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Shipley v. Homme

United States District Court, D. Montana, Billings Division

May 22, 2015

ROBERT SHIPLEY, Plaintiff.
v.
AL HOMME, Defendant.

FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CAROLYN S. OSTBY, Magistrate Judge.

Pending is Plaintiff Robert Shipley's Motion for Leave to Proceed in Forma Pauperis ( ECF 1 ), proposed Complaint ( ECF 2 ), Supplement ( ECF 5 ), and Motion to Appoint Counsel ( ECF 6 ).

I. MOTION TO PROCEED IN FORMA PAUPERIS

The 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 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).

An affidavit of indigency is sufficient if it states a person cannot pay or provide security for court costs and still provide himself and any dependents with the necessities of life. Rowland v. Cal. Men's Colony, 506 U.S. 194, 203 (1993) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). Mr. Shipley submitted the form Motion to Proceed in Forma Pauperis showing that he receives $2, 907.00 per month and has monthly expenses in the amount of $2, 025.00. ECF 1. Thus, he has not made a sufficient showing that he cannot pay the filing fee and still provide for himself with the necessities of life.

While generally a litigant would be given an opportunity to pay the filing fee, the Court deems that unnecessary because "a district 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'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

z"A document filed pro se is to be liberally construed, ' and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007); Cf. Fed.R.Civ.P. 8(f) ("All pleadings shall be so construed as to do substantial justice"). For the reasons explained below, Mr. Shipley's claims fail as a matter of law.

Therefore, the motion to proceed in forma pauperis should be denied.

II. STATEMENT OF CASE

A. Parties

Pro se Plaintiff Robert Shipley is a citizen of Montana residing in Miles City, Montana. The only named Defendant is Al Homme, a city judge in Miles City, Montana. ECF 2 at 1, ¶¶ 1, 2.

B. Factual Background

Shipley alleges Judge Homme recused himself from a misdemeanor case in August 2013 but then "reneged" on the recusal and presided over Shipley's minor traffic infraction jury trial in December 2013. ECF 2 at 1, ¶ 2. He alleges Judge Homme illegally jailed him twice by refusing $510.00 as bail for a minor misdemeanor on May 22, 2014. He alleges Judge Homme ...


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