Opinion
No. 16cv367 MV/WPL
05-26-2016
DARLA A. ORTEGA, Plaintiff, v. HUMAN SERVICES DEPARTMENT OF SANTA FE, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
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 April 29, 2016 ("Application"), and on her Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed April 29, 2016 ("Complaint"). For the reasons stated below, the Court will GRANT Plaintiff's Application and DISMISS Plaintiff's Complaint without prejudice. Plaintiff shall have 21 days from entry of this Order to file an amended complaint. Failure to timely file an amended complaint may result in dismissal of this case without prejudice. 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). "[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.Appx. 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 (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 will grant Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit declaring that she is unable to pay the costs of these proceedings and that the following information is true: (i) her monthly income is $800.00; (ii) her monthly expenses are $672.80; and (iii) her only asset is a vehicle valued at $2,000.00. Because because her low monthly income only slightly exceeds her monthly expenses, the Court finds that Plaintiff is unable to prepay the fees to initiate this action. Dismissal of Proceedings In Forma Pauperis
The statute governing proceedings in forma pauperis requires federal courts to dismiss an in forma pauperis proceeding that "is frivolous or malicious; ... fails to state a claim on which relief may be granted; ... or seeks monetary relief against a defendant who is immune from such relief." See 28 U.S.C. § 1915(e)(2). "Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). "In determining whether a dismissal is proper, we must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff." Kay v. Bemis, 500 F.3d at 1217. The Court looks to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief, i.e. the factual allegations must be enough to raise a right to relief above the speculative level. See id. at 1218 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Dismissal of an in forma pauperis complaint as frivolous is not an abuse of discretion based on a determination that the pro se litigant did not state a viable legal claim and that the complaint consisted of little more than unintelligible ramblings. Triplett v. Triplett, 166 Fed.Appx. 338, 339-340 (10th Cir. 2006). However, "pro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings." Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).
Plaintiff filed her Complaint using a form Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 and alleges that she has "been discriminated by HSD of Santa Fe discriminated by way of my age, disabilities, gender and medical conditions." Complaint at 3. Plaintiff alleges that one of Defendant's workers "became irate and harassed me over the phone" and "ignored [me in person] when I stated I need my meds to live." Another worker allegedly "laugh[ed] at me [and] was very sarcastic and rude." Complaint at 3.
The Court will dismiss the Complaint for failure to state a claim for the following reasons. The Court will dismiss the claims against the Human Services Department of Santa Fe because it is not a separate suable entity. "Generally, governmental sub-units are not separate suable entities that may be sued under § 1983." Hinton v. Dennis, 362 Fed.Appx. 904, 907 (10th Cir. 2010) (citing Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985) (holding that City and County of Denver would remain as a defendant and dismissing complaint as to the City of Denver Police Department because it is not a separate suable entity). The Complaint fails to state a claim under 42 U.S.C. § 1983 against the City of Santa Fe because it does not allege that a municipal policy or custom was the moving force behind the alleged discrimination. See McLain v. Sheriff of Mayes County, 595 Fed.Appx. 748, 753-753 (10th Cir. 2014) ("To hold a local government liable under § 1983, a plaintiff must prove: "(1) a municipal employee committed a constitutional violation, and (2) a municipal policy or custom was the moving force behind the constitutional deprivation.") (citing Myers v. Okla. Cnty. Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1318 (10th Cir.1998) and Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)).
Because it is dismissing all of Plaintiff's claims for failure to state a claim, the Court will dismiss Plaintiff's Complaint without prejudice. Plaintiff may file an amended complaint within 21 days of entry of this Order. Failure to timely file an amended complaint may result in dismissal of this case without prejudice.
Service on Defendants
Section 1915 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). Rule 4 provides that:
At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants at this time. The Court will order service if Plaintiff timely files an amended complaint which states a claim and includes the addresses of every defendant named in the amended complaint.
IT IS ORDERED that Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed April 29, 2016, is GRANTED.
IT IS ALSO ORDERED that Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed April 29, 2016, is DISMISSED without prejudice. Plaintiff may file an amended complaint within 21 days of entry of this Order.
/s/ _________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE