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Cole v. State

United States District Court, D. Montana, Missoula Division

April 27, 2017

ELIZABETH COLE, Plaintiff,
v.
STATE OF MONTANA, HON. KAREN TOWNSEND, and JANE COWLEY, Defendants.

          FINDINGS AND RECOMMENDATION

          Jeremiah C. Lynch, United States Magistrate Judge

         Before the Court is Plaintiff Elizabeth Cole's motion, under 28 U.S.C. § 1915(a)(1), requesting leave to proceed with this action without paying the filing fee. Cole is appearing pro se.

         Cole 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 Cole's motion is GRANTED. This action may proceed without prepayment of the filing fee, and the Clerk of Court is directed to file Cole's lodged pleadings 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 Cole's pleading to consider whether this action can survive dismissal under 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).

         I. Background

         In her amended complaint Cole explains that in November 2016 State District Court Judge Karen Townsend issued a temporary restraining order against her based upon a petition filed in state court by Jane Cowley. Cole complains the order unlawfully restrains her freedom of travel, interferes with her financial livelihood, and allegedly violates various fundamental rights protected under the United States Constitution. She implicitly invokes remedies ...


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