United States District Court, D. Maine
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND
RECOMMENDED TRANSFER OF THE CASE
H. Rich III, United States Magistrate Judge
plaintiff has filed suit against Stuart Chase, the former
police chief of the Town of Wolfeboro, New Hampshire, Rob
Houseman, the former town planner/acting town manager of
Wolfeboro, two other town employees, and the Town of
Wolfeboro itself for federal constitutional rights violations
pursuant to 42 U.S.C. § 1983 as well as under several
state common law tort theories. See [Complaint] (ECF
No. 1). I grant the plaintiff's request for leave to
proceed in forma pauperis, but because
venue does not properly lie in this District and the
plaintiff initially filed the same or similar suits in the
United States District Court for the District of New
Hampshire (“USDC/New Hampshire”), I recommend
that the court transfer this case to the USDC/New Hampshire
pursuant to 28 U.S.C. §§ 1391(b) and 1406(a).
Application To Proceed in Forma Pauperis
forma pauperis status is available under 28 U.S.C.
§ 1915(a)(1). In her application to proceed pro
se, the plaintiff lists her total monthly income as $1,
811.00, consisting of Social Security payments and $350.00
per month received from a boarder in her house. ECF No. 3
¶ 2. She lists no assets or cash in any bank account.
Id. ¶¶ 4-5. For expenses, she lists a
monthly recurring expense of $300.00 for heating fuel for her
house and has attached to her application copies of bills for
what appear to be a car loan, cable service, car insurance,
homeowners' insurance, a mortgage, health care insurance,
and a tax bill from the Town of Wolfeboro, which range in
dates across 2015 and 2016. Id. ¶ 8 &
attachments thereto. The plaintiff lists no dependents.
Id. ¶ 7. These financial circumstances entitle
her to proceed in forma pauperis and, accordingly, I
grant her petition to proceed in forma pauperis.
Section 1915(e)(2)(B) Review
Applicable Legal Standard
federal in forma pauperis statute, 28 U.S.C. §
1915, is designed to ensure meaningful access to the federal
courts for those persons unable to pay the costs of bringing
an action. When a party is proceeding in forma
pauperis, however, “the court shall dismiss the
case at any time if the court determines[, ]” inter
alia, that the action is “frivolous or
malicious” or “fails to state a claim on which
relief may be granted” or “seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B).
[under § 1915] are often made sua sponte prior
to the issuance of process, so as to spare prospective
defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S.
319, 324 (1989); see also Mallard v. United States Dist.
Court S.D. Iowa, 490 U.S. 296, 307-08 (1989)
(“Section 1915(d), for example, authorizes courts to
dismiss a ‘frivolous or malicious' action, but
there is little doubt they would have power to do so even in
the absence of this statutory
considering whether a complaint states a claim for which
relief may be granted, a court must assume the truth of all
well-plead facts and give the plaintiff the benefit of all
reasonable inferences therefrom. Ocasio-Hernández
v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.
2011). A complaint fails to state a claim upon which relief
can be granted if it does not plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
a pro se plaintiff's complaint is subject to
“less stringent standards than formal pleadings drafted
by lawyers, ” Haines v. Kerner, 404 U.S. 519,
520 (1972), this is “not to say that pro se plaintiffs
are not required to plead basic facts sufficient to state a
claim[, ]” Ferranti v. Moran, 618 F.2d 888,
890 (1st Cir. 1980). To allege a civil action in federal
court, it is not enough for a plaintiff merely to allege that
a defendant acted unlawfully; a plaintiff must affirmatively
allege facts that identify the manner in which the defendant
subjected the plaintiff to a harm for which the law affords a
remedy. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As noted, the statute that provides for waiver of the filing
fee also requires the court to determine whether the
plaintiff's case may proceed. In other words, the
plaintiff's complaint must be dismissed if the court
finds it to be frivolous or malicious, seeks monetary relief
from a defendant who is immune from such relief, or fails to
state a claim upon which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B). In this regard, a pro se
plaintiff's complaint must be read liberally. Donovan
v. Maine, 276 F.3d 87, 94 (1st Cir. 2002).
read, the plaintiff's complaint alleges a series of
events beginning on May 7, 2014, that include being assaulted
by the former chief of police of Wolfeboro, New Hampshire,
and later, by the town's former manager. Complaint
¶¶ 8, 11. The complaint also alleges that Wolfeboro
police officers conspired with the then-acting town manager
to effectuate the plaintiff's unlawful arrest and
prosecution and that the town itself defamed her by banning
her from town hall and the police station without due process
and then publicizing the costly nature of her legal pursuits
against the town in a local newspaper. Id.
issue here, however, is not whether the allegations of the
complaint state a viable claim but, rather, the fact that
they reveal no jurisdictional nexus between any party to this
suit and Maine. The plaintiff sues the Town of Wolfeboro, New
Hampshire, identifies herself and all of the individual
defendants as New Hampshire residents, and describes all of
her causes of action as arising from incidents that occurred
in that state. See generally Complaint. Pursuant to
28 U.S.C. § 1391, which “govern[s] the venue of
all civil actions brought in district courts of the United
States[, ]” 28 U.S.C. § 1391(a)(1), a civil action
may be brought in:
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which ...