Hankins v. Lewis County Health Departrment et al

Filing 5

ORDER denying 4 Motion for Leave to Proceed in forma pauperis; denying appointment of counsel; plaintiff has 15 days to pay the filing fee and file an amended complaint; signed by Judge Ronald B. Leighton.(DN) Modified on 6/3/2014 (DN). (cc to pltf)

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1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 CLARENCE HANKINS, CASE NO. C14-5327 RBL 9 Plaintiff, ORDER DENYING IFP 10 v. 11 12 LEWIS COUNTY HEALTH DEPARTRMENT, et al., 13 Defendants. 14 THIS MATTER is before the Court on Plaintiff Hankins’ Application to Proceed in 15 forma pauperis. [Dkt. #1] Hankins’ proposed complaint alleges that the Lewis Count y Health 16 Department and its Prosecutor’s Office (acting through unnamed individuals) deprived him of 17 various constitutional rights, harassed him, discriminated against him, failed to provide him 18 reasonable accommodations (at his own home), and, because his property was formerly a gold 19 mine, attempted to murder him with a firearm. He primarily asserts claims based on these 20 allegations under the Fair Housing Act. 21 Hankins also references a prior Lewis County litigation and adverse judgment, and asks 22 the Court to vacate that judgment. He seeks damages, punitive damages, and declaratory and 23 injunctive relief. Finally, Hankins asks the Court to appoint counsel. 24 ORDER DENYING IFP - 1 1 2 A district court may permit indigent litigants to proceed in forma pauperis upon 3 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The court has broad 4 discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil 5 actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should “deny leave to proceed 6 in forma pauperis at the outset if it appears from the face of the proposed complaint that the 7 action is frivolous or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 8 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis 9 complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Id. (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 10 1984). 11 Hankins’ proposed compliant is insufficient under this standard. If and to the extent he 12 seeks to assert claims based on the violation of his constitutional rights, he must name the 13 individuals who so deprived him under 42 U.S.C. §1983 (or identify the municipality that 14 deprived him of such a right, and assert a claim based on the allegation “that official policy is responsible for a deprivation of rights protected by the Constitution . . . .” Monell v. New York 15 16 City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). Plaintiff’s FHA claims appear to be based on his claim that someone failed to provide 17 reasonable accommodations (for what is not clear) on property that he claims he owns. 18 19 There is no basis for the claim that a County Housing Department broadly has an obligation to improve a property owner’s property to accommodate his disability or to generally improve that property. 20 Hankins’ “attempted murder” claim is not fully described, but it can be said with 21 certainty that the facts he has alleged thus far are not sufficient to state such a claim against the 22 Health Department or the Prosecutor’s office. 23 24 ORDER DENYING IFP - 2 1 Finally, to the extent Hankins asks this Court to review and vacate a state court decision, 2 this Court has no jurisdiction to do so. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 3 (1923); Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983). 4 For these reasons, the Compliant as drafted is frivolous on its face, and although Hankins is apparently indigent, he has not established that he is entitled to proceed in forma pauperis. 5 No constitutional right to counsel exists for an indigent plaintiff in a civil case unless the 6 plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v. Dept. of Social 7 Servs., 452 U.S. 18, 25 (1981). However, pursuant to 28 U.S.C. § 1915(e)(1), the Court has the 8 discretion to appoint counsel for indigent litigants who are proceeding in forma pauperis. United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). The Court will 9 appoint counsel only under “exceptional circumstances.” Id.; Wilborn v. Escalderon, 789 F.2d 10 1328, 1331 (9th Cir. 1986). “A finding of exceptional circumstances requires an evaluation of 11 both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims 12 pro se in light of the complexity of the legal issues involved.” Wilborn, 789 F.2d at 1331 13 (internal quotations omitted). These factors must be viewed together before reaching a decision on whether to appoint counsel under § 1915(e)(1). Id. 14 Hankins has not met this even higher standard, and the Court will not appoint an attorney 15 to pursue the claims in the proposed complaint. The Motion for Appointment of Counsel is 16 DENIED. 17 18 Plaintiff shall file an amended complaint addressing these shortcomings—articulating in plain fashion the “who, what, when, where and why” of his factual allegations, naming the relevant actors, and describing what they did that violated his rights, or pay the filing fee within 19 20 21 15 days of the date of this Order. If he does not, the case will be dismissed without further notice. IT IS SO ORDERED. Dated this 3rd day of June, 2014. A 22 23 RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 24 ORDER DENYING IFP - 3

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