Opinion
Case No. C19-5267 BHS-TLF
05-17-2019
KEVIN DOUGLAS DONAHOE, Plaintiff, v. SEATTLE CLERK FEDERAL COURT, Defendants.
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS Noted for May 31 , 2019
This case has been referred to Magistrate Judge Theresa L. Fricke pursuant to 28 U.S.C. § 636(b)(1) and Local Rule MJR 3 and 4. This matter comes before the Court on plaintiff Kevin Donahoe's filing of an application to proceed in forma pauperis and proposed complaint. Dkt. 1, Dkt. 1-1.
On April 9, 2019, Donahoe filed this application and 42 U.S.C. § 1983 complaint against numerous defendants, including but not limited to the clerk of this court, the President of the United States, his ex-wife, and his mother. Dkt 1-1. Donahoe alleged that the United States government had violated his right to "pursue life, liberty and pursuit of [happiness]" by misinterpreting the law on treason and circumscribing the right "to make war by enemy [combatants like Donahoe]." In his proposed complaint, he requested relief from the President, in a list of amenities including gambling, stripteases, sex with female prisoners, and free orders to UberEats delivery.
The district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. 28 U.S.C. § 1915(a). However, the Court has broad discretion in denying an application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963).
A federal court may dismiss sua sponte pursuant to Fed. R. Civ. P. 12(b)(6) when the plaintiff has not stated a claim upon which relief may be granted. See Omar v. Sea Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) ("A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6) ... Such a dismissal may be made without notice where the claimant cannot possibly win relief."). See also Mallard v. United States Dist. Court, 490 U.S. 296, 307 (1989) (there is little doubt a federal court would have the power to dismiss frivolous complaint sua sponte, even in absence of an express statutory provision). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
Donahoe has failed to show that he has a viable claim against any defendant and there does not appear to be any possible basis for an amendment. For example, the clerks of court are not appropriate defendants, where the only alleged facts of wrongdoing involve a purported misapplication of federal law. Similarly, judges are generally absolutely immune from liability for judicial acts. See Mireles v. Waco, 502 U.S. 9 (1991). And Donahoe failed to file his prison trust account information to complete his IFP application, after having been informed of the deficiency on April 11, 2019. Instead, Donahoe has filed various miscellaneous addenda to his proposed complaint - with inappropriate communication directed toward the Court. Dkts. 4-10.
Therefore, the undersigned recommends that the Court deny Donahoe's motion to proceed in forma pauperis and dismiss Donahoe's complaint without leave to amend, sua sponte. The parties have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); Federal Rule of Civil Procedure (FRCP) 72(b); see also FRC P 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is directed set this matter for consideration on May 31, 2019, as noted in the caption.
Dated this 17th day of May, 2019.
/s/_________
Theresa L. Fricke
United States Magistrate Judge