United States District Court, D. New Mexico
BRIAN L. PATTERSON, and PATRICIA A. PATTERSON, Plaintiffs,
SANTA FE COUNTY SHERIFF'S DEPARTMENT, EDGEWOOD POLICE DEPARTMENT, NEW MEXICO STATE GOVERNOR'S OFFICE, and NEW MEXICO STATE POLICE DEPARTMENT, Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK SENIOR U.S. DISTRICT JUDGE
MATTER comes before the Court on Plaintiffs'
Application to Proceed in District Court Without Prepaying
Fees or Costs, filed April 16, 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 . . .
.” 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 Plaintiffs' Application to proceed in
forma pauperis because Mr. Patterson signed an affidavit
declaring that he is unable to pay the costs of these
proceedings and stated: (i) he is not employed; (ii) he
receives $194.00 per month from the New Mexico Human Services
Department; and (iii) he lives with his mother who provides
financial and residential support.
of the Case
Patterson, who is proceeding pro se, filed the
Complaint on behalf of himself and his elderly mother.
Plaintiff alleges that unidentified persons have committed
and continue to commit crimes against him and his mother
using “conventional and unconventional concealed
weapons.” (Doc. 1 (Compl.) at 4.) Plaintiff alleges
that those “crimes were intelligently and elaborately
engineered to utilize weapons that are colorless and
odorless, disguised to avoid detection” and include
“subversive chemical, toxin and gas attacks and induce
simultaneous abnormal temperature extremes.”
(Id. at 3-4.) Plaintiff states he notified
Defendants “of the continual imminent threats, dangers
and or crimes targeting, occurring and posed against the
Plaintiff[']s lives, on and surrounding their private
property . . . and sought emergency assistance pertinent to
the crimes” and that Defendants failed to respond
appropriately. (Id. at 4, 10-11.) Plaintiff states
that several federal criminal statutes are at issue in this
case. (See Id. at 3, 8-9.) Plaintiff also alleges
that “it is impossible to acquire a Power of Attorney
from” his mother and requests that the Court grant
Plaintiff power of attorney for his mother. (Id. at
7.) Finally, Plaintiff seeks an “Emergency
Injunction” to “stop the criminal violence
immediately and ensure the safety of the Plaintiffs.”
(Id. at 6.)
Court dismisses all claims asserted on behalf of
Plaintiff's mother, Patricia A. Patterson, because she
did not sign the Complaint as required by Rule 11, and
because Plaintiff, who is proceeding pro se and is
not an attorney licensed to practice in this Court, may not
bring claims on behalf of his mother. See Fed. R.
Civ. P. 11(a) (“Every pleading, written motion, and
other paper must be signed . . . by a party personally if the
party is unrepresented”); Fymbo v. State Farm Fire
& Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000)
(“A litigant may bring his own claims to federal court
without counsel, but not the claims of others.”).
Court dismisses the claims against the Edgewood Police
Department and the Santa Fe County Sheriff's Department
because they are not separate suable entities.
“Generally, governmental sub-units are not separate
suable entities that may be sued under § 1983.”
Hinton v. Dennis, 362 Fed.Appx. 904, 907 (10th Cir.
2010) (citing Martinez v. Winner, 771 F.2d 424, 444
(10th Cir. 1985) (holding that City and County of Denver
would remain as a defendant and dismissing complaint as to
the City of Denver Police Department because it is not a
separate suable entity)).
extent that Plaintiff is asserting claims that Defendants
violated the federal criminal statutes “that are at
issue in this case, ” the Court dismisses those claims
because private citizens cannot compel enforcement of
criminal law. See Diamond v. Charles, 476 U.S. 54,
64 (1986) (“a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
Court dismisses the civil rights claims pursuant to 42 U.S.C.
§ 1983 against the New Mexico State Governor's
Office and the New Mexico State Police. “With certain
limited exceptions, the Eleventh Amendment prohibits a
citizen from filing suit against a state in federal
court.” Ruiz v. McDonnell, 299 F.3d 1173, 1180
(10th Cir. 2002). There are “two primary circumstances
in which a citizen may sue a state without offending Eleventh
Amendment immunity. Congress may abrogate a state's
Eleventh Amendment immunity . . . [or a] state may . . .
waive its Eleventh Amendment immunity and consent to be
sued.” Id. at 1181. Neither exception applies
in this case. “First, the United States Supreme Court
has previously held that Congress did not abrogate
states' Eleventh Amendment immunity when it enacted 42
U.S.C. § 1983.” Id. (citing
Quern v. Jordan, 440 U.S. 332, 345 (1979)). Second,
Plaintiff does not allege in his complaint that the State of
New Mexico waived its Eleventh Amendment immunity in this
case. “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.”
Hull v. N.M. Taxation & Revenue Dep't's Motor
Vehicle Div., 179 Fed.Appx. 445, 446 (10th Cir. 2006).
The Court concludes that it lacks subject matter jurisdiction
over Plaintiff's 42 U.S.C. § 1983 claims with
respect to the State of New Mexico Defendants. The Court will
also dismiss Plaintiff's claim for injunctive relief
because Plaintiff is suing divisions of the State of New
Mexico instead of state officials. See Muscogee (Creek)
Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012)
(for the Ex parte Young exception to state sovereign
immunity to apply, a plaintiff must show that he is:
“(1) suing state officials rather than the state
itself, (2) alleging an ongoing violation of federal law, and
(3) seeking prospective relief”).
is proceeding in forma pauperis. The statute
governing proceedings in forma pauperis states
“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 granted.” 28 U.S.C. §