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Marilyn Bloch v. Dr. Xanau Liu

April 21, 2011

MARILYN BLOCH, PLAINTIFF,
v.
DR. XANAU LIU, DEFENDANT.



The opinion of the court was delivered by: Chesler, District Judge

CLOSED

NOT FOR PUBLICATION

OPINION & ORDER

This matter comes before the Court on the April 11, 2011 application of pro se Plaintiff Marilyn Bloch ("Plaintiff" or "Bloch") to file a Complaint without prepayment of fees pursuant to 28 U.S.C. § 1915. The Court has reviewed Bloch's application to proceed in forma pauperis and, pursuant to 28 U.S.C. § 1915(a), grants the application. According to Bloch's sworn declaration in support of her application, she is unemployed and receives an income of only $674 a month in disability benefits. The Court is satisfied that this filing meets the indigence requirements of 15 U.S.C. § 1915(a)(1).

Proceeding in forma pauperis is governed by 28 U.S.C. § 1915. In order to prevent abusive or captious litigation, § 1915(e)(2)(B) requires that the Court dismiss a case if it determines that the action cannot or should not proceed on the merits. See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) ("[T]here is no constitutional right to the expenditure of public funds and the valuable time of the federal courts to prosecute an action which is totally without merit"). The statute provides as follows:

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 has accordingly reviewed the Complaint to determine whether dismissal on any of the enumerated grounds is warranted. For the reasons that follow, it dismisses the Complaint in its entirety pursuant to 28 U.S.C. §1915(e)(2)(B)(ii).

I. BACKGROUND

Bloch, who is a resident of Hollywood, Florida, is suing Dr. Xanau Liu, an orthopedist practicing in Edison, New Jersey, for breach of contract. Bloch alleges that she engaged the services of Dr. Liu and that he agreed to treat back and neck injuries she appears to have sustained in a slip and fall accident outside her apartment on September 30, 2010. She claims that as a result of Dr. Liu's refusal to treat her as agreed, she is in great physical pain and has also suffered emotional distress. She seeks judgment in the amount of two million ...


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