Boren v. ACLU

Filing 8

INITIAL REVIEW ORDER finding as moot 7 Motion for Settlement; finding as moot 1 Motion for Leave to Proceed in forma pauperis; Pla's complaint is dismissed with prejudice. Pla now has eight strikes. The Clerk of Court shall not accept for fi ling, any further in forma pauperis civil complaint or civil petitions from Gerry Boren. If he wishes to file such a case, he may, under the case in which he received his third strike-CV 07-526-S-BLW-file a motion, limited to two pages only, present ing facts showing that he is under imminent danger of serious physical injury. If the motion is denied, pla shall not file a complaint or petition without payment of the filing fee, and the Clerk of Court shall not accept for filing, a complaint or petition from pla Gerry Boren without the fee. Any civil complaint petition accompanied by the proper filing fee may be accepted for filing by the Clerk of Court. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

Boren v. ACLU

Doc. 8

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

G E R R Y BOREN, C a s e No. 1:09-CV-646-REB Plaintiff, I N I T I A L REVIEW ORDER v. A C L U of IDAHO, Defendant.

P la in tif f 's Complaint was conditionally filed on December 14, 2009. The Court n o w reviews the Complaint to determine whether summary dismissal is appropriate. See 2 8 U.S.C. §§ 1915(e) and 1915A. The Court also reviews Plaintiff's Application to P ro c e e d in Forma Pauperis . (Docket No. 1.) Having reviewed the record, and otherwise b e in g fully informed, the Court enters the following Order. REVIEW OF COMPLAINT 1. S ta n d a r d of Law T h e Court is required to review complaints seeking relief against a governmental e n tity or an officer or employee of a governmental entity to determine whether summary d is m is s a l is appropriate. 28 U.S.C. § 1915. The Court must dismiss a complaint or any

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Dockets.Justia.com

portion thereof which states a claim that is frivolous or malicious, that fails to state a c la im upon which relief may be granted, or that seeks monetary relief from a defendant w h o is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 (1989); Franklin v. Murphy, 7 4 5 F.2d 1221, 1227-28 (9th Cir. 1984). Accordingly, a court may dismiss claims based o n an indisputably meritless legal theory or claims alleging clearly baseless factual c o n te n tio n s . Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The critical inquiry is whether a c o n s titu tio n a l claim, however inartfully pled, has an arguable legal and factual basis. See J a c k s o n v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. A court should dismiss a complaint for failure to state a claim upon which relief m a y be granted only if it appears beyond doubt that plaintiff can prove no set of facts to s u p p o rt the claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U .S . 69, 73, 104 S.Ct. 2229, 2232 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S .C t. 99, 101-02 (1957)). For purposes of its review, the Court must accept as true the a lle g a tio n s of the complaint, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 7 4 0 , 96 S.Ct. 1848, 1850 (1976), construe the pleadings in a light most favorable to p la in tif f , Id., and resolve all doubts in plaintiff's favor, Ernest W. Hahn, Inc. v. Codding, 6 1 5 F.2d 830, 834 (9th Cir. 1980). P la in tif f brings this suit under 42 U.S.C. § 1983, the civil rights statute. To state a

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claim under § 1983, a plaintiff must allege four elements: "(1) a violation of rights p ro te c te d by the Constitution or created by federal statute (2) proximately caused (3) by c o n d u c t of a `person' (4) acting under color of state law." Crumpton v. Gates, 947 F.2d 1 4 1 8 , 1420 (9th Cir. 1991). Section 1983 is "`not itself a source of substantive rights,' b u t merely provides `a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989) (q u o tin g Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 2695 n.3, 61 L.Ed.2d 4 3 3 (1979)). T itle 28 U.S.C. § 1915(g) provides: "In no event shall a prisoner bring a civil a c tio n or appeal a judgment in a civil action or proceeding under this section if the p riso n e r has, on 3 or more prior occasions, while incarcerated or detained in any facility, b ro u g h t an action or appeal in a court of the United States that was dismissed on the g ro u n d s that it is frivolous, malicious, or fails to state a claim upon which relief may be g ra n te d , unless the prisoner is under imminent danger of serious physical injury." This is s o m e tim e s referred to as a "three strike" rule for prisoner pro se litigants. 2. A n a ly sis T h e Court finds that Plaintiff has been issued seven strikes in this Court for filing s u its that were frivolous or malicious. (See Order of January 3, 2008, Docket No. 5 in C a se No. 1:07-CV-522-EJL, Boren v. Wasden, et al.) Because Plaintiff has accrued at le a s t three strikes, he is no longer entitled to file complaints in federal court without first

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paying the filing fee. The only exception is that the Court may entertain a lawsuit filed in f o rm a pauperis if the prisoner is under imminent danger of serious physical injury. See 28 U .S .C . § 1915(g). H e re , Plaintiff alleges that the ACLU of Idaho has violated his constitutional right to equal protection under the Fourteenth Amendment, by indicating that it will not re p re se n t him in lawsuits against other defendants. The current allegations do not support a n y danger of physical injury to Plaintiff. It is also apparent to this Court that Plaintiff h a s not stated a claim on which relief can be granted. U n lik e criminal defendants, prisoners and indigents in civil actions have no c o n s titu tio n a l right to counsel unless their physical liberty is at stake. Lassiter v. Dept. of S o c ia l Services, 452 U.S. 18, 25 (1981). The federal courts have no authority to require a tto rn e ys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(e). See M a lla r d v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 396, 298 (1989). W h e n a court "appoints" an attorney, it can only do so if the attorney voluntarily accepts th e assignment. Id. Given the limited allegations in Plaintiff's complaint here, the Court f in d s that no violation of rights under the Constitution or federal statute is shown. F u rth e r, there is no demonstration that the ACLU of Idaho is acting under color of s ta te law. Plaintiff asserts that the ACLU is an organization of Idaho attorneys who are m e m b e rs of the Idaho State Bar, and who advocate for prisoners' constitutional rights. However, Plaintiff fails to connect ACLU's actions or inaction to conduct that could be

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construed as being under color of state law. The ACLU is not a federal entity, and its m e m b e rs are not federal officers. See U.S. v. Otherson, 637 F.2d 1276 (9th Cir. 1980). Conduct by the ACLU is not action done in conspiracy with government officials. See P h illip s v. Mashburn, 746 F.2d 782 (11th Cir. 1984). According to Exhibits attached to th e complaint and highlighted by Plaintiff, "the ACLU is funded by voluntary private d o n a tio n s . [The ACLU's] legal staff is quite small, and most of the cases [it] accept[s] m u s t be handled by lawyers in private practice who donate their time without charge." (Exhibit A, Docket No. 3 at 13.) The Court here finds that the conduct of the ACLU of Id a h o , described in the complaint, was not under color of state law. Because Plaintiff has f a ile d to demonstrate any of the four required elements for a claim under § 1983, the C o u rt finds that Plaintiff has failed to state a claim on which relief can be granted. Federal Rule of Civil Procedure 15(a) requires the Court to grant leave to amend a c o m p la in t freely, when justice so requires. In exercising its discretion with regard to the a m e n d m e n t of pleadings, "a court must be guided by the underlying purpose of Rule 15 ­ to facilitate decision on the merits rather than on the pleadings or technicalities." United S ta te s v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Here, given the existing allegations, th e Court finds that it appears beyond doubt that Plaintiff can prove no set of facts to s u p p o rt a federal claim that would entitle him to relief on the merits of this case. T h e re f o re , the Court will not grant leave, but will dismiss Plaintiff's complaint.

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ORDER B a se d on the foregoing, IT IS ORDERED THAT: 1. 2. P la in tif f 's Complaint (Docket No. 3) is DISMISSED with prejudice. P la in tif f 's Application to Proceed in Forma Pauperis (Docket No. 1) is d e e m e d MOOT. 3. 4. P la in tif f 's Motion for Settlement (Docket No. 7) is deemed MOOT. P la in tif f 's Complaint is issued a strike under 28 U.S.C. § 1915(g). Plaintiff n o w has eight strikes. See CV 07-234-S-BLW (one strike), CV 07-526-SB L W (two strikes), CV 07-522-S-EJL (four strikes). 5. T h e Clerk of Court shall not accept for filing, any further in forma pauperis c iv il complaints or civil petitions from Gerry Boren. If he wishes to file s u c h a case, he may, under the case in which he received his third strike ­ C V 07-526-S-BLW ­ file a motion, limited to two pages only, presenting f a c ts showing that he is under imminent danger of serious physical injury. If the motion is denied, Plaintiff shall not file a compliant or petition w ith o u t payment of the filing fee, and the Clerk of Court shall not accept f o r filing, a complaint or petition from Plaintiff Gerry Boren without the f e e . Any civil complaint or petition accompanied by the proper filing fee m a y be accepted for filing by the Clerk of Court.

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DATED: July 28, 2010

Honorable Ronald E. Bush U . S. Magistrate Judge

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