Thigpen v. AmeriFirst Financial, Inc.

• Court: District Court, D. New Mexico
• Decided: August 17, 2023
• Docket: 1:23-cv-00681
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO RICHARD THOMAS THIGPEN, Plaintiff, v. No. 1:23-cv-00681-LF

AMERIFIRST FINANCIAL, INC., Defendant. MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND ORDER REGARDING NOTICE AND WAIVER THIS MATTER comes before the Court on pro se Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed August 16, 2023. 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). “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 grants Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit stating he is unable to pay the costs of these proceedings

and provided the following information: (i) Plaintiff's average monthly income amount during the past 12 months is $1,800.00; (ii) Plaintiff’s monthly expenses total $2,865.00; (iii) Plaintiff has $20.00 in cash and $450.00 in a bank account; and (iv) Plaintiff’s wife, who has no income, and Plaintiff’s two step-children rely on Plaintiff for support. The Court finds that Plaintiff is unable to pay the costs of this proceeding because he signed an affidavit stating he is unable to pay the costs of this proceeding and because his monthly expenses exceed his monthly income. Notice of Suit and Waiver of Service Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 which 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). Because Plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915, the Court orders the Clerk of the Court to notify Defendant, at the address provided by Plaintiff in his Complaint, that an action has been commenced and request that Defendant waive service pursuant to Fed. R. Civ. P. 4(d). Case Management Generally, pro se litigants are held to the same standards of professional responsibility as trained attorneys. It is a pro se litigant’s responsibility to become familiar with and to comply with the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the District of New Mexico (the “Local Rules”). Guide for Pro Se Litigants at 4, United States District Court, District of New Mexico (October 2022). The Local Rules, the Guide for Pro Se Litigants and a link to the Federal Rules of Civil Procedure are available on the Court’s website: http://www.nmd.uscourts.gov. IT IS ORDERED that: (i) Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed August 16, 2023, is GRANTED. (ii) The Clerk of the Court shall notify Defendant, at the address provided by Plaintiff in his Complaint, that an action has been commenced and request that Defendant waive service pursuant to Fed. R. Civ. P. 4(d). The notice shall include a copy of this Order, a waiver of service form, and a copy of Plaintiff's Complaint, Doc. 1, filed August 16, 2023. The Clerk shall mail the notice, waiver of service form, a copy of this Order and a copy of the Complaint to Defendant at the following address: AmeriFirst Financial, Inc. 1550 E. McKellips Road, Suite 117 Mesa, AZ 85203 If the docket shows that Defendant did not return the waiver within 45 days after mailing of the notice, waiver form, and copy of the Complaint, then Plaintiff shall file a motion requesting that officers of the Court serve a copy of the summons and Complaint on Defendant.

aaah box UNITED STATES MAGISTRATE JUDGE