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Mendez v. State

United States District Court, D. Idaho

February 21, 2018

RAUL MENDEZ, Plaintiff.
v.
STATE OF IDAHO, Defendant.

          MEMORANDUM DECISION AND ORDER

          David C. Nye Judge

         On 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 Court.

         After 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.

         Pursuant 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 statutorily improper.

         Because 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.

         I. In Forma Pauperis Request

         A. Standard

         Pursuant 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. § 1915(a)(1).

         In 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 required.

         The 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 omitted).

         B. Discussion

         Mendez 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.

         II. Review of Complaint

         A. ...


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