Hopkins v. Warren et al

Filing 2

ORDER denying without prejudice 1 Motion for Leave to Proceed in forma pauperis; Plaintiff has 30 days from the date of this Order to amend his complaint. Signed by Judge Ronald B. Leighton.(DN) Modified on 12/13/2013 (DN). (cc to pltf)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DENNIS R HOPKINS,

CASE NO. C13-6000 RBL

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Plaintiff,
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v.

ORDER DENYING IFP
APPLICATION WITHOUT
PREJUDICE

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JAMES E WARREN,
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Defendant.
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THIS MATTER is before the Court on Plaintiff Hopkins’ Motion to proceed in forma

15 pauperis [Dkt. #1]. The Plaintiff’s handwritten complaint is difficult to read, but it appears that
16 he is allegeing that various defendants violated his Fourth, Fifth, Eighth, and Fourteenth
17 Amendment rights when they evicted him from his apartment while he was in the hospital for
18 prostate cancer treatment. Defendants are apparently the apartment manager and the landlord.
19 The Plaintiff alleges that his property was stolen and he apparently claims it was worth
20 $4,985,785.46. The Court construes the plaintiffs claims as one under 42 U.S.C. §1983 for
21 violations of his constitutional rights.
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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 discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil
ORDER DENYING IFP APPLICATION
WITHOUT PREJUDICE - 1

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actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d 598, 600 (9th

2 Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should “deny leave to proceed
3 in forma pauperis at the outset if it appears from the face of the proposed complaint that the
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action is frivolous or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369
(9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis

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complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Id. (citing Rizzo v.

6 Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.
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The Complaint in this case does not and perhaps cannot allege that the defendants are
state actors. A plaintiff cannot assert a 42 U.S.C. § 1983 claim against any defendant who is not
a state actor. See West v. Atkins, 487 U.S. 42, 48 (1988). This determination is made using a

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two-part test: (1) “the deprivation must . . . be caused by the exercise of some right or a privilege

11 created by the government or a rule of conduct imposed by the government;” and (2) “the party
12 charged with the deprivation must be a person who may fairly be said to be a governmental
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actor.” Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999)
(emphasis added).

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Additionally, Plaintiff’s claim for property damage or theft does not by itself trigger this

15 court’s subject matter jurisdiction.
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Plaintiff shall amend his proposed complaint to address and set forth specific, cognizable

17 claims against the defendants, and the basis for this Court’s subject matter jurisdiction, within 30
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days of the date of this Order. The application as it stands is DENIED, without prejudice.
The court will re-evaluate the application upon receipt and review of an amended

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complaint consistent with this Order.
IT IS SO ORDERED.
Dated this 12th day of December, 2013.

A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER DENYING IFP APPLICATION
WITHOUT PREJUDICE - 2