Opinion
23-2052-HLT-ADM
02-16-2023
ADELINO MERCADO, JR., et al., Plaintiffs, v. GREGORY KALESCKY, on behalf of Transport Funding, LLC, et al., Defendants.
ORDER
Angel D. Mitchell U.S. Magistrate Judge
This matter comes before the court on pro se plaintiffs Adelino Mercado, Jr. and Elizabeth Garibay-Mercado's Motion to Proceed Without Prepayment of Fees. (ECF 3.) Plaintiffs are husband and wife, and are joint signatories on a vehicle loan that is the subject of this lawsuit. They each have submitted a financial affidavit, and it appears they share living expenses.
Title 28 U.S.C. § 1915 allows courts to authorize commencing a civil action “without prepayment of fees or security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” Proceeding in forma pauperis (“IFP”) “in a civil case is a privilege, not a right-fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). The decision to grant or deny IFP status under § 1915 lies within “the sound discretion of the district court.” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). After carefully reviewing the information plaintiffs provided in their financial affidavits in support of their motion, the court waives the filing fee required for them to commence this civil action. Plaintiffs are granted leave to proceed IFP.
When a plaintiff proceeds IFP, the court may screen the complaint under 28 U.S.C. § 1915(e)(2)(B). The court may dismiss the complaint if it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court has screened plaintiffs' complaint. Although the factual allegations therein are not very specific, the court is satisfied that they are sufficient to plausibly state at least one viable claim.
IT IS THEREFORE ORDERED that plaintiffs' Motion to Proceed Without Prepayment of Fees (ECF 3) is granted.
IT IS FURTHER ORDERED that the Clerk shall issue a summons for the defendants, and service of the summonses and copies of the complaint shall be effected by the United States Marshal or a Deputy United States Marshal, both of whom are appointed for such purpose pursuant to Fed.R.Civ.P. 4(c)(3).
IT IS SO ORDERED.