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Towner v. Doe

February 5, 2008

JAMES WILLIAM TOWNER, PLAINTIFF,
v.
JOHN DOE, MEDICAL DOCTOR, ATTICA CORRECTIONAL FACILITY; JOHN DOE, ALBANY - APS; JON MILLER, MEDICAL DOCTOR, COXSACKIE CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior Judge

DECISION and ORDER

I. Introduction

The Clerk has sent to the Court for review a complaint filed by James William Towner, together with an application to proceed in forma pauperis and inmate authorization form.*fn1 Plaintiff, who has not paid the filing fee for this action, is confined at Upstate Correctional Facility.*fn2 Plaintiff has also filed motions seeking the appointment of counsel, preliminary injunctive relief and a speedy trial. Dkt. Nos. 4, 5, 10.

By his complaint, plaintiff states that in 2004/2005, while confined at Attica, he became ill with fever, headaches, and stomach cramps. Plaintiff further states that he was diagnosed with H. pylori and treated with antibiotics. Plaintiff claims that the treatment was not successful and that upon his transfer to Coxsackie Correctional Facility in March, 2006, he was still symptomatic. According to the complaint, numerous tests were conducted in a further effort to diagnose the cause of plaintiff's illness. Id. at 2. Plaintiff was again diagnosed with H. pylori and treated with antibiotics. Id. at 5. Plaintiff alleges that he was misdiagnosed on both occasions and claims that he was suffering from salmonella poisoning which he contracted from contaminated peanut butter products.*fn3

In August, 2006, plaintiff underwent a contrast dye CT/MRI examination at Albany Medical Hospital. Plaintiff claims that he developed serious complications from the dye used in that procedure and now suffers from nephrogenic systemic fibrosis.*fn4

Plaintiff, who is now confined at Upstate Correctional Facility, claims that abdominal surgery is now being improperly withheld by prison officials.

The complaint names as defendants an unidentified physician at Attica Correctional Facility, Dr. Jon Miller, a physician at Coxsackie Correctional Facility, and "John Doe Albany-APS."*fn5 For a complete statement of plaintiff's claims, reference is made to the complaint.*fn6

II. Discussion

Where a plaintiff seeks leave to proceed in forma pauperis, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the $350.00 filing fee. The Court must also consider whether the causes of action stated in the complaint are, inter alia, frivolous or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b)(1).

A. Economic Need

In this case, plaintiff has demonstrated economic need and has filed the inmate authorization form required in this District. Accordingly, plaintiff properly commenced this action without prepayment of the filing fee.

B. Sufficiency of the Complaint

Turning to the second inquiry, 28 U.S.C. ยง 1915(e), as amended, ...


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