Opinion
CASE NO. C17-6075 BHS
01-03-2018
MISS JAY FRANK FISCHER, Plaintiff, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT WITHOUT PREJUDICE, AND GRANTING PLAINTIFF LEAVE TO AMEND
This matter comes before the Court on Plaintiff Miss Jay Frank Fischer's ("Fischer") motion to proceed in forma pauperis (Dkt. 1) and proposed complaint (Dkt. 1-1).
On December 28, 2017, Fischer filed the instant motion and proposed complaint. Id. Fischer asserts a claim under Title II of the Americans with Disabilities Act of 1990 (the "ADA") against Defendant Washington State Department of Corrections ("DOC") requesting that the Court vacate Fischer's current DOC community custody term. Dkt. 1-1 at 4. Fischer also asserts a claim against community corrections officer Bryan Peik for stealing Fischer's wallet. Id.
The 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); W.D. Wash. Local Rules LCR 3(b). However, the "privilege of pleading in forma pauperis . . . in civil actions for damages should be allowed only in exceptional circumstances." Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986). The court has broad discretion in denying an application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963).
Even if Fischer establishes indigency, the Court "may 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. Bank & Tr., 821 F.2d 1368, 1370 (9th Cir. 1987). The Court, however, must allow Fischer "an opportunity to amend [the] complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984) (quoting Stanger v. City of Santa Cruz, 653 F.2d 1257, 1257-58 (9th Cir. 1980)).
In this case, the Court finds that Fischer has failed to establish exceptional circumstances or assert meritorious claims. The Court is unaware of any authority under the ADA that allows the Court to vacate a state-imposed community custody sentence. Moreover, without the federal claim, the Court does not have jurisdiction over Fischer's claim against officer Peik. Therefore, the Court DENIES the motion to proceed in forma pauperis, DISMISSES the complaint without prejudice, and GRANTS Fischer leave to amend. Fischer shall file an amended complaint no later than February 2, 2018. Failure to file an amended complaint or otherwise respond will result in DISMISSAL.
IT IS SO ORDERED.
Dated this 3rd day of January, 2018.
/s/_________
BENJAMIN H. SETTLE
United States District Judge