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Denham v. Carver

United States District Court, W.D. Washington, Tacoma

May 5, 2014

LYNELL DENHAM, Plaintiff,
v.
LEONARD CARVER III, et al, Defendant.

ORDER DENYING IFP APPLICATION [DKT. #1]

RONALD B. LEIGHTON, District Judge.

Before the Court is Plaintiff Lynell Denham's application to proceed in forma pauperis. [Dkt #1] For the reasons set forth below, the Court denies the application and the motion.

A district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The court has broad discretion in resolving the application, but "the privilege of proceeding in forma pauperis in civil actions for damages should be sparingly granted." Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should "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." Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis complaint is frivolous if "it ha[s] no arguable substance in law or fact." Id. (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

The Court will not grant in forma pauperis when it is concerned that a lawsuit is frivolous. Denham alleges a conspiracy between members of the FBI, Pierce and King County Sherriff's Offices, Pierce County Prosecutor's Office, United States Attorney's Office, and Tacoma, Lacey, and Bellevue Police Departments to arrest him for a series of bank robberies. Denham brings abuse of process, false imprisonment, false arrest, malicious prosecution, misrepresentation, judicial deception, outrage, slander, and libel claims. He alleges that the Defendants unlawfully arrested him and conspired with each other to misrepresent to the court that their suspect matched Denham. He seeks 385 million dollars in damages. The Court is concerned Denham's Complaint is frivolous.

First, Denham's request for 385 million dollars in damages is absurd and cannot be grounded in fact.

Second, Denham's Complaint lacks authority for suit against the multiple County and City employees. Denham brings suit under the Federal Tort Claims Act which allows certain federal investigative or law enforcement officers to be sued for specific intentional torts, but does not cover the county and city actors. Denham must assert a basis for his claims against the multiple county and city Defendants.

Third, many of Denham's claims are barred at the outset because Denham's conviction has not been overturned. Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir.2000) (where an alleged civil rights violation is based on a Fourth Amendment violation and calls into question the validity of the conviction, the claim cannot stand until the conviction is overturned); see also Heck v. Humphrey, 512 U.S. 477 (1994) (in a malicious prosecution claim the prior criminal proceeding must be was terminated in the Plaintiff's favor); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir.1998) ( false arrest and false imprisonment claims are barred until the conviction is invalidated); Whitaker v. Garcetti, 486 F.3d 572, 583 (9th Cir. 2007) ( judicial deception claims are barred until the conviction is invalidated).

These claims are not plausible and are frivolous. If Denham wishes to proceed he must amend his Complaint, addressing and correcting the facial deficiencies within 15 days. If he does not, his case will be dismissed without further notice.

For the reasons stated above, Plaintiff Denham's application to proceed in forma pauperis is DENIED. [Dkt. #1].

IT IS SO ORDERED.


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