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Hawthorne v. Tulane University Hospital and Clinic

United States District Court, E.D. Louisiana

June 27, 2018

GENEVA HAWTHORNE
v.
TULANE HOSPITAL AND CLINIC, ET AL.

         SECTION: I (1)

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.

         Pro se plaintiff Geneva Hawthorne filed the above-captioned matter in this Court in which she asserts a claim for medical malpractice resulting in the death of her son against Tulane Hospital and Clinic, Dr. Jessica Debord, Dr. Anish J. Patel, Dr. Eric Simon, Dr. Sidney Longwell, Dr. Gabriel Fette, Dr. Brenda Lee, Dr. Kristeen Batmen, Dr. Muhammed Ahg, and Dr. Carol Bitar. She alleges that the defendants failed to initiate machine dialysis based on a nephrology consultation from a prior hospitalization and discharged the patient without verifying the effectiveness of diuretics.

         For the following reasons, it is RECOMMENDED that this lawsuit be DISMISSED for lack of subject-matter jurisdiction and without prejudice to any right the plaintiff may have to file her complaint in state court.

         Procedural Background

         On May 9, 2018, this Court granted plaintiff's motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). The Court further ordered the Clerk of Court to withhold summons in order to allow the Court to review plaintiff's complaint to determine whether it satisfies the requirements of the federal in forma pauperis statute. The Court ordered plaintiff to file a written statement of her position regarding this Court's subject-matter jurisdiction by June 13, 2018, and warned that her failure to respond would result in dismissal of her complaint for lack of subject-matter jurisdiction. Plaintiff has not filed a written statement in response to this Court's order.

         Law and Analysis

         There exists no absolute right to proceed in forma pauperis in federal civil matters under §1915; instead, it is a privilege extended to those unable to pay filing fees when it is apparent that the claims do not lack merit on their face. See Startii v. United States, 415 F.2d 1115, 1116 (5th Cir.1969); see also Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (noting that the revocation of the privilege of proceeding in forma pauperis is not new).

         28 U.S.C. § 1915(e)(2)(B) provides for summary dismissal sua sponte, should the Court determine that a case is frivolous. Section 1915(e)(2)(B) provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that - * * *
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune ...

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