Gonzalez v. K. LNU et al, No. 2:2023cv00114 - Document 5 (D.N.M. 2023)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter GRANTING 2 Motion to Proceed under 28 U.S.C. 1915 and further ORDERING Plaintiff to file an Amended Complaint in English within 21 days of entry of this Order. (ama)
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Gonzalez v. K. LNU et al Doc. 5 Case 2:23-cv-00114-JHR Document 5 Filed 04/03/23 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ALFREDO GONZALEZ, Plaintiff, v. No. 2:23-cv-00114-JHR CHRISTINA K., et al., Defendants. MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND ORDER FOR AMENDED COMPLAINT THIS MATTER comes before the Court on pro se Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed February 7, 2023, and Plaintiff’s Application to Proceed in District court Without Prepaying Fees or Costs, Doc. 2, filed February 7, 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 Dockets.Justia.com Case 2:23-cv-00114-JHR Document 5 Filed 04/03/23 Page 2 of 3 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 $1,285.00; (ii) Plaintiff’s monthly expenses total $2,005.00; and (iii) Plaintiff has $404.00 in cash and $150.00 in a bank account. 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. The Complaint Plaintiff filed his Complaint using the form "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983.” Many of Plaintiff’s statements in the Complaint are in Spanish. Documents must be filed in English. See Guide for Pro Se Litigants at 6 (D.N.M. October 2022) (“Interpreter services needed to assist parties to civil proceedings, both in court and out of court, are the responsibility of the parties to the action.”). The Court orders Plaintiff to file an amended complaint in English. 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). The Court will not order service at this time because the Court is ordering Plaintiff to file an amended complaint. The Court will order service if: (i) Plaintiff files an amended complaint that states in English a claim 2 Case 2:23-cv-00114-JHR Document 5 Filed 04/03/23 Page 3 of 3 over which the Court has subject-matter jurisdiction; and (ii) files a motion for service which includes the address of each Defendant. 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 (November 2019). 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 February 7, 2023, is GRANTED. (ii) Plaintiff shall, within 21 days of entry of this Order, file an amended complaint. Failure to timely file an amended complaint may result in dismissal of this case. _____________________________________ UNITED STATES MAGISTRATE JUDGE 3
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