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Duram v. Big Sky Family Medicine

United States District Court, D. Montana, Missoula Division

February 21, 2019

DANIEL M. DURAM, Plaintiff,
v.
BIG SKY FAMILY MEDICINE, and JONATHAN ANDERSON, M.D., Defendants.

          ORDER

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE

         I. In Forma Pauperis Application

         Plaintiff Daniel Duram, appearing pro se, filed an application requesting leave to proceed in forma pauperis. He submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute this action IT IS HEREBY ORDERED that Duram's application is GRANTED. This action may proceed without prepayment of the filing fee, and the Clerk of Court is directed to file Duram's lodged Complaint as of the filing date of his request to proceed in forma pauperis.

         The federal statute under which leave to proceed in forma pauperis is permitted - 28 U.S.C. § 1915 - also requires the Court to conduct a preliminary screening of the allegations set forth in the litigant's pleading. The applicable provisions of section 1915(e)(2) state 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-
(A) the allegation of poverty is untrue; or
(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 from such relief.

28 U.S.C. § 1915(e)(2).

         The Court will review Duram's pleading to consider whether this action can survive dismissal under the provisions of section 1915(e)(2), or any other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th Cir. 2005).

         II. Background

         On May 17, 2017, Duram sought medical care at Big Sky Family Medicine in Kalispell, Montana for what he states was a heart attack. He had to wait for an hour and a half before he saw Dr. Jonathan Anderson. He told Dr. Anderson he was experiencing severe chest pain and that he was having a heart attack. According to Duram, Dr. Anderson did not believe Duram was having a heart attack or that he was in pain, and Dr. Anderson did not conduct any medical tests on Duram. Instead, Dr. Anderson believed Duram was seeking to obtain pain medicine for unlawful purposes. After 30 minutes Duram convinced Dr. Anderson to prescribe pain medicine. But Duram alleges the delay in treatment from Dr. Anderson caused ...


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