Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Freedman v. Children Youth and Families Department

United States District Court, D. New Mexico

August 5, 2019

JANETTE M. FREEDMAN, on behalf of' T.U.J., S.J. and E.R.F, her minor children, NEIL FREEDMAN, and LINDA TABAKA, Plaintiffs,
v.
CHILDREN YOUTH AND FAMILIES DEPARTMENT, DANIEL HOWIE, WESLEY JENSEN, ALBUQUERQUE POLICE DEPARTMENT, UNIVERSITY OF NEW MEXICO HOSPITAL, LOVELACE HOSPITAL, BERNALILLO COUNTY SHERIFF'S DEPARTMENT, CITY OF ALBUQUERQUE, COUNTY OF BERNALILLO, METROPOLITAN DETENTION CENTER, FNU LNU, FNU RUSSO, and FNU SILVERSTEIN, Defendants.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         THIS MATTER comes before the Court on Plaintiffs' Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, filed March 18, 2019 (Doc. 1 (Compl.)), and on Plaintiff Janette M. Freedman's Application to Proceed in District Court Without Prepaying Fees or Costs, filed March 18, 2019 (Doc. 2). Plaintiff Janette M. Freedman is proceeding pro se.

         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)). “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 . . . .” 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 will grant Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff Janette M. Freedman (“Plaintiff”) signed an affidavit stating she is unable to pay the costs of these proceedings and declared under penalty of perjury that the following information is true: (i) her average monthly income amount during the past 12 months is $771.00; (ii) she is unemployed; (iii) her average monthly expenses total $350.00-$400.00; (iv) she has two daughters under the age of 18 who rely on her for support; and (v) she has $1.50 in cash and $1.50 in a checking account. The Court finds that Plaintiff is unable to pay the costs of this proceeding because of her low monthly income.

         Claims Brought on Behalf of Plaintiff's Children

         The Court dismisses the claims Plaintiff asserts on behalf of her children because Plaintiff is not an attorney admitted to practice in this Court. See 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.”).

         Claims Against the Children, Youth and Families Department

         Plaintiff alleges:

CYFD substantiated false sexual abuse claims against me & my family, and sent them to APD crimes against children and Det. Daniel Howie negligently investigated this crime and my children were injured due to CYFD & APD's negligence[, ] . . . and Det. Howie never investigated what was reported to CYFD from me in June 2013 because CYFD wouldn't even investigate. They stated not enough information. My children were physically, sexually & emotionally abused due to CYFD's corruption and negligence.

(Compl. at 1-3.)

         “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 her 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.