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Okpor v. Kennedy Health System

September 2, 2010

MICHAEL OKPOR, PLAINTIFF,
v.
KENNEDY HEALTH SYSTEM, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez, United States District Judge

OPINION

Presently before the Court is Plaintiff, Michael Okpor's ("Okpor" or "Plaintiff") application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Okpor has instituted this pro se civil rights action against defendants Kennedy Health System, Beth Lovell and Donna Simmerson, alleging violations of his civil rights under 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1988 and breach of contract. The Court has reviewed Plaintiff's application and finds that he financially qualifies for in forma pauperis status. In addition, the Court has reviewed Plaintiff's complaint and finds that a portion of the Complaint will be dismissed for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). For the reasons set forth below, Plaintiff's claims under § 1981 and breach of contract may proceed. The Court will strike the remainder of Plaintiff's claims under §§ 1982, 1983, 1985 and 1988 for failure to state a claim and directs the Clerk of the Court to file the complaint without prepayment of the filing fees consistent with this Opinion. 28 U.S.C. § 1915(a).

I. Background*fn1

On or about October 28, 2006, Okpor, a resident of New Jersey, visited the emergency room at Kennedy Hospital, located in Stratford, New Jersey, complaining of pain and a headache. (Count I, ¶¶ 1 & 3)*fn2 After meeting with the triage nurse, Okpor was sent to meet Dr. Lovell, an emergency room physician. (Id. at ¶ 4) Dr. Lovell invited another female physician to address Okpor's health condition, which Okpor believes was Dr. Simmerson. (Id. at ¶ 4; Count III, ¶ 4).

Subsequently, Okpor was told publicly, in front of his wife and members of the public in the waiting room (Count II, ¶ 2), that the hospital did not treat black men from Africa with AIDS. (Count I, ¶ 6) As a result, Okpor was denied treatment, and suffered embarrassment, humiliation, emotional distress and pain and suffering. (Count I, ¶ 9).

Although Okpor is unsure whether Dr. Lovell or Dr. Simmerson made the comment, he believes that the comment was made by Dr. Simmerson; an identification he made by observing her lab coat. (Count III, ¶ 4) Okpor also alleges that Kennedy Hospital is vicariously liable for the conduct and tortuous acts of its employees and agents. (Count V, ¶ 3) Drs. Lovell and Simmerson are employees of Kennedy, and were acting within the scope of their authority. (Count V, ¶ 2) Okpor further alleges that Kennedy, as a place of public accommodation has a duty to ensure that it does not discriminate against anyone seeking medical care. See N.J.S.A. 10:5-5(l)(listing a hospital as a place of public accommodation).

As a place of public accommodation, N.J.S.A. 10:5-12(f)(1) provides in relevant part:

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination, "[f]or any... place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof... on account of race, creed, color, national origin..."

Plaintiff requests to proceed in forma pauperis.

II. Standard of Review

Leave to proceed in forma pauperis first requires a showing of indigence pursuant to 28 U.S.C. § 1915(a)(1).*fn3 That statute provides:

Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such costs or give security therefor.

28 U.S.C. § 1915(a)(1) (emphasis added).

To determine indigence, the Court reviews the litigant's financial statement, and, if convinced that he or she is unable to pay the court costs and filing fee, will grant leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915. The Court has reviewed the financial statement of the Plaintiff and finds that he is indigent and qualifies for in forma pauperis status.

Next, the Court will "screen" the complaint, and may sua sponte dismiss any claims that "(1) [are] frivolous or malicious; (2) fail to state a claim upon which relief may be granted; or (3) seek monetary relief from a defendant immune from such relief."

28 U.S.C. § 1915(e)(2)(B). In so doing, the Court must accept the plaintiff's allegations as true and examine its contents in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Pro se complaints are afforded even ...


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