United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION TO PROCEED IN FORMA
B. Leighton, United States District Judge.
MATTER is before the Court on Plaintiff Judd's Motion for
leave to proceed in forma pauperis, supported by his proposed
complaint. [Dkt. # 1-1]. Judd seeks to sue a series of
judges, lawyers and others who were apparently involved in
his state court dissolution proceeding, for violating his
constitutional rights in that proceeding. He raises a wide
variety of claims including failure to accommodate his
disability and assignment of his disability payments to his
now ex-wife. He claims they lied and conspired to violate his
rights. He seems to suggest that he “pled the
fifth” and that one or more of the judges held that
fact against him, in a civil proceeding.
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
$37, 000). Judd appears to have met the indigency component
of the in forma pauperis standard.
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 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 amendment.”)
proposed claims against the defendants he has named do not
meet this standard. First, all of his §1983 claims
against the judges and the court personnel are barred as a
matter of law. Any judicial act a judge carries out entitles
the judge to absolute immunity. See Stump v.
Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331
(1978). A judge is entitled to immunity even if the action he
took was in error, was malicious, or was in excess of his
authority. Id. at 1101. This immunity extends to
Judd asks this court to correct or reverse decisions made in
state court, but it cannot and will not do so. The
Rooker-Feldman doctrine precludes “cases
brought by state-court losers complaining of injuries caused
by state-court judgments . . . and inviting district court
review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284, 125 S.Ct. 1517, 1521, 161 L.Ed.2d 454 (2005). [W]hen a
losing plaintiff in state court brings a suit in federal
district court asserting as legal wrongs the allegedly
erroneous legal rulings of the state court and seeks to
vacate or set aside the judgment of that court, the federal
suit is a forbidden de facto appeal. Noel v.
Hall, 341 F.3d 1148, 1156 (9th Cir. 2003); Carmona
v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2008). The
corrective for any claimed errors in the state court case(s)
was an appeal of the results in those cases, not a new
litigation against the participants.
if and to the extent Judd asserts § 1983 claims against
the private attorneys representing his ex-wife, those claims
fail as a matter of law. A plaintiff cannot assert a 42
U.S.C. § 1983 claim for violation of constitutional
rights against a defendant who is not a state actor. See
West v. Atkins, 487 U.S. 42, 48 (1988). This
determination is made using a two-part test: (1) “the
deprivation must . . . be caused by the exercise of some
right or a privilege created by the government or a rule of
conduct imposed by the government;” and (2) “the
party charged with the deprivation must be a person who may
fairly be said to be a governmental actor.”
Sutton v. Providence St. Joseph Medical Center, 192
F.3d 826, 835 (9th Cir. 1999) (emphasis added).
§1983 claims are fatally flawed. His Motion for Leave to
proceed in forma pauperis is therefore DENIED, and he shall
pay the filing fee or file a proposed amended complaint
within 21 days. Any proposed amended complaint should address
and resolve the flaws described above. He must set forth the
“who what when where and why” of a plausible,
viable claim against a ...