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Emrit v. National Institutes of Health

United States District Court, D. Nevada

January 28, 2015

RONALD SATISH EMRIT, Plaintiff(s),
v.
NATIONAL INSTITUTES OF HEALTH, et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court are seven motions filed by pro se plaintiff Ronald Satish Emrit. Plaintiff filed motions to proceed in forma pauperis (doc. # 2), for preliminary injunction (doc. #3), for declaratory judgment (doc. # 6), for summary judgment (doc. # 7), for default judgment (doc. # 8), and in limine (doc. # 11). Defendants National Institutes of Health ("NIH"), Center for Disease Control ("CDC"), Food and Drug Administration ("FDA"), and U.S. Department of Health and Human Services ("DHHS") have not filed responses to any of plaintiff's motions.

Also before the court are Magistrate Judge Ferenbach's report and recommendation regarding plaintiff's motion to proceed in forma pauperis. (Doc. # 3). The magistrate judge recommends that plaintiff's application to proceed in forma pauperis be denied. (Doc. # 3). Plaintiff filed an objection. (Doc. # 4). Defendants did not file any objections or responses and the deadline to do so has passed.

I. Background

Plaintiff, a graduate of St. Thomas University School of Law, was diagnosed with hepatitis C in 2004. (Doc. # 1). The diagnosing doctor informed plaintiff that his hepatitis C could be cured with a six-month treatment of interferon and ribavirin. (Doc. # 1). From 2004 through present day, plaintiff has "consistently asked [defendants] to help him with regards to getting this six-month treatment." (Doc. # 1). Defendants did not. ( Id. ). On September 15, 2014, plaintiff initiated the instant action seeking $40, 000, 000. ( Id. ).

Plaintiff's complaint repeats essentially verbatim the same one paragraph. (Doc. # 1). Plaintiff states essentially that, because defendants failed to refer him to a gastroenterologist, hepatologist, and/or health management organization, the defendants have placed the plaintiff at a "higher risk of dying young from Hepatitis C, cirrhosis, liver cancer, and/or liver failure." (Doc. # 1).

Because defendants failed to assist plaintiff with getting treatment for his hepatitis C, plaintiff asserts defendants violated the Americans with Disabilities Act of 1990 ("ADA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, the Affordable Care Act ("ACA"), and the Health Insurance Portability and Accountability Act ("HIPAA"). (Doc. # 1). Plaintiff further asserts that defendants have violated state causes of action of negligence, material breach of contract, and intentional infliction of emotional distress. (Doc. # 1).

II. Discussion

As an initial matter, the court recognizes that the plaintiff is appearing pro se and must therefore be held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotations and citations omitted). However, " pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir.1986).

The court notes that plaintiff alleges to be a graduate of St. Thomas University School of Law. Plaintiff does not, however, allege to be admitted to practice in any state.

A. Plaintiff's motion to proceed in forma pauperis (doc. # 2) and Magistrate Judge Ferenbach's report and recommendation (doc. # 3)

On October 1, 2014, plaintiff filed a motion to proceed in forma pauperis. (Doc. # 2). Magistrate Judge Ferenbach filed a report and recommendation that plaintiff's application to proceed in forma pauperis be denied. (Doc. # 3). The court considers whether plaintiff's motion to proceed in forma pauperis should be granted.

This court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1).

Under 28 U.S.C. § 1914(a), a $400.00 filing fee is required to commence a civil action in federal court. The court may authorize an action to begin without prepayment of fees and costs by a person who submits an affidavit that includes a statement showing the person is unable to pay such costs. See 28 U.S.C. § 1915(a)(1). The standard governing in forma pauperis eligibility under 28 U.S.C. § 1915(a)(1) is "unable to pay such fees or give security therefore." Determining whether a plaintiff is unable to pay, and therefore permitted to proceed in forma pauperis, is within the discretion of the presiding judge, based on the ...


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