United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK, SENIOR U.S. DISTRICT JUDGE.
MATTER comes before the Court Plaintiff's
Application to Proceed in District Court Without Prepaying
Fees or Costs, filed March 21, 2019. (Doc. 3.)
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 . . .
.” 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.
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.
of the Case
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” 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.)
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.)
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.
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 ...