United States District Court, D. Idaho
RAUL MENDEZ, Plaintiff.
STATE OF IDAHO, Defendant.
MEMORANDUM DECISION AND ORDER
C. Nye Judge
February 8, 2018, Raul Mendez hand delivered a document
entitled “Notice of Removal to 9th Circuit” (Dkt.
2) to the clerk's office for the United States District
Court for the District of Idaho in Boise, Idaho. Mendez
explained that he was “removing” a criminal
matter that is currently pending before the Idaho Supreme
consulting with court personnel, the clerk filed the action
as a civil case involving a violation of civil rights. Mendez
indicated that he did not have funds to pay the filling fee
and so the clerk instructed Mendez to fill out an application
to proceed in forma pauperis, which he did. Dkt. 1.
The Clerk of the Court then conditionally filed Mendez's
materials. Dkt. 3.
to 28 U.S.C. § 1915, this Court must now review
Mendez's in forma pauperis complaint to
determine whether it may proceed. Upon review, it appears
that Mendez's filing is a quasi-removal and quasi appeal
request. As explained below, neither is an appropriate avenue
to address Mendez's grievances. Even construed liberally,
Mendez's request is procedurally, factually, and
Mendez meets the criteria to proceed in forma
pauperis the Court will GRANT the same. However, because
the relief Mendez's seeks is not available in this forum,
the Court will REMAND this case to the Idaho Supreme Court.
Also pending is Mendez's Motion for Pro Bono
representation (Dkt. 5), which the Court DISMISSES as moot.
In Forma Pauperis Request
to federal statute, “any court of the United States may
authorize the commencement, prosecution or defense of any
suit, action or proceeding, civil or criminal, . . . without
prepayment of fees or security therefor.” 28 U.S.C.
order to qualify for in forma pauperis
(“IFP”) status, a plaintiff must submit an
affidavit that includes a statement of all assets he
possesses and that states he is unable to pay the fee
affidavit is sufficient if it states that the plaintiff,
because of poverty, cannot “pay or give security for
the costs” and still be able to provide for himself and
dependents the “necessities of life.” Adkins
v. E.I. DuPont de Numours & Co., 335 U.S. 331, 339
(1948). The affidavit must “state the facts as to
affiant's poverty with some particularity, definiteness
and certainty.” United States v. McQuade, 647
F.2d 938, 940 (9th Cir. 1981) (internal quotation marks
has stated under penalty of perjury that he “cannot
prepay the filing fee in [his] case” as required by 28
U.S.C. § 1915(a)(1). See Dkt. 1, at 5.
Mendez's application indicates that his has no monthly
income, receives $192 in food stamps each month, and has $10
in ongoing expenses for utilities each month. It is unclear
to the Court how this is possible, i.e. how Mendez does not
have any other expenses. However, as Mendez has stated this
under penalty of perjury, the Court does not question the
calculation, but simply determines that Mendez does in fact
qualify for IFP status and may file his case without
prepayment of the requisite fees.
Review of Complaint