United States District Court, W.D. Washington, Tacoma
DAVID T. SUMNER, IV, Plaintiff,
UNITED STATES POSTAL SERVICE, et al., Defendant.
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITHOUT
PREJUDICE, GRANTING PLAINTIFF LEAVE TO AMEND, AND RENOTING
PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
David T. Sumner, IV, proceeding pro se, filed this
action alleging violations of his constitutional rights.
See Dkt. 1-1. The District Court has referred
Plaintiff's pending Application to Proceed In Forma
Pauperis (“IFP”) and Proposed Complaint to
United States Magistrate Judge David W. Christel pursuant to
Amended General Order 02-19.
reviewed and screened Plaintiff's Proposed Complaint
under 28 U.S.C. § 1915(e)(2), the Court finds Plaintiff
has failed to state a claim. The Court dismisses
Plaintiff's Proposed Complaint without prejudice,
re-notes the pending Application to Proceed IFP, and provides
Plaintiff leave to file an amended pleading by January 17,
2020, to cure the deficiencies identified herein.
alleges that, on October 1, 2019, when he was in the main
room of the Longview, Washington post office, Defendant Glenn
Blair, a postal employee, approached Plaintiff and asked
Plaintiff to leave the post office because he had been there
for too long. Dkt. 1-1. Plaintiff states he removed a posted
sign of the rules from the wall to read. Id.
Defendant Blair and another postal employee then called the
police stating Plaintiff had vandalized the post office by
removing the sign. Id. Plaintiff alleges that, when
two unnamed police officers arrived, they did not allow
Plaintiff to speak and falsely arrested Plaintiff on a
malicious mischief charge. Id. Plaintiff contends
Defendants violated his Fourth and Fourteenth Amendment
district court may permit indigent litigants to proceed IFP
upon completion of a proper affidavit of indigency.
See 28 U.S.C. § 1915(a). However, the
“privilege of pleading in forma pauperis . . .
in civil actions for damages should be allowed only in
exceptional circumstances.” Wilborn v.
Escalderon, 789 F.2d 1328 (9th Cir. 1986). The Court has
broad discretion in denying an application to proceed IFP.
Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963),
cert. denied 375 U.S. 845 (1963).
IFP status, the Court must subject each civil action
commenced pursuant to 28 U.S.C. § 1915(a) to mandatory
screening and order the sua sponte dismissal of any
case that is “frivolous or malicious, ”
“fails to state a claim on which relief may be granted,
” or “seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d
845, 845 (9th Cir. 2001) (“[T]he provisions of 28
U.S.C. § 1915(e)(2)(B) are not limited to
prisoners.”); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C.
§ 1915(e) “not only permits but requires”
the court to sua sponte dismiss an IFP complaint
that fails to state a claim). An IFP complaint is frivolous
if “it ha[s] no arguable substance in law or
fact.” Tripati v. First Nat'l Bank &
Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (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, (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (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.
it is clear a pro se plaintiff cannot cure the
deficiencies of a complaint, the Court will provide the
pro se plaintiff with an opportunity to amend the
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.”).
Plaintiff's Proposed Complaint suffers from deficiencies
requiring dismissal if not corrected in an amended complaint.
As stated above, the Court is required to liberally construe
pro se documents. See Estelle v. Gamble,
429 U.S. 97, 106 (1976). However, Federal Rule of Civil
Procedure 8 requires a complaint to contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). “Each
allegation must be simple, concise, and direct.”
Proposed Complaint, Plaintiff asserts his constitutional
rights were violated when he was: (1) denied due process; (2)
discriminated against; and (3) illegally seized. Dkt. 1-1.
Plaintiff describes limited facts regarding a situation that
occurred in the Longview, Washington post office. Plaintiff
does not explain how he was denied due process or
discriminated against. See Dkt. 1-1. Further, he
does not allege facts sufficient to show he was illegally
seized in violation of the Fourth Amendment. See id.
Plaintiff merely makes conclusory allegations that the
actions taken by Defendant Blair, an unnamed postal employee,
and unnamed police officers violated Plaintiff's
Plaintiff has failed to provide clarity regarding the nature
of his claims sufficient to show how the alleged acts
violated his rights. As such, Plaintiff has not stated a
short and plain statement of a claim showing he is entitled
to relief. See Iqbal, 556 U.S. at 678 (2009) (a
pleading must be more than an “unadorned,
see also Twombly, 550 U.S. at 545 (to state a claim
for relief, “[f]actual allegations must be enough to
raise a right to relief above the speculative level”).
Court notes that to state a claim for relief under 42 U.S.C.
§ 1983, a plaintiff must show: (1) he suffered a
violation of rights protected by the Constitution or created
by federal statute, and (2) the violation was proximately
caused by a person acting under color of state law. See
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
A complaint alleging constitutional violations by federal
officers in their individual capacity may be maintained under
Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics,403 U.S. 388 (1971). “Actions under
§ 1983 and those under Bivens are identical
save for the replacement of a state actor under § ...