Fischer v. State of Washington Department of Corrections

Opinion

UNITED STATES DISTRICT COURT AT TACOMA JAY FRANK FISHER, CASE NO. C24-5356 BHS Plaintiff, ORDER v. Defendant.

THIS MATTER is before the Court on its own 28 U.S.C. § 1915(e)(2)(B) motion. Magistrate Judge Fricke has granted pro se plaintiff Jay Frank Fisher in forma pauperis status based on her indigency, but did not screen Fisher’s complaint. Dkt. 3. The complaint is handwritten and difficult to read. She alleges that she is a male to female pre-operative transexual who has been “on HRT” since 2006. She asserts an Eighth Amendment claim, alleging defendant Washington State Department of Corrections (DOC) subjected her to “a multitude of unreasonable sanctions and downright illegal prosecution and confinement circumstances.” Dkt. 4 at 5. She seeks $35,000,000 plus $2,000,000 for prolonged suffering, the vacation of the remainder of her sentence, and restoration of her right to bear arms. Id. 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). The standard governing in forma pauperis eligibility under 28 U.S.C. § 1915(a)(1) is “unable to pay such fees or give security therefor.” A person is eligible if they are unable to pay the costs of filing and still provide the necessities of life. See Rowland v. Cal. Men's Colony, Unit

II Men’s Advisory Council, 506 U.S. 194, 203 (1993) (internal quotations omitted). Judge Fricke has already determined that Fisher cannot afford the filing fee. Dkt. 3. In addition, however, 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 has 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Ordinarily, the Court will permit pro se litigants an opportunity to amend their complaint to state a plausible claim. See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.”). Fisher has not pled a plausible claim. She has not alleged a single fact in support of her conclusory claim that the DOC violated her constitutional rights. Fisher is

ORDERED to SHOW CAUSE why the court should not revoke her in forma pauperis status and dismiss this action for failure to state a plausible claim. She may do so by filing an amended complaint including factual, “who what when where why and how,” allegations stating a plausible claim as described above. She should do so within 21 days. If she does not, the case will be dismissed without further notice.

Dated this 29th day of July, 2024. A BENJAMIN H. SETTLE United States District Judge