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.

Poulson v. Norco Medical Supply

United States District Court, D. Montana, Missoula Division

January 31, 2017

KERMIT TY POULSON, Plaintiff,
v.
NORCO MEDICAL SUPPLY, and HARRINGTON MEDICAL SUPPLY, Defendants.

          ORDER, AND FINDINGS AND RECOMMENDATION

          Jeremiah C. Lynch, United States Magistrate Judge

         I. Introduction and In Forma Pauperis Application

         Plaintiff Kermit Poulson filed a pleading in this matter, together with his motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1).

         A court may grant a litigant leave to proceed in forma pauperis if the applicant's affidavit sufficiently indicates that the applicant cannot pay court costs and still provide the necessities of life for himself and his family. Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). It is well established that the district court has discretion in determining whether a litigant is entitled to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963).

         The Court finds Poulson's motion is incomplete. In paragraph 6 of Plaintiff's motion Poulson stated he receives disability or workers compensation benefits. But he failed to specifically describe each source of that income, the amount he receives, the frequency with which he receives the income, and whether he expects to continue to receive it. (Doc. 1 at 2.) Therefore, Poulson has failed to provide the Court sufficient information to enable it to properly rule upon his motion.

         Nonetheless, “[a] district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9thCir. 1998) (quoting Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9thCir. 1987)). Therefore, the Court will first consider whether Poulson's pleading has merit, or whether it is frivolous and subject to dismissal.

         II. Plaintiff's Allegations

         Poulson alleges Defendants refused to fill a medical prescription he presented to them. He states Defendants “fired” him as a customer because he is bi-polar, they cannot bill medicaid for his prescription, and they felt Poulson was threatening them. But Poulson asserts he was merely standing up for his “ADA, title II Anti-Discr. Rights[.]” (Doc. 2 at 6.) He alleges Defendants are liable for violating “Title II, 42 U.S.C. 1997(d)(e) [sic][, ] 14th Amendment, Discrimination, Libel, Slander, [and] Defamation.” (Id.)

         On January 25, 2017, Poulson filed an amended complaint. In it he adds that Defendants violated Mont. Code Ann. § 30-14-101 and “state business contracts.” (Doc. 5.)

         III. Discussion

         Because Poulson is proceeding pro se the Court must construe his pleading liberally, and the pleading is held “to less stringent standards than formal pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). In view of the required liberal construction,

a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.

Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (emphasis added) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

         In considering Poulson's in forma pauperis request, the Court has authority to deny the request if the plaintiff's proposed complaint is frivolous or without merit. Minetti, 152 F.3d at 1115. The court retains discretion in determining whether a complaint ...


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.