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Kendall v. City of Boise

August 13, 2010

GARY KENDALL, PLAINTIFF,
v.
CITY OF BOISE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

REPORT, RECOMMENDATION, AND ORDER

Pending before the Court is Plaintiff's Application for Order to Proceed In Forma Pauperis (Docket No. 1). The District Court has referred this action to the undersigned for all pretrial matters. (Docket No. 9). Accordingly, having carefully reviewed the record and otherwise being fully advised, the Court enters the following Report and Recommendation.

I. BACKGROUND

Plaintiff Gary Kendall ("Plaintiff" or "Kendall") is a tenant in a HUD sponsored affordable housing project managed by the Boise City Housing and Community Development. Compl., p. 5 (Docket No. 3). Kendall filed a Complaint of Conspiratorial Deprivation of Civil Rights under Color of Law ("Complaint") against thirteen Defendants he alleges are officers or employees of the City of Boise and "hold either direct management or direct supervisory responsibility to ensure that the United States Codes and Codes of Federal Regulations applicable to the management and tenants of HUD sponsored housing projects are adhered to at all times." Compl., p. 4-6 (Docket No. 3). The named Defendants are: (1) the City of Boise; (2) Mary Elizabeth Watson, Deputy City Attorney; (3) Cary B. Colaianni, City Attorney; (4) Jim A. Birdsall, Boise City Housing and Development Manager; (5) Jeff Street, Boise City Housing Manager; (6) Tami Dodel, Boise City Housing Property Manager; (7) David H. Beiter, Mayor of Boise; (8) David Eberle, City Council President; (9) Elaine Clegg, City Councilperson; (10) Vern Bisterfeldt, City Councilperson; (11) Maryanne Jordan, City Councilperson; (12) Alan Shealy, City Councilperson; and (13) Jim Tibbs, City Councilperson. Id. at p. 1. All individual Defendants are being sued in their official and individual capacities. Id.

Kendall alleges that he "made complaint to Boise City housing management" and others about what he believes are violations of his civil rights and retaliation for his filing complaints about eviction practices of Boise City Deputy Attorney Mary Elizabeth Watson ("Watson"). Kendall asserts that those eviction practices violated federal regulations.*fn1 Id. at pp. 5-6. Kendall further alleges that Watson filed a "complaint and summons for eviction upon [Kendall] after Boise City Police officers responded to several complaints of assault by [Kendall] upon another tenant... in which the City of Boise Police investigated twice and found no evidence and no witnesses." Compl., p. 6.

Based on these facts, Kendall claims that all Defendants committed intentional deprivations of Kendall's civil rights, under color of law, and/or participated in a conspiracy to do so. Id. at 1. For relief, Kendall seeks monetary damages in the millions of dollars. Id. at pp. 21-23.

II. IN FORMA PAUPERIS PETITION

Kendall seeks to bring this suit in forma pauperis, meaning without payment of the applicable fees. See Petition to Proceed in Forma Pauperis and Affidavit of Indigency in Support (Docket No. 1). For the reasons set forth below, the Court will grant the Petition.

A. Standards

Pursuant to federal statute, "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal,... without prepayment of fees or security therefor." 28 U.S.C. § 1915(a)(1). In order to qualify for in forma pauperis ("IFP") status, the plaintiff must submit an affidavit that includes a statement of all assets he possesses and that he is unable to pay the fee required. Id.

The affidavit is sufficient if it states that the plaintiff, because of his poverty, cannot "pay or give security for the costs" and still be able to provide himself and dependants "with necessities of life." Adkins v. E.I. DuPont de Numours & Co., 335 U.S. 331, 339 (1948). The affidavit must "state the facts as to affiant's poverty with some particularity, definiteness and certainty." United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (internal quotation omitted).

B. Plaintiff Qualifies for In Forma Pauperis Status

Kendall reports his monthly income at $931.00, with corresponding monthly expenditures for rent, food, laundry, communications, vehicle, and other expenses in the amount of $931.00. Petition & Aff., p. 3 (Docket No. 2). Although Kendall listed as an asset a 1992 Dodge pick-up with an estimated value of $500.00, his debts amount to $5,809.00. Id. As required by 28 U.S.C. § 1915(a)(1), Plaintiff has attested that he is unable to pay costs or to give security in order to pursue this action. Id. at p. 2. For these reasons, Plaintiff is granted leave to proceed in forma pauperis.

III. INITIAL REVIEW REPORT

A. Standards

Upon granting in forma pauperis status, the Court must review the Complaint, including each of the claims alleged therein, 28 U.S.C. § 1915(e)(2), and dismiss the Complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief, 28 U.S.C. § 1915(e)(2)(B)(i-iii).

Generally, in conducting this review, pro se pleadings must be liberally construed and pro se plaintiffs must be given the benefit of any doubt. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Additionally, if the Complaint can be saved by amendment, Plaintiff should be notified of the Complaint's deficiencies and provided an opportunity to amend. See Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).

However, "[i]n determining whether a complaint is frivolous, a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992) (emphasis in original). The Court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id.; see also O'Loughlin v. Doe, 920 ...


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