Poulson v. Norco Medical Supply et al

Filing 13

ORDER re 9 MOTION to Appoint Counsel filed by Kermit Ty Poulson, 6 MOTION for Preliminary Injunction filed by Kermit Ty Poulson, Motions terminated: 6 MOTION for Preliminary Injunction filed by Kermit Ty Poulson, 9 MOTION to Appoin t Counsel filed by Kermit Ty Poulson., FINDINGS AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Kermit Ty Poulson, 5 Amended Complaint filed by Kermit Ty Poulson, 2 Complaint IFP/Prisoner filed by Kermit Ty Poulson. () Signed by Magistrate Judge Jeremiah C. Lynch on 1/31/2017. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
KERMIT TY POULSON,

CV 17-5-M-DLC-JCL

Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION

vs.
NORCO MEDICAL SUPPLY, and
HARRINGTON MEDICAL SUPPLY,
Defendants.

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
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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 (9th
Cir. 1998) (quoting Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th
Cir. 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.)

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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 is “frivolous.” Denton v. Hernandez, 504 U.S. 25, 33 (1992).
A complaint is frivolous if it has “no arguable basis in fact or law.”
Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). See also Neitzke v.

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Williams, 490 U.S. 319, 325 (1989).
As noted, Poulson expressly identified specific legal claims he seeks to
advance in this case. But for the reasons stated, those specific claims are not
viable in this case.
Poulson alleges Defendants violated Title II of the Americans with
Disabilities Act. But Title II prohibits a “public entity” – defined as a state or
local governmental entity – from discriminating against a qualified individual with
a disability. Cohen v. City of Culver City, 754 F.3d 690, 694 (9th Cir. 2014). 42
U.S.C. §§ 12131(1) & 12132. The Defendants in this case are not public entities
under Title II and, therefore, the claim lacks merit.
Poulson cites to “42 U.S.C. § 1997(d)(e),” but no such statute or subsection
exists. There are, however, statutory provisions at section 1997d and section
1997e.
The Court finds that 42 U.S.C. § 1997d is inapplicable to this action. It
provides as follows: “No person reporting conditions which may constitute a
violation under this subchapter shall be subjected to retaliation in any manner for
so reporting.” 42 U.S.C. §1997d. The referenced subchapter pertains only to the
treatment of individuals housed or residing in an institution as defined in 42
U.S.C. § 1997(1). In this case Poulson provided a residential address for himself,

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and he does not assert he resides in an institution.
Additionally, 42 U.S.C. § 1997e is inapplicable. Section 1997e governs
suits filed by prisoners. Poulson is not presently a prisoner, and his allegations do
not arise from circumstances while he was a prisoner.
Finally, the Fourteenth Amendment to the United States Constitution does
not provide Poulson with a claim for relief. The Amendment constrains only the
conduct of a State. Adickes v. S. H. Kress & Company, 398 U.S. 144, 169 (1970).
It does not limit or prohibit “merely private conduct.” Id. The Defendants named
by Poulson in this action are private business entities, not state entities.
Based on the foregoing, all of Poulson’s express federal claims fail for lack
of merit. The Court recommends they be dismissed.
The balance of Poulson’s claims are advanced under Montana law over
which the Court would have supplemental jurisdiction provided by 28 U.S.C. §
1367(a) if Poulson’s federal claims had merit. But the Court may decline to
exercise supplemental jurisdiction for various reasons stated in the statute,
including when “the district court has dismissed all claims over which it has
original jurisdiction[.]” 28 U.S.C. § 1367(c)(3). Because the Court recommends
dismissal of Poulson’s federal claims, claims it is recommended the Court should
decline to exercise supplemental jurisdiction over Poulson’s state law claims.

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III. Conclusion
For the reasons discussed, the Court concludes Poulson’s express legal
claims asserted fail for lack of merit, are frivolous, and could not be cured by the
allegation of other facts. Therefore, IT IS HEREBY RECOMMENDED that
Poulson’s request to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) be
DENIED, and this action should be DISMISSED.
A plaintiff is not entitled to file objections to a recommendation that the
plaintiff’s application to proceed in forma pauperis be denied. Minetti v. Port of
Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998) (per curiam). Therefore, this
recommendation will be forwarded directly to the District Judge for his
consideration. No motion for reconsideration will be entertained.
On January 30, 2017, Poulson filed additional motions in this case. He filed
a one-page request for a preliminary injunction directing Defendants to provide
him with catheters, and he requested the Court appoint counsel to represent him in
this action. Because I am recommending this action be dismissed, IT IS
ORDERED the referenced motions are DENIED as moot.
DATED this 31st day of January, 2017.

Jeremiah C. Lynch
United States Magistrate Judge
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