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Page v. University of New Mexico

United States District Court, D. New Mexico

October 10, 2019

WILFRED ALEXANDER PAGE, et al., Plaintiffs,
v.
UNIVERSITY OF NEW MEXICO, et al., Defendants.

          ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND GRANTING LEAVE TO FILE AN AMENDED COMPLAINT

         THIS MATTER comes before the Court on Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 4, filed October 9, 2019.

         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 grants Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit stating he is unable to pay the costs of these proceedings and provided the following information: (i) Plaintiff is unemployed; (ii) Plaintiff's spouse's monthly income is $3, 000.00; (iii) Plaintiff's spouse's monthly expenses total $3, 666.67; and (iv) Plaintiff has no cash and no money in bank accounts; his spouse has $1, 000.00 in a bank account. The Court finds that Plaintiff is unable to pay the costs of this proceeding because his and his spouse's monthly expenses exceed their monthly income.

         The Complaint

         Plaintiff filed his Complaint on behalf of himself and "MDC Medical Patients & PSU Patients." Doc. 1 at 1, filed October 1, 2019. The Court notifies Plaintiff that a "litigant may bring his own claims to federal court without counsel, but not the claims of others." Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000).

         Plaintiff alleges that:

On (date) 2017-Current, at (place) Albuquerque Metro Detention Center . . . While in custody and Under a Clinical Supervision Hold in PAC 2 I was forced to take Seroquel in which I informed the Doctors I was allergic to, stating that I was then and still on Bupropion in which they said they did not have and the Dr then Stated that "I will take the Seroquel and I will like it" when I refused she put me on suicide watch for being suicidal because I did not follow her orders. After giving In and following her orders and taking several large doses of Seroquel while in Jail on more then on occasion in which every single time I did inform every single medical and PSU Staff Member that I am allergic to Seroquel they forced me to take it

Complaint at 4.

         Proceeding in forma pauperis

         Plaintiff 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. § 1915(e)(2); see also Webb v. Caldwell, 640 Fed.Appx. 800, 802 (10th Cir. 2016) ("We have held that a pro se complaint filed under a grant of ifp can be dismissed under § 1915(e)(2)(B)(ii) for failure to state a claim . . . only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend").

         The Complaint fails to state a claim against Defendant Metro Detention Center because it is not a separate suable entity. “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 ...


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