United States District Court, W.D. Washington, Tacoma
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 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 24,
2020, to cure the deficiencies identified herein.
alleges Defendants Allstate Insurance Company, Insurance
Providers Inc., Mike Kreidler, Governor Jay Inslee, Dave
Sumner, III, and Sharon Kay Sumner violated his
constitutional rights. Dkt. 1-1. However, Plaintiff's
Proposed Complaint contains no factual allegations. See
id. Rather, Plaintiff states he will be filing complaint
pleadings within 90 days. See id. at pp. 7, 9.
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.”
Fed.R.Civ.P. 8(d). Plaintiff's Proposed Complaint
contains no allegations against Defendants. Thus, his
Proposed Complaint fails to state a claim upon which relief
can be granted and dismissal is warranted. See
Iqbal, 556 U.S. at 678 (2009) (a pleading must be more
than an “unadorned, the-defendant-unlawfully-harmed-me
accusation”); 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).
The first step in a § 1983 claim is therefore to
identify the specific constitutional right allegedly
infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994). To satisfy the second prong, a plaintiff must allege
facts showing how individually named defendants caused, or
personally participated in causing, the harm alleged in the
complaint. See Arnold v. IBM, 637 F.2d 1350, 1355
(9th Cir. 1981).
Instructions to Plaintiff and the Clerk
the deficiencies described above, the Court finds Plaintiff
has failed to state a claim. Therefore, the Court dismisses
Plaintiff's Proposed Complaint without prejudice. If
Plaintiff intends to pursue to this action, he must file an
amended complaint on or before January 24, 2020. The amended
complaint will act as a complete substitute for any
previously filed complaint, and not as a supplement. The
Court will screen the amended complaint to determine whether
it contains factual allegations linking each defendant to the
alleged violations of Plaintiff's rights. If Plaintiff