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Armstrong v. Fink

United States District Court, D. Montana, Butte Division

April 10, 2014

MUIRIA ARMSTRONG, M.A. on behalf of minor son, Plaintiff,
v.
BARBARA FINK, et al., Defendants.

ORDER, and FINDINGS AND RECOMMENDATION

JEREMIAH C. LYNCH, Magistrate Judge.

I. INTRODUCTION

Plaintiff Muiria Armstrong, proceeding pro se, filed a Motion to Proceed In Forma Pauperis. Armstrong submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Because it appears she lacks sufficient funds to prosecute this action IT IS HEREBY ORDERED that Armstrong's Motion to Proceed In Forma Pauperis is GRANTED. This action may proceed without prepayment of the filing fee, and the Clerk of Court is directed to file Armstrong's lodged Complaint as of the filing date of her request to proceed in forma pauperis.

The federal statute under which leave to proceed in forma pauperis is permitted - 28 U.S.C. § 1915 - also requires the Court to conduct a preliminary screening of the allegations set forth in the litigant's pleading. The applicable provisions of section 1915(e)(2) state as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2).

The Court will review Armstrong's pleading to consider whether this action can survive dismissal under either the provisions of section 1915(e)(2), or any other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th Cir. 2005).

II. PLAINTIFF'S ALLEGATIONS

Armstrong commenced this action seeking relief with respect to the custody of her son, M.A. Most of the individuals named as Defendants are sued in their capacities as employees of the State of Montana's Department of Public Health and Human Services, Child and Family Services Division and/or Child Protective Services Division. Armstrong alleges that "in Sept" - without identifying the year - the Defendants, including employees of the Child Protective Services Division, took custody of M.A. and placed him in foster care. (Doc. 2 at 7.) Consequently, Armstrong asserts Defendants are liable for kidnaping, conspiracy, fraud, intentional infliction of emotional distress, defamation, and for violations of her rights to due process, equal protection, human dignity, and ...


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