Doc. 1)(“Complaint”). Al–Villar makes claims under the Equal Pay Act, and, although she alleges jurisdiction only under 28 U.S.C. § 1343(3) and § 1983, she mentions “Discrimination Title VII” in the body of her Complaint. See Complaint at 2. After Al–Villar filed documents entitled “Right to Request Counsel,” filed August 20, 2012 (Doc. 3), and “Right to Request No Court Fees, Court Costs, or Other Security,” filed August 20, 2012 (Doc. 4), the Honorable Carmen E. Garza, United States Magistrate Judge, construed them as motions, and issued an Order to Show Cause, filed August 23, 2012 (Doc. 7), requiring the Al–Villar to submit a financial affidavit that sets out her monthly income and expenses. See Order To Show Cause at 1. Al–Villar complied with the Order and submitted a financial affidavit. See Response to Order to Show Cause, filed August 30, 2012 (Doc. 8). Based on the language in the Al–Villar's requests and her citation to Title VII in the body of her Complaint, Judge Garza construed Al–Villar's requests as ones brought pursuant to 42 U.S.C. § 2000e–5(f)(1) of Title VII of the Civil Rights Act of 1964. Judge Garza subsequently entered an order denying Al–Villar's request for appointment of counsel, rejecting Al–Villar's contention that she can not afford counsel and finding, after a review of the financial affidavit, that the “Plaintiff has the financial ability to afford counsel, especially given the willingness of most civil-rights attorneys in this District to represent clients who have meritorious cases on a contingency-fee basis.” Order Denying Motion to Appoint Counsel at 6–7, filed October 18, 2012 (Doc. 11).

Judge Garza also prepared an ARD on Al–Villar's request to proceed without paying costs and fees. See ARD at 2. Judge Garza, in the ARD, noted:

The Tenth Circuit has held that an order denying a motion to proceed without paying fees and costs brought under 28 U.S.C. § 1915 is dispositive under Fed.R.Civ.P. 72(b) and cannot be issued by a magistrate judge, see Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005); Trujillo v. Williams, 465 F.3d 1210, 1217 n. 5 (10th Cir.2006) (noting that dismissal under § 1915(e) of suits filed without prepayment of filing fees by a plaintiff who is not actually indigent is mandatory). There is no similar statutory requirement that a complaint filed by a Title VII plaintiff who files the complaint without prepaying filing fees, but whose motion to proceed without paying filing fees brought under 42 U.S.C. § 2000e–5(f)(1) is denied, must also be mandatorily dismissed, thus an order denying the request does not appear to be dispositive. I have found no controlling or persuasive precedent that prohibits a magistrate judge from denying a motion to proceed without paying costs and fees brought under 42 U.S.C. § 2000e–5(f)(1). But because the requests and analysis are similar, I have concluded that, instead of issuing an order denying such permission in this case, I should file a report and recommendation for the district judge's review.

[971 F.Supp.2d 1089]

ARD at 1–2 n. 2.1 Citing and analyzing relevant legal authority, Judge Garza concluded that “the proper inquiry to determine whether the Court should grant permission for Al–Villar to proceed without paying her costs and filing fees is whether she can pay for those fees and still meet her reasonable daily expenses for support.” ARD at 3–5. Based upon her review of the financial affidavit that Al–Villar submitted, Judge Garza concluded that Al–Villar, who receives “$3070/month in retirement benefits and $397/month in unemployment benefits,” and has “almost $5000 in her checking/savings accounts and owns her own home worth $250,000 and a car worth $15,000 (with no automobile loan),” has “a steady stream of income that is more than enough to cover her monthly expenses for a fairly high standard of living, and there is plenty of money in her checking account to pay for the filing fees.” ARD at 4–5. Judge Garza recommended that the Court deny Al–Villar's request for permission to proceed without paying filing fees and costs, see ARD at 4–5, and informed Al–Villar that she had fourteen days to object to the analysis and recommendation, see ARD at 1 n. 1. Judge Garza did not make a finding anywhere in her ARD that, under § 1915(e)(2)(A), any “allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). See generally ARD at 1–5.


Al–Villar misconstrued the ARD as an “Order denying motion to proceed under 28 USC § 1915”; filed no objections to the ARD; paid the filing fees; and requested “court process continuance.” Response to Order Denying motion to proceed under 28 USC § 1915 at 1, filed October 31, 2012 (Doc. 14). Subsequently, on February 19, 2013, by and through her attorneys—the Pia Gallegos Law Firm, P.C. and APNLAW, LLC—Al–Villar filed her Amended Complaint. See Doc. 15.

RELEVANT LAW REGARDING MOTIONS TO PROCEED IN FORMA PAUPERIS

“The federal in forma pauperis statute, codified at 28 U.S.C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit.” Denton v. Hernandez, 504 U.S. 25, 27, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Section 1915(a) of Title 28 of the United States Code provides:

[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a). To prove inability to pay court costs and fees, the Supreme Court of the United States has held: “We think 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.’ ” Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 203, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993)(quoting

[971 F.Supp.2d 1090]

Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 93 L.Ed. 43 (1948)). Although Congress' language throughout 28 U.S.C. § 1915 sometimes refers to the movant as prisoner or as person, the United States Court of Appeals for the Tenth Circuit has noted that “despite the statute's use of the phrase ‘prisoner possesses,’ the affidavit requirement applies to all persons requesting leave to proceed I [n] F[orma] P[auperis].” Lister v. Dep't of Treasury, 408 F.3d at 1312 (quoting Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n. 1 (11th Cir.2004)).


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  • Weller v. HSBC Mortg. Servs., Inc., Civil Case No. 13–cv–00185–REB–MJW.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 11, 2013
    ...Inc.; and American Security Insurance Company, SHALL PROCEED to arbitration of the individual claims of plaintiff, Jack Weller; [971 F.Supp.2d 1084] 4. That the claims of plaintiff, Jack Weller against defendants, HSBC Mortgage Services, Inc.; Assurant, Inc.; and American Security Insurance......
  • Bock v. Salt Creek Midstream LLC, Civ. No. 19-1163 WJ/GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 22, 2020
    ...to consider relevant evidence of record and not merely review the magistrate judge's recommendation'. . . ." Al-Villar v. Donley, 971 F.Supp.2d 1084, 1096 (D.N.M. 2013) (quoting In re Griego, 64 F.3d 580, 583-84 (10th Cir.1995)). In conducting a de novo review, a court "should mak......
  • Vigil v. Taintor, No. 14-CV-01150-MV-KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 15, 2015
    ...734, 737 (10th Cir. 2009) (quoting United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)). See also Al-Villar v. Donley, 971 F. Supp. 2d 1084, 1095 (D.N.M. 2013) ("In addition to requiring specificity in objections, the Tenth Circuit has stated that [i]ssues raised for the f......
3 cases
  • Weller v. HSBC Mortg. Servs., Inc., Civil Case No. 13–cv–00185–REB–MJW.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 11, 2013
    ...Inc.; and American Security Insurance Company, SHALL PROCEED to arbitration of the individual claims of plaintiff, Jack Weller; [971 F.Supp.2d 1084] 4. That the claims of plaintiff, Jack Weller against defendants, HSBC Mortgage Services, Inc.; Assurant, Inc.; and American Security Insurance......
  • Bock v. Salt Creek Midstream LLC, Civ. No. 19-1163 WJ/GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 22, 2020
    ...to consider relevant evidence of record and not merely review the magistrate judge's recommendation'. . . ." Al-Villar v. Donley, 971 F.Supp.2d 1084, 1096 (D.N.M. 2013) (quoting In re Griego, 64 F.3d 580, 583-84 (10th Cir.1995)). In conducting a de novo review, a court "should mak......
  • Vigil v. Taintor, No. 14-CV-01150-MV-KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 15, 2015
    ...734, 737 (10th Cir. 2009) (quoting United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)). See also Al-Villar v. Donley, 971 F. Supp. 2d 1084, 1095 (D.N.M. 2013) ("In addition to requiring specificity in objections, the Tenth Circuit has stated that [i]ssues raised for the f......

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