Peck v. Tunheim

Filing 5

ORDER denying 4 Plaintiff's Motion to proceed in forma pauperis; plaintiff has 21 days to pay the file or file an amended complaint answering the questions in this Order, or this matter will be dismissed; signed by Judge Ronald B. Leighton.**3 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,

[Dkt. #s 3 and 4]

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Defendant.
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THIS MATTER is before the Court on Plaintiff Peck’s renewed motion for leave to

15 proceed in forma pauperis [Dkt. #4] supported by his proposed amended complaint [Dkt. #3].
16 The court denied his prior application because his complaint included only the conclusory claim
17 that prosecutor Tunheim, acting under color of state law, deprived him of his right to care for his
18 child. Peck is incarcerated, apparently after being successfully prosecuted by Tunheim.
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Peck’s amended complaint repeats his claim that he is attempting to get a hearing in state

20 court, but that somehow Tunheim is “striking” his motions, without notice to him and without
21 the court’s involvement. He claims that Tunheim is acting outside of the scope of his authority
22 by violating Peck’s rights under the parental-autonomy doctrine. Thus, he claims, Tunheim is not
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ORDER DENYING MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS - 1

1 entitled to prosecutorial immunity. He seeks an order directing Tunheim not to violate the
2 parental-autonomy doctrine.
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A district court may permit indigent litigants to proceed in forma pauperis upon

4 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The court has broad
5 discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil
6 actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d 598, 600 (9th
7 Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should “deny leave to proceed
8 in forma pauperis at the outset if it appears from the face of the proposed complaint that the
9 action is frivolous or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369
10 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis
11 complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Id. (citing Rizzo v.
12 Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.
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A pro se plaintiff’s complaint is to be construed liberally, but like any other complaint it

15 must nevertheless contain factual assertions sufficient to support a facially plausible claim for
16 relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell
17 Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A
18 claim for relief is facially plausible when “the plaintiff pleads factual content that allows the
19 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
20 Iqbal, 556 U.S. at 678.
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Peck’s new complaint fails to meet this standard. He has plead no facts supporting his

22 conclusory claim that Tunheim has violated his rights—there is no articulation of what he did,
23 when, or how he managed to “strike” hearings that Peck filed in state court without the court’s
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[DKT. #S 3 AND 4] - 2

1 involvement. There is no plausible claim that he is violating the rights Peck claims. What is he
2 doing, exactly? Why is it actionable in this court? What is the basis for the Court’s jurisdiction
3 over the claim? How can it be that Tunheim is acting under color of state law if he is being sued
4 personally, and not for his conduct as a prosecutor? Under the Rooker Feldman doctrine
5 (explained in the Court’s prior Order), how can this Court tell the state court how to address or
6 respond to Peck’s filings there? It is not enough to simply say that Tunheim is violating
7 something—Peck must plead actual facts plausibly supporting such a conclusion. He has not
8 done so.
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Peck’s motion for leave to proceed in forma pauperis is DENIED. He shall pay the filing

10 fee or file an amended complaint addressing these deficiencies (answering these questions)
11 within 21 days of this Order or the matter will be dismissed.
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IT IS SO ORDERED.

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Dated this 19th day of September, 2016.

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A

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Ronald B. Leighton
United States District Judge

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[DKT. #S 3 AND 4] - 3