Judd v. Nevin

1 HONORABLE RONALD B. LEIGHTON [6] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON [7] AT TACOMA [8] EARLE W JUDD II, CASE NO. C19-6030RBL [9] Plaintiff, ORDER DENYING MOTION TO 10 v. PROCEED IN FORMA PAUPERIS 11 JACK F NEVIN, et al., 12 Defendants. [13] 14 THIS MATTER is before the Court on Plaintiff Judd’s Motion for leave to proceed in 15 forma pauperis, supported by his proposed complaint. [Dkt. # 1-1]. Judd seeks to sue a series of 16 judges, lawyers and others who were apparently involved in his state court dissolution 17 proceeding, for violating his constitutional rights in that proceeding. He raises a wide variety of 18 claims including failure to accommodate his disability and assignment of his disability payments 19 to his now ex-wife. He claims they lied and conspired to violate his rights. He seems to suggest 20 that he “pled the fifth” and that one or more of the judges held that fact against him, in a civil 21 proceeding. 22 A district court may permit indigent litigants to proceed in forma pauperis upon 23 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915 (a). The Court has broad [24] 1 discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil 2 actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 3 1963), cert. denied 375 U.S. 845 (1963). 4 A person is eligible to proceed in forma pauperis if they are unable to pay the costs of 5 filing and still provide the necessities of life. See Rowland v. Cal. Men's Colony, Unit II Men’s 6 Advisory Council, 506 U.S. 194, 203 (1993) (internal quotations omitted). This generally 7 includes incarcerated individuals with no assets and persons who are unemployed and dependent 8 on government assistance. See, e.g., Ilagan v. McDonald, 2016 U.S. Dist. LEXIS 79889 , at *2 9 (D. Nev. June 16, 2016) (granting petition based on unemployment and zero income); Reed v. 10 Martinez, 2015 U.S. Dist. LEXIS 80629 , at *1, 2015 WL 3821514 (D. Nev. June 19, 2015) 11 (granting petition for incarcerated individual on condition that applicant provides monthly 12 payments towards filing fee). It does not include those whose access to the court system is not 13 blocked by their financial constraints, but rather are in a position of having to weigh the financial 14 constraints pursuing a case imposes. See Sears, Roebuck & Co. v. Charles W. Sears Real Estate, 15 Inc., 686 F. Supp. 385, 388 (N.D. N.Y.), aff’d, 865 F.2d 22 (2d Cir. 1988) (denying petition to 16 proceed IFP because petitioner and his wife had a combined annual income of between $34,000 17 and $37,000). Judd appears to have met the indigency component of the in forma pauperis 18 standard. 19 However, a court should “deny leave to proceed in forma pauperis at the outset if it 20 appears from the face of the proposed complaint that the action is frivolous or without merit.” 21 Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see 22 also 28 U.S.C. § 1915 (e)(2)(B)(i). An in forma pauperis complaint is frivolous if “it ha[s] no [24] 1 arguable substance in law or fact.” Id. (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 2 1985); see also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). 3 A pro se Plaintiff’s complaint is to be construed liberally, but like any other complaint it 4 must nevertheless contain factual assertions sufficient to support a facially plausible claim for 5 relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007)). A 7 claim for relief is facially plausible when “the plaintiff pleads factual content that allows the 8 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 9 Iqbal, 556 U.S. at 678 . 10 Ordinarily, the Court will permit pro se litigants an opportunity to amend their complaint 11 to state a plausible claim. See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 12 2011) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, 13 that the complaint could not be saved by any amendment.”) 14 Judd’s proposed claims against the defendants he has named do not meet this standard. 15 First, all of his §1983 claims against the judges and the court personnel are barred as a matter of 16 law. Any judicial act a judge carries out entitles the judge to absolute immunity. See Stump v. 17 Sparkman, 435 U.S. 349 , 98 S.Ct. 1099 , 55 L.Ed.2d 331 (1978). A judge is entitled to immunity 18 even if the action he took was in error, was malicious, or was in excess of his authority. Id. at 19 1101. This immunity extends to court personnel. 20 Second, Judd asks this court to correct or reverse decisions made in state court, but it 21 cannot and will not do so. The Rooker-Feldman doctrine precludes “cases brought by state-court 22 losers complaining of injuries caused by state-court judgments . . . and inviting district court 23 review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 [24] 1 U.S. 280 , 284, 125 S. Ct. 1517, 1521 , 161 L. Ed. 2d 454 (2005). [W]hen a losing plaintiff in state 2 court brings a suit in federal district court asserting as legal wrongs the allegedly erroneous legal 3 rulings of the state court and seeks to vacate or set aside the judgment of that court, the federal 4 suit is a forbidden de facto appeal. Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir. 2003); Carmona 5 v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2008). The corrective for any claimed errors in the 6 state court case(s) was an appeal of the results in those cases, not a new litigation against the 7 participants. 8 Third, if and to the extent Judd asserts § 1983 claims against the private attorneys 9 representing his ex-wife, those claims fail as a matter of law. A plaintiff cannot assert a 42 10 U.S.C. § 1983 claim for violation of constitutional rights against a defendant who is not a state 11 actor. See West v. Atkins, 487 U.S. 42, 48 (1988). This determination is made using a two-part 12 test: (1) “the deprivation must . . . be caused by the exercise of some right or a privilege created 13 by the government or a rule of conduct imposed by the government;” and (2) “the party charged 14 with the deprivation must be a person who may fairly be said to be a governmental actor.” Sutton 15 v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999) (emphasis added). 16 Judd’s §1983 claims are fatally flawed. His Motion for Leave to proceed in forma 17 pauperis is therefore DENIED, and he shall pay the filing fee or file a proposed amended 18 complaint within 21 days. Any proposed amended complaint should address and resolve the 19 flaws described above. He must set forth the “who what when where and why” of a plausible, 20 // 21 // 22 // [24] 1 viable claim against a defendant over whom this court has jurisdiction. If he does not, the matter 2 will be dismissed without further notice. 3 IT IS SO ORDERED. 4 Dated this 7th day of November, 2019. 5 A [6] Ronald B. Leighton 7 United States District Judge