United States District Court, W.D. Washington, Tacoma
B. Leighton United States District Judge.
MATTER is before the Court on Plaintiff Wysinger's Motion
for Leave to proceed in forma pauperis, supported by
his proposed complaint. [Dkt. # 1]. Wysinger is apparently a
veteran, and he claims that the VA “took away” a
portion of his pension 27 years ago, possibly because of the
fact he was also receiving social security payments. He seeks
monthly payments of $669 for 27 years, or $ 216, 756, plus a
small amount for pain and suffering. Wysinger also submits
evidence that he already sued on this claim (at least once)
in Louisiana (Cause No. 18-cv-00568-TAD) and that that case
was dismissed without prejudice for lack of subject
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.
person is eligible to proceed in forma pauperis if
they are unable to pay the costs of filing and still provide
the necessities of life. See Rowland v. Cal. Men's
Colony, Unit II Men's Advisory Council, 506 U.S.
194, 203 (1993) (internal quotations omitted). This generally
includes incarcerated individuals with no assets and persons
who are unemployed and dependent on government assistance.
See, e.g., Ilagan v. McDonald, 2016 U.S. Dist. LEXIS
79889, at *2 (D. Nev. June 16, 2016) (granting petition based
on unemployment and zero income); Reed v. Martinez,
2015 U.S. Dist. LEXIS 80629, at *1, 2015 WL 3821514 (D. Nev.
June 19, 2015) (granting petition for incarcerated individual
on condition that applicant provides monthly payments towards
filing fee). It does not include those whose access to the
court system is not blocked by their financial constraints,
but rather are in a position of having to weigh the financial
constraints pursuing a case imposes. See Sears, Roebuck
& Co. v. Charles W. Sears Real Estate, Inc., 686
F.Supp. 385, 388 (N.D. N.Y.), aff'd, 865 F.2d 22 (2d Cir.
1988) (denying petition to proceed IFP because petitioner and
his wife had a combined annual income of between $34, 000 and
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); see also Franklin v.
Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
pro se Plaintiff's complaint is to be construed
liberally, but like any other complaint it must nevertheless
contain factual assertions sufficient to support a facially
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim for relief
is facially plausible when “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
the Court will permit pro se litigants an opportunity to
amend their complaint in order to state a plausible claim.
See United States v. Corinthian Colleges, 655 F.3d
984, 995 (9th Cir. 2011) (“Dismissal without leave to
amend is improper unless it is clear, upon de novo review,
that the complaint could not be saved by any
proposed complaint does not meet this standard. First, there
is no indication that this Court has jurisdiction over the
case, or that venue is proper here. Wysinger and the VA
office he is attempting to sue are both located in Louisiana,
and all the correspondence attached to the complaint, and all
the events described, occurred in Louisiana. Second, it
appears that most of the claims are time-barred (Wysinger is
suing over a decision made almost three decades ago). The
basis for his claim that he is entitled to a pension at all
is unclear, and it appears that he may have already sued an
lost on the claims he seeks to re-assert here.
Motion for Leave to Proceed in forma pauperis is therefore
DENIED. Wysinger shall pay the filing fee or file a proposed
amended complaint within 21 days of this order, or the case
will be dismissed. Any such amended complaint should address
the legal basis for his claim, the timeliness of his claim,
the basis for this Court's jurisdiction over his claim,
why this is the correct location for his claim, ...