Nunnery v. Kitsap County et al

Filing 4

ORDER denying 2 Motion for Leave to Proceed in forma pauperis by Judge Benjamin H. Settle and remanding case. (TG; cc mailed to plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ALICE NUNNERY,

CASE NO. C17-5225 BHS

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Plaintiff,
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v.
KITSAP COUNTY, et al.,

ORDER DENYING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS AND
REMANDING

Defendants.

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This matter comes before the Court on Plaintiff Alice Nunnery’s (“Nunnery”)

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notice of removal (Dkt. 1), complaint (Dkt. 1-1), and motion to proceed in forma

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pauperis (Dkt. 2).

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On March 27, 2017, Nunnery removed her complaint from Kitsap County

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Superior Court for the State of Washington asserting that the Court has jurisdiction under

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28 U.S.C. 1331 because a federal question appears on the face of the complaint. Dkt. 1.

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Nunnery also requests leave to proceed in forma pauperis. Dkt. 2.

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The district court may permit indigent litigants to proceed in forma pauperis upon

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completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a); W.D. Wash.

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Local Rules LCR 3(b). However, the “privilege of pleading in forma pauperis . . . in
ORDER DENYING PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS AND
REMANDING - 1

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civil actions for damages should be allowed only in exceptional circumstances.” Wilborn

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v. Escalderon, 789 F.2d 1328 (9th Cir. 1986). The court has broad discretion in denying

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an application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir.

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1963), cert. denied 375 U.S. 845 (1963)

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In this case, the Court denies the motion to proceed in forma pauperis and

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remands the matter sua sponte. The rules of removal provide that “any civil action

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brought in a State court of which the district courts of the United States have original

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jurisdiction, may be removed by the defendant or the defendants . . . .” 28 U.S.C. §

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1441(a). “No right exists in favor of a person who, as plaintiff, has filed an action in the

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state court, to cause the removal of such action to a federal court.” In re Walker, 375

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F.2d 678, 678 (9th Cir. 1967). Nunnery, who filed this action in state court, does not

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have a right to remove this action to federal court. Moreover, even if she possessed a

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right to remove, the complaint fails to state a federal cause of action on its face. Thus,

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the Court DENIES Nunnery’s motion to proceed in forma pauperis because removal is

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improper and REMANDS the matter to Kitsap County Superior Court. The Clerk shall

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remand this matter and close this case.

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IT IS SO ORDERED.

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Dated this 30th day of March, 2017.

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A

BENJAMIN H. SETTLE
United States District Judge

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ORDER DENYING PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS AND
REMANDING - 2