United States District Court, D. New Mexico
JANETTE M. FREEDMAN, on behalf of' T.U.J., S.J. and E.R.F, her minor children, NEIL FREEDMAN, and LINDA TABAKA, Plaintiffs,
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
C. BRACK SENIOR U.S. DISTRICT JUDGE
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
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)). “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.
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.
Brought on Behalf of Plaintiff's Children
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.”).
Against the Children, Youth and Families Department
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
(Compl. at 1-3.)
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 ...