Ashelman v. McDurment

Full title: PERRY T. ASHELMAN, Plaintiff, v. MCDURMENT, Defendant.

Court: UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Date published: Mar 4, 2020

CASE NO. 20-133-RSM (W.D. Wash. Mar. 4, 2020)

Opinion

CASE NO. 20-133-RSM

03-04-2020

PERRY T. ASHELMAN, Plaintiff, v. MCDURMENT, Defendant.

BRIAN A. TSUCHIDA Chief United States Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff, Perry T. Ashelman, is confined at the Monroe Correctional Complex. On January 27, 2020 he submitted a pleading using a Washington State District Court form entitled "Notice of Small Claim." Dkt. 1. Because plaintiff did not pay the filing fee or submit a sufficient application to proceed in forma pauperis, the clerk provided plaintiff a letter informing him he must pay the filing fee or submit an application to proceed in forma pauperis by February 28, 2020, or the case may be dismissed. Dkt. 3.

On February 3, 2020, plaintiff filed a letter that states: "I never filed a 1983 Civil Rights Complaint. I filed a Small Claims form. I am moving forward in a small claims form not a 1983 civil rights complaint." Dkt. 4. Plaintiff did not submit a completed application to proceed in forma pauperis or pay the filing fee. Rather plaintiff attached to the letter a form "Notice of Small Claim" seeking $2,275.00 based upon the following allegations:

The amount owed is for perpsoly depriving me of recreation, hygenic time, phone time I came to the 4th floor hospital wing from Sep 2019 to October 2019, and from now to Jan "presently" per state and fed law I am aloud 1 hour per day of recreation time and 3 days out of a week to take a shower the Sgt (Mr. Durment) is the officer who runes this floor and is responsible for it Ive asked this officer for my time out of my all and his response is that's not my problem and then just walks away this officer is perposly depriving me of my right and is doing it as a form of crule and unusual punishment and is also a for of deprivation every person on this floor recives time out of there cell but me and whenever I try to address my problems with this Sgt he just walks away this person is violating stte and federal law and doc policy there is o reason why I cannot get any time out of my cell but every other person can I want 2500 per every day he violated my rights to 1 hour of req (And I already tried setaing this threw exaction of grivances

See Dkt. 4.

DISCUSSION

In order to commence a civil action in this Court a plaintiff must either pay the filing fee or be granted leave to proceed in forma pauperis. See Local Civil Rule 2. The Clerk of Court provided plaintiff a letter that informed him of these requirements and which also advised him if he failed to pay the filing fee or submit a sufficient application to proceed in forma pauperis the case may be dismissed. In response to the Clerk's letter, plaintiff stated he had filed a "small claims form," not a 1983 action, has not paid the filing fee, and has not submitted an application to proceed in forma pauperis.

Plaintiff's characterization of his civil action as a "small claims" matter does not relieve him of his obligation to either pay the filing fee or seek permission to proceed in forma pauperis. Because plaintiff has done neither, the Court recommends the case be dismissed without prejudice.

Plaintiff's characterization of his pleading as a "small claims" matter and "not a 1983 civil rights complaint" also indicates his claim has been filed in the wrong court and should be dismissed. Washington State allows individuals to bring small claims actions in State District Courts, not United States District Courts. Hence, if plaintiff seeks to avail himself of the remedies available through a Washington State District Court small claims proceeding, he should file his action in the appropriate State District Court.

And finally, plaintiff's assertion he is not filing a 1983 claim divests this Court of jurisdiction. If plaintiff's action does not arise under the United States Constitution or a federal statute, this Court lacks jurisdiction. See e.g. 28 U.S.C. § 1331 (Federal Question).

For the foregoing reasons the Court recommends dismissing this matter without prejudice.

OBJECTIONS AND APPEAL

This Report and Recommendation is not an appealable order. Therefore plaintiff should not file a notice of appeal for review in the Court of Appeals for the Ninth Circuit until the assigned District Judge enters a judgment in the case. Any objection to this report is due March 18, 2020. The Clerk shall note the matter for Friday March 20, 2020, as ready for the District Judge's consideration. The failure to timely object may affect the right to appeal.

DATED this 4^th day of March, 2020.

/s/_________

BRIAN A. TSUCHIDA

Chief United States Magistrate Judge