United States District Court, D. New Mexico
SHANNON J. HAKEEM, Plaintiff,
NICOLE A. HERTZLER, AMBER MACIAS-MAYO, and SYLVIA LAMAR, Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK SENIOR U.S. DISTRICT JUDGE
MATTER comes before the Court on Plaintiff's
Application to Proceed in District Court Without Prepaying
Fees or Costs filed January 8, 2019. (Doc. 2.)
to Proceed in forma pauperis
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 .
. . .”
states that (i) his and his spouse's combined monthly
income amount next month is $1, 760.00; (ii) his and his
spouse's combined monthly expenses next month exceed
their monthly income; (iii) he and his spouse have $40.00 in
cash and $36.15 in bank accounts; and (iv) Plaintiff's
two sons and his ex-wife rely on him for support. The Court
grants Plaintiff's Application to Proceed in District
Court Without Prepaying Fees or Costs because Plaintiff
signed an affidavit declaring that he is unable to pay the
costs of these proceedings. See Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 339 (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”).
of the Case
Plaintiff filed his Complaint using the form “Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983.”
Plaintiff asserts claims of “Willful Misconduct,
” “Child Neglect, ” and “Intentional
Infliction of Emotional Distress.” (Doc. 1 (Compl.) at
3-4.) The Complaint alleges that: (i) Defendant Hertzler, the
mother of Plaintiff's children, abused and neglected the
children; (ii) that Plaintiff was wrongfully accused and
convicted of domestic violence with Defendant Lamar, a state
district court judge, being biased; (iii) Defendant
Hertzler's attorney “called [Plaintiff] an abuser,
accused him of being the reason of [Defendant Hertzler]
losing her employment at OCD, and more;” and (iv) CYFD
workers violated HIPAA. (See id.) The Complaint does
not name CYFD or its employees as defendants, does not
expressly assert any civil rights claims pursuant to 42
U.S.C. § 1983, and does not seek injunctive relief.
extent the Complaint is asserting civil rights claims
pursuant to 42 U.S.C. § 1983, the Court dismisses those
claims for the following reasons. Section 1983 only
authorizes suits against persons acting under color of state
law and Plaintiff has indicated that Defendants Hertzler and
Macias-Mayo were not “acting under color of state
law.” (Compl. at 1-2.) See also McCarty v.
Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011)
(“Section 1983 provides a federal civil remedy for the
deprivation of any rights, privileges, or immunities secured
by the Constitution by any person acting under color of state
law”). Defendant Lamar, a state court judge, is immune
from monetary damages claims. See Sawyer v. Gorman,
317 Fed.Appx. 725, 727 (10th Cir. 2008) (quoting
Mireles v. Waco, 502 U.S. 9, 11-12 (1991))
(“[S]tate court judges are absolutely immune from
monetary damages claims for actions taken in their judicial
capacity, unless the actions are taken in the complete
absence of all jurisdiction”). CYFD and its employees,
as an arm of the state are also immune. See Hull v. N.M.
Taxation & Revenue Dep'ts Motor Vehicle Div.,
179 Fed.Appx. 445, 446 (10th Cir. 2006) (“It is well
established that arms of the state, or state officials acting
in their official capacities, are not ‘persons'
within the meaning of § 1983 and therefore are immune
from § 1983 damages suits”).
alleges that CYFD “workers required [Plaintiff] to meet
them in public places, this is a HIPPA violation.”
(Compl. at 16.) Plaintiff appears to be referring to the
Health Insurance Portability and Accountability Act
(“HIPAA”). The Court dismisses the HIPAA claim
because there is no private cause of action under HIPAA.
See Wilkerson v. Shinseki, 606 F.3d 1256, 1257 n.4
(10th Cir. 2010) (“Any HIPAA claim fails as HIPAA does
not create a private right of action for alleged disclosures
of confidential medical information”); 28 U.S.C. §
1915 (e)(2) (“the court shall dismiss the case at any
time if the court determines that . . . the action . . .
fails to state a claim on which relief may be
Court, having dismissed all the federal law claims, declines
to exercise supplemental jurisdiction over the state law
claims. See 28 U.S.C. § 1367(c)(3)
(“The district court may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has
IS ORDERED that:
Plaintiffs Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, ...