Baker v. Department of the Air Force - Lewis McChord

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 NATHEN DWAYNE BAKER, CASE NO. C21-5201JLR 11 Plaintiff, ORDER v. DEPARTMENT OF THE AIR FORCE - LEWIS MCCHORD, Defendant.

Before the court is the Report and Recommendation filed by Magistrate Judge Mary Alice Theiler (R&R (Dkt. # 8)) and the objections thereto filed by Plaintiff Nathen Dwayne Baker (Obj. (Dkt. # 12); see also Misc. Doc. (Dkt. # 13)). Magistrate Judge Theiler recommends that the court deny Mr. Baker’s request to proceed in forma pauperis (“IFP”) and dismiss Mr. Baker’s complaint without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B). (See R&R at 3.) The court has reviewed the Report and Recommendation, Mr. Baker’s objections, the balance of the record, and the governing law. Being fully advised, the court ADOPTS Magistrate Judge Theiler’s Report and Recommendation.

3 Title 28 U.S.C. § 1915(e)(2)(B) authorizes a district court to dismiss a claim filed IFP “at any time” if it determines: (1) the action is frivolous or malicious; (2) the action fails to state a claim; or (3) the action seeks relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). Because Mr. Baker is a pro se plaintiff, the court must construe his pleadings liberally. See McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992).

9 Mr. Baker states that he is bringing his action pursuant to 42 U.S.C. § 1983. (See Obj. at 1.) Although Mr. Baker named Defendant Department of the Air Force – Lewis McChord in his complaint (see Compl. (Dkt. # 1)), he does not explain the basis of his claim against Defendant in either his objections or the additional document he filed on June 1, 2021. (See Obj.; Misc. Doc.) Thus, even construing Mr. Baker’s pleadings liberally, as it must, the court remains unable to determine the basis of Mr. Baker’s claims.

16 When a court dismisses a pro se plaintiff’s complaint, the court must give the plaintiff leave to amend unless it is absolutely clear that amendment could not cure the defects. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). Here, the court concludes that there is no reasonable basis to believe that the deficiencies identified in the Report and Recommendation can be cured by amendment. Because this action appears to be frivolous and fails to state a claim upon which relief may be granted, the court ADOPTS Magistrate Judge Theiler’s Report and Recommendation (Dkt. # 8) and DISMISSES Mr. Baker’s complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).

3 Dated this 2nd day of June, 2021.

A 6 JAMES L. ROBART United States District Judge