Simonds v. Canby et al

Filing 2

REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Paul Simonds. Objections to R&R due by 10/13/2006. Noting Date set for 10/20/2006. Signed by Magistrate Judge James P. Donohue. (Attachments: # 1 R&R Cover Letter; # 2 R&R Proposed Order; and # 3 R&R Proposed Judgment.) (BH)

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Simonds v. Canby et al Doc. 2 Case 2:06-cv-01383-JCC Document 2 Filed 09/27/2006 Page 1 of 3 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 PAUL SIMONDS, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) Plaintiff, ) ) v. ) ) ) JUDGE CANBY, et al., ) ) Defendants. ) _____________________________________ ) _ Case No. C06-1383-JCC-JPD REPORT AND RECOMMENDATION Plaintiff, appearing pro se, recently filed an application to proceed in forma pauperis 17 (IFP) in this 42 U.S.C. 1983 action. Dkt. No. 1. Plaintiff included with his application a 18 one-and-a-half page "Complaint" listing the last names of two Ninth Circuit judges, two Ninth 19 Circuit motion attorneys, and a person who appears to be a deputy clerk. Id. Apart from the 20 words "willful misconduct," "abusing contempt power,"and "due process," and an 21 indecipherable flurry of isolated references to a host of federal statutes, local rules and Federal 22 Rules of Civil Procedure, the complaint contains no further information regarding plaintiff's 23 claims. Id. Nor does it provide a request for relief, apart from the vague desire "[t]o 24 effectuate full and complete justice." Id. 25 Pursuant to 28 U.S.C. 1915(e)(2)(B), this Court may deny an application to proceed 26 IFP and should dismiss an action if, among other things, it is frivolous or the complaint fails to REPORT & RECOMMENDATION PAGE - 1 Case 2:06-cv-01383-JCC Document 2 Filed 09/27/2006 Page 2 of 3 01 state a claim upon which relief can be granted. See 28 U.S.C. 1915(e)(2)(B)(i)-(ii); 02 O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). An action is frivolous if "it lacks an 03 arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). 04 Here, plaintiff fails to allege any facts to place defendants on notice of the nature of his 05 claims, to request any relief, or to otherwise provide any basis for jurisdiction in this Court. 06 See Fed. R. Civ. P. 8(a). The complaint also appears to name as defendants governmental 07 actors who enjoy immunity from suit. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 427 08 (1976); Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Because this action appears frivolous 09 and fails to state a claim upon which relief can be granted, it is subject to dismissal under 28 10 U.S.C. 1915(e)(2)(B) and Federal Rule of Civil Procedure 12(b)(6). 11 The Court advises plaintiff of his responsibility to research the facts and law before 12 filing an action to determine whether his action is frivolous. If he files a frivolous action, he 13 may be sanctioned. See Fed. R. Civ. P. 11. The court would likely impose a sanction of 14 dismissal on any frivolous action. If plaintiff files numerous frivolous or malicious actions, the 15 court may bar him from proceeding IFP in this court. See DeLong v. Hennessey, 912 F.2d 16 1144, 1146-48 (9th Cir. 1990) (discussing bar order requirements).1 17 Accordingly, because of the deficiencies in plaintiff's IFP application and complaint, his 18 request to proceed IFP should be DENIED and this action DISMISSED without prejudice. 19 See 28 U.S.C. 1915(e)(2)(B). A proposed Order of Dismissal accompanies this Report and 20 Recommendation. If plaintiff believes that the deficiencies outlined herein can be cured by an 21 The Court notes that plaintiff is a prolific litigator who has filed a half-dozen similar 22 lawsuits in the past two years against various governmental officers and attorneys in this district. 23 See, e.g., Simonds v. Zilly, C06-1385-RSL (W.D. Wash. 2006); Simonds v. Fox (II), C06-1384RSM (W.D. Wash. 2006); Simonds v. Fox (I), C04-2473-JCC (W.D. Wash. 2005); Simonds v. Canby (I), C05-1887-JCC (W.D. Wash. 2005). Indeed, a strikingly similar action previously filed 24 by plaintiff in this district was dismissed on grounds similar to those recommended by the Court 25 today. See Canby (I), C05-1887-JCC, Dkt. No. 12 (dismissing case for failure to comply with 26 court's order to show cause; court remained "unable to decipher Plaintiff's intent and meaning from his filings"). REPORT & RECOMMENDATION PAGE - 2 1 Case 2:06-cv-01383-JCC Document 2 Filed 09/27/2006 Page 3 of 3 01 amendment to his Complaint, he should lodge an Amended Complaint as a part of his 02 objections, if any, to this Report and Recommendation. 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DATED this 27th day of September, 2006. A JAMES P. DONOHUE United States Magistrate Judge REPORT & RECOMMENDATION PAGE - 3

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