Jones v. Selecky

Filing 2

ORDER denying 1 Motion for Leave to Proceed in forma pauperis and dismissing action by Judge Benjamin H Settle.(TG; cc mailed to plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ROXANNE JONES,

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Plaintiff,

CASE NO. C11-5661BHS

v.
STATE OF WASHINGTON,
DEPARTMENT OF CORRECTIONS,
Defendant.

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ORDER DENYING
PLAINTIFF’S APPLICATION
TO PROCEED IN FORMA
PAUPERIS AND DISMISSING
ACTION

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This matter comes before the Court on Plaintiff Roxanne Jones’s (“Jones”)

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Application to Proceed In Forma Pauperis (Dkt. 1). The Court has considered the

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pleadings filed in support of the motion and the remainder of the file and hereby denies

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the motion and dismisses this action for the reasons stated herein.

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Jones asserts that Defendants Mary Selecky and the State of Washington

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Department of Health Medical Disciplinary Board (“Board”) have violated her rights

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under the Fourteenth Amendment of the United States Constitution. Dkt. 1-1 at 3. Jones

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claims that she suffered injuries from a “fraud surgery” and that she reported the doctors

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to the Board. Id. at 2. She alleges that the Board failed to properly investigate the matter

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and failed to properly discipline the doctors. Id. Jones seeks one million dollars in

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damages for each year that she has suffered from her injuries. Id. at 4.

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ORDER - 1

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The district court may permit indigent litigants to proceed in forma pauperis upon

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completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). However, the

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“privilege of pleading in forma pauperis . . . in civil actions for damages should be

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allowed only in exceptional circumstances.” Wilborn v. Escalderon, 789 F.2d 1328 (9th

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Cir. 1986). Moreover, the court has broad discretion in denying an application to proceed

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in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S.

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845 (1963).

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In this case, Jones has failed to show that she should be entitled to proceed in
forma pauperis. While she seeks both damages and what appears to be injunctive relief,

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she has failed to articulate any claim that may be reviewed by this Court. Jones is

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attempting to sue an agency of the State of Washington for violations of the Fourteenth

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Amendment to the United States Constitution. A claim asserting violations of the

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Fourteenth Amendment may be brought under 42 U.S.C. § 1983. However, the Eleventh

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Amendment to the United States Constitution bars citizens from bringing suit against a

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state, or its agencies, in federal court. Pennhurst State School & Hosp. v. Halderman,

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465 U.S. 89, 100 (1984). There are two exceptions to a state’s Eleventh Amendment

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immunity: (1) a state may consent to suit against it in federal court (see Hans v.

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Louisiana, 134 U.S. 1 (1890)); or (2) Congress, in certain situations, may abrogate a

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state’s Eleventh Amendment immunity (see Pennhurst, 465 U.S. at 99). The State of

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Washington has not waived its Eleventh Amendment immunity. Skokomish Indian Tribe

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v. France, 269 F.2d 555, 560-61 (9th Cir. 1959). In addition, the United States Supreme

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Court has specifically held that Congress did not abrogate states’ Eleventh Amendment

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immunity from suit in enacting § 1983. Quern v. Jordan, 440 U.S. 332, 345 (1979).

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Therefore, the Court concludes that, at this time, Jones has failed to show that she

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should be entitled to proceed in forma pauperis based on the proposed complaint. In

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addition, because Jones’s claims are barred by the Eleventh Amendment, the Court

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concludes that this action should be dismissed for failure to state a claim upon which

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ORDER - 2

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relief can be granted. See Fed. R. Civ. P. 12(b)(6); see also Omar v. Sea-Land Serv., Inc.,

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813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under

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Fed. R. Civ. P. 12(b)(6) . . . . Such a dismissal may be made without notice where the

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claimant cannot possibly win relief.”).

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Therefore, it is hereby ORDERED that Jones’s Application to Proceed In Forma
Pauperis (Dkt. 1) is DENIED and this action is DISMISSED.
DATED this 25th day of August, 2011.

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A

BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3