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Camacho v. Alcohol Substance Abuse Program

United States District Court, D. New Mexico

May 3, 2019

KATHRYN CAMACHO Plaintiff,
v.
ALCOHOL SUBSTANCE ABUSE PROGRAM, et al., Defendants.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

          ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE.

         THIS MATTER comes before the Court Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, filed March 21, 2019. (Doc. 3.)

         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)). “[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 . . . .” See Adkins v. E.I. DuPont de 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 forma pauperis because Plaintiff signed an affidavit declaring that she is unable to pay the costs of these proceedings and stated: (i) she is not employed; (ii) she has filed an “SSI claim;” (iii) she owes student loans; and (iv) she needs medical and dental care.

         Dismissal of the Case

         Plaintiff, who is proceeding pro se, alleges that she “was wrongfully labeled by [Defendant Alcohol Substance Abuse Program] clinic as having viral hepatitis without tests being ran[1]” and that she has been “extorted and frauded all over Albuquerque with rumors and facts that aren't the communities business." (Doc. 2 (Compl.) at 2-3, Doc. 2.) Plaintiff also alleges: "They caused me job loss, economic stress, community fraud from others, sabbatoge school, career opportunity at the ‘Source.'” (Id. at 3.) Plaintiff alleges that the wrongful label and disclosure resulted in the following “crimes:”

Extorshin, emotional distress, false tokens, false pretense, fraudulent concealment, healthcare fraud, forgery, ex post facto, scienter, plans for 1st degree murder, laughing about a serious assault from Michael Camacho, co-conspiratized with Tamera Hudson (physician) collusion and cohesion, illegal arrest and detained at Bernallio jail computer fraud and abuse, slander per se public figure slander, privacy torts, libel, threats about benefits that are government issued, threats about prescription medicines, injunction - Racketeering, financial abuse, dental loss, facial disfigurement, collusion & cohesion.

(Id. at 3-4.) Plaintiff also filed an Amendment of Complaint and a Supplement seeking to add defendants and provide additional information. (See Docs. 4; 5.)

         Liberally construing Plaintiff's Complaint, Amendment and Supplement, it appears that Plaintiff's primary complaints are: (i) “healthcare fraud” when she alleges that Defendant Alcohol Substance Abuse Program “wrongfully labeled” Plaintiff as having viral hepatitis; and (ii) a claim under the Health Insurance Portability and Accountability Act (“HIPAA”) resulting from the disclosure of the “wrongfully labeled” diagnosis of viral hepatitis. (Doc. 2 at 2-3.)

         The Court dismisses the healthcare fraud claim for failure to state a claim. While Plaintiff has alleged that certain Defendants made a misrepresentation of fact when they “wrongfully labelled” Plaintiff as having viral hepatitis, Plaintiff has not alleged that they did so with the intent to deceive and to induce Plaintiff to act upon the misrepresentation, or that Plaintiff actually and detrimentally relied on the misrepresentation. See State ex rel. Peterson v. Aramark Corr. Servs., LLC, 321 P.3d 128, 137 (N.M. Ct. App. 2014) (stating that the elements of fraud are “that the other party (1) made a misrepresentation of fact . . . (2) with the intent to deceive and to induce the injured party to act upon it, (3) and upon which the injured party actually and detrimentally relies” (internal quotation marks and citation omitted)). Plaintiff has not alleged that Defendants violated any federal healthcare law relating to fraud.

         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 ...


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