Peck v. Tunheim

Filing 2

ORDER denying 1 Motion for Leave to Proceed in forma pauperis; Plaintiff has 21 days to pay the filing fee or file an Amended Complaint or this matter will be dismissed; signed by Judge Ronald B. Leighton.**4 PAGE(S), PRINT ALL**(James Peck, Prisoner ID: 369057)(DN)

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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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JAMES KYLE PECK,

CASE NO. C16-5580-RBL

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Plaintiff,
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v.

ORDER DENYING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS

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JON TUNHEIM,
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Defendant.
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THIS MATTER is before the Court on Plaintiff Peck’s Motion to Leave to Proceed in

15 forma pauperis, supported by his proposed complaint. [Dkt. #1] Peck claims that his prosecution
16 in Thurston County resulted in the loss of his parental rights. His complaint is summed up in one
17 paragraph:
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ORDER DENYING MOTION FOR LEAVE TO
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[Dkt. #1]
A district court may permit indigent litigants to proceed in forma pauperis upon
completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The Court has broad
discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil
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 in
forma pauperis at the outset if it appears from the face of the proposed complaint that the 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 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); see also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
A pro se Plaintiff’s complaint is to be construed liberally, but like any other complaint it
must nevertheless contain factual assertions sufficient to support a facially plausible claim for
relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A
claim for relief is facially plausible when “the plaintiff pleads factual content that allows the
ORDER DENYING MOTION FOR LEAVE TO
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1 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
2 Iqbal, 556 U.S. at 678.
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Peck’s complaint does not meet this standard. The conclusory claim that the prosecutor

4 deprived him of his right to raise his child (in violation of his due process rights) is facially
5 frivolous. Any incarcerated person loses his or her ability to raise his child, and a host of other
6 rights. The naked claim that by prosecuting Peck, the prosecutor violated his constitutional rights
7 is insufficient as a matter of law.
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The Motion to proceed in forma pauperis is DENIED. Peck shall pay the filing fee, or

9 file an amended complaint plausibly articulating a factual basis for the claim that Defendant
10 violated his rights by “allowing” his child custody case to be decided against him within 21 days
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Peck is cautioned that this court cannot and will not review state court decisions or

13 determinations. This Court cannot and will not review or reverse decisions made in state court.
14 The Rooker-Feldman doctrine precludes “cases brought by state-court losers complaining of
15 injuries caused by state-court judgments . . . and inviting district court review and rejection of
16 those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct.
17 1517, 1521, 161 L. Ed. 2d 454 (2005). [W]hen a losing plaintiff in state court brings a suit in
18 federal district court asserting as legal wrongs the allegedly erroneous legal rulings of the state
19 court and seeks to vacate or set aside the judgment of that court, the federal suit is a forbidden de
20 facto appeal. Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir.2003); Carmona v. Carmona, 603 F.3d
21 1041, 1050 (9th Cir. 2008).
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ORDER DENYING MOTION FOR LEAVE TO
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Furthermore, if and to the extent Peck is suing defendant Tunheim for prosecuting him,

2 Tunheim is entitled to prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 430, 96
3 S.Ct. 984, 47 L.Ed.2d 128 (1976).
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An amended complaint that asserts the prosecutor is liable for the collateral consequences

5 of Peck’s conviction and incarceration, or seeks reversal of some state court adjudication, will be
6 dismissed without further notice.
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IT IS SO ORDERED.

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Dated this 18th day of July, 2016.

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A

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Ronald B. Leighton
United States District Judge

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ORDER DENYING MOTION FOR LEAVE TO
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