Newkirk v. Fishback

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Apr 07, 2023 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON CARLA NEWKIRK, on her own behalf and behalf of her minor child NO: 2:23-CV-0093-TOR JD, ORDER DISMISSING CASE 9 Plaintiff, WITHOUT PREJUDICE 10 v. ROBERT FISHBACK; JOHN GUY; RHASHA NEWKIRK; IRIS NEWKIRK; JESSICA JORDAN; ERIC JORDAN; JAMES MCGARY; and DOES 1-100, 14 Defendants.

16 BEFORE THE COURT is Plaintiff’s pro se Complaint in forma pauperis.

17 Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), “[n]otwithstanding 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 the action or appeal fails to state a claim upon which relief may be granted.”

1 A complaint fails to state a claim upon which relief may be granted if it lacks a cognizable legal theory or lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

4 Plaintiff’s Complaint lacks sufficient facts to support a cognizable legal theory.

5 Accordingly, Plaintiff’s Complaint must be dismissed without prejudice.

6 Moreover, this District Court in the Eastern District of Washington State does not have jurisdiction nor venue over this cause of action or the parties.

8 Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” The good faith standard is an objective one, and good faith is demonstrated when an individual “seeks appellate review of any issue not frivolous.” See Coppedge v. United States, 369 U.S. 438, 445 (1962). For purposes of 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

15 The Court finds that any appeal of this Order would not be taken in good faith and would lack any arguable basis in law or fact. Accordingly, the Court hereby revokes Plaintiff’s in forma pauperis status. If Plaintiff seeks to pursue an appeal, she must pay the requisite filing fee.

19 ACCORDINGLY, IT IS HEREBY ORDERED: 20 1. Plaintiff’s Complaint (ECF No. 1) is DISMISSED without prejudice. l 2. Plaintiff's in forma pauperis status is hereby REVOKED.

2 The District Court Executive is hereby directed to enter this Order, furnish a 3|| copy to Plaintiff, and CLOSE the file.

4 DATED April 7, 2023. | thaw 0%; 6 — THOMAS C Je n> United States District Judge