Sherrell v. Univ. of N.M.

349 F. Supp. 3d 1083
CourtDistrict Court, D. New Mexico
DecidedNovember 13, 2018
DocketNo. CIV 18-0408 JB\JHR
StatusPublished

This text of 349 F. Supp. 3d 1083 (Sherrell v. Univ. of N.M.) is published on Counsel Stack Legal Research, covering District Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherrell v. Univ. of N.M., 349 F. Supp. 3d 1083 (D.N.M. 2018).

Opinion

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 May 1, 2018 (Doc. 1)("Complaint"); and (ii) the Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, filed May 1, 2018 (Doc. 3)("Application"). Plaintiff Dennis Paul Sherrell, Jr., appears pro se. For the reasons set out below, the Court will: (i) grant Sherrell's Application; and (ii) dismiss this case without prejudice for failure to state a claim upon which relief can be granted.

PROCEDURAL BACKGROUND

Sherrell filed his Complaint using the form "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983." Sherrell alleges that: (i) he was "[e]scorted off campus in squad-car (patrol vehicle) & interrogated of Protected Health Information under threat of arrest for trespassing at Publicly Funded University;" (ii) an "Emergency Ban [was] Enacted;" and (iii) "Denied medical services & records." Complaint at 2-4. Besides these factual allegations, Sherrell provides little else to support his claim for relief. See Complaint at 2-4. Sherrell references 18 U.S.C. § 245, Federally protected activities, 18 U.S.C. § 241, Conspiracy against rights, and "Visitor Polic[ies]" relating to "Emergency Analog," "Hacking," "Potential for great harm," and "Interfering with Freedom of Speech." Complaint at 3.

Sherrell's Application states that: (i) his "[a]verage monthly income amount during the past 12 months" was "Aprox. $1010.00" in disability, public-assistance and other sources; (ii) he is unemployed; (iii) his "average monthly expenses" total $1010.00; and (iv) he has no cash and no money in bank accounts. Application at 1-5. Sherrell signed an "Affidavit in Support of the Application," stating that he "is unable to pay the costs of these proceedings" and declaring under penalty of perjury that the information he provides in the Application is true. Application at 1.

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 *1086a 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 ....

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 F. App'x 667, 669 (10th Cir. 2008) (unpublished)(citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988) ).1 "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 F. App'x 977, 979 (10th Cir. 2002) (unpublished)(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).2

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

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Bluebook (online)
349 F. Supp. 3d 1083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherrell-v-univ-of-nm-nmd-2018.