Simonds v. Fox 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. Fox et al Doc. 2 Case 2:06-cv-01384-RSM 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 FOX, et al., ) ) Defendants. ) _____________________________________ ) _ Case No. C06-1384-RSM-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 two page "Complaint" listing the presumed last names of two King County Superior Court 19 judges, two King County sherriff's deputies, an administrator and two commissioners of the 20 Washington Court of Appeals, and two other individuals. Id. Apart from the words 21 "negligence," "fraud" and "due process," and an indecipherable flurry of isolated references to 22 a host of federal statutes, RCW provisions, local rules and Federal Rules of Civil Procedure, 23 the complaint contains no further information regarding plaintiff's claims. Id. Nor does it 24 provide a request for relief, apart from the vague prayer for "mandatory injunction orders," the 25 desire "[t]o effectuate full and complete justice" and the request that both commissioners be 26 "imprisoned in jail." Id. REPORT & RECOMMENDATION PAGE - 1 Case 2:06-cv-01384-RSM Document 2 Filed 09/27/2006 Page 2 of 3 01 Pursuant to 28 U.S.C. 1915(e)(2)(B), this Court may deny an application to proceed 02 IFP and should dismiss an action if it is frivolous or the complaint fails to state a claim upon 03 which relief can be granted. See 28 U.S.C. 1915(e)(2)(B)(i)-(ii); O'Loughlin v. Doe, 920 04 F.2d 614, 616 (9th Cir. 1990). An action is frivolous if "it lacks an arguable basis either in law 05 or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). 06 Here, plaintiff fails to allege any facts to place defendants on notice of the nature of his 07 claims, to request any relief, or to otherwise provide any basis for jurisdiction in this Court. 08 See Fed. R. Civ. P. 8(a). The complaint also appears to name as defendants governmental 09 actors who enjoy immunity from suit. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 427 10 (1976); Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Because this action appears frivolous 11 and, at any rate, fails to state a claim upon which relief can be granted, it is subject to dismissal 12 under 28 U.S.C. 1915(e)(2)(B) and Federal Rule of Civil Procedure 12(b)(6). 13 The Court advises plaintiff of his responsibility to research the facts and law before 14 filing an action to determine whether his action is frivolous. If he files a frivolous action, he 15 may be sanctioned. See Fed. R. Civ. P. 11. The court would likely impose a sanction of 16 dismissal on any frivolous action. If plaintiff files numerous frivolous or malicious actions, the 17 court may bar him from proceeding IFP in this court. See DeLong v. Hennessey, 912 F.2d 18 1144, 1146-48 (9th Cir. 1990) (discussing bar order requirements).1 19 20 21 22 23 24 25 26 The Court notes that plaintiff is a prolific litigator who has filed a half-dozen similar lawsuits in the past two years against various governmental officers and attorneys in this district. See, e.g., Simonds v. Zilly, C06-1385-RSL (W.D. Wash. 2006); Simonds v. Canby (II), C06-1383JCC-JPD (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 by plaintiff in this district was dismissed on grounds similar to those recommended by the Court today. See Fox (I), C04-1887-JCC, Dkt. No. 13 (dismissing case for failure to comply with court's order to show cause; court remained "unable to decipher Plaintiff's intent and meaning from his filings"); see also Simonds v. Fox, Case No. 05-35218 (9th Cir. June 20, 2005) (deputy clerk dismissing case for failure to prosecute). REPORT & RECOMMENDATION PAGE - 2 1 Accordingly, because of the deficiencies in plaintiff's IFP application and complaint, his Case 2:06-cv-01384-RSM Document 2 Filed 09/27/2006 Page 3 of 3 01 request to proceed IFP should be DENIED and this action DISMISSED without prejudice. 02 See 28 U.S.C. 1915(e)(2)(B). A proposed Order of Dismissal accompanies this Report and 03 Recommendation. If plaintiff believes that the deficiencies outlined herein can be cured by an 04 amendment to his Complaint, he should lodge an Amended Complaint as a part of his 05 objections, if any, to this Report and Recommendation. 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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