Fischer v. Tacoma Police

Filing 4

ORDER denying 1 Motion for Leave to Proceed in forma pauperis; plaintiff has 21 days from the date of this Order to file an amended complaint or pay the filing fee or this matter will be dismissed; signed by Judge Ronald B. Leighton.(DN) Modified on 4/28/2015 (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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JAY FRANK FISCHER,

CASE NO. C15-5221 RBL

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Plaintiff,

ORDER

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v.
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TACOMA POLICE,
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Defendant.
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THIS MATTER is before the Court on Plaintiff Jay Frank Fisher’s proposed complaint

15 and application to proceed in forma pauperis [Dkt. #1]. Fisher seeks to sue the Tacoma Police
16 Department for “negligence,” in connection with an “emergency call” she placed, and after
17 which they failed to take any action against the person that triggered the call. Fisher claims that
18 the police removed her “from her room” (perhaps at the Salvation Army, see Cause No. 15 cv
19 5220RBL), and failed to assist her with transportation or food or shelter.
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The case is one of five1 proposed complaints Fisher has filed this month.

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The cases are: Fisher v. Pierce County Superior Court, Cause No. 15 cv 5156RBL;
23 Fisher v. Always Hope Taylor Housing, Cause No. 15 cv 5212RBL; Fisher v. American Laser,
Cause No. 15 cv 5213RBL; Fisher v. The Salvation Army, Cause No. 15 cv 5220RBL; and
24 Fisher v Tacoma Police, Cause No. 15 cv 5221RBL.

ORDER - 1

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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
6 Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should “deny leave to proceed
7 in forma pauperis at the outset if it appears from the face of the proposed complaint that the
8 action is frivolous or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369
9 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis
10 complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Id. (citing Rizzo v.
11 Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.
12 1984).
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A pro se Plaintiff’s complaint is to be construed liberally, but like any other complaint it

14 must nevertheless contain factual assertions sufficient to support a facially plausible claim for
15 relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell
16 Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A
17 claim for relief is facially plausible when “the plaintiff pleads factual content that allows the
18 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
19 Iqbal, 556 U.S. at 678.
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Plaintiff Fisher’s proposed complaint does not meet this standard, and appears to be

21 frivolous. The basis for this court’s jurisdiction over a “negligence claim” is not apparent. Nor
22 is the basis for the claim in the first place. The Police Department does not owe the Plaintiff a
23 duty to provide transportation, food, or shelter. Fisher has not identified the basis for any claim,
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ORDER - 2

1 whether statutory, constitutional, or otherwise. Generally, under § 1983, a person can be sued
2 for constitutional violations committed under the color of state law. A state and its agencies are
3 not a person under § 1983. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69
4 (1997). Additionally, a plaintiff cannot assert a 42 U.S.C. § 1983 claim against any defendant
5 who is not a state actor. See West v. Atkins, 487 U.S. 42, 48 (1988). This determination is made
6 using a two-part test: (1) “the deprivation must . . . be caused by the exercise of some right or a
7 privilege created by the government or a rule of conduct imposed by the government;” and (2)
8 “the party charged with the deprivation must be a person who may fairly be said to be a
9 governmental actor.” Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th
10 Cir. 1999) (emphasis added). Fisher has not named a “person” as a defendant.
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For these reasons, the application to proceed in forma pauperis is DENIED. Plaintiff

12 shall pay the filing fee or file an amended complaint addressing these deficiencies within 21 days
13 of this Order or the case will be dismissed without further notice.
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IT IS SO ORDERED.

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Dated this 28th day of April, 2015.

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A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER - 3