United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon United States District Judge
Kip Pierce filed pro se claims against Defendant
Lisa Heiple and several Doe Defendants. ECF 1. Plaintiff
alleges claims for a violation of 42 U.S.C. § 1983,
libel, and defamation per se. Plaintiff seeks
declaratory and injunctive relief, as well as money damages.
Plaintiff also filed an application to proceed in forma
pauperis. ECF 2. The Court grants Plaintiff's
application to proceed in forma pauperis, but finds
that even under the liberal pleading standards afforded a
pro se plaintiff, Plaintiff fails state a claim for
relief and further finds that the Court must abstain from
considering most of Plaintiff's claims under the
complaint filed in forma pauperis may be dismissed
at any time, including before service of process, if the
Court determines that the action is “frivolous or
malicious” or the complaint “fails to state a
claim upon which relief can be granted.” 28 U.S.C.
§ 1915(e)(2); see also Neitzke v. Williams, 490
U.S. 319, 324 (1989) (discussing an earlier version of the
statute); Jackson v. Arizona, 885 F.2d 639, 640 (9th
Cir. 1989). A complaint is frivolous “where it lacks an
arguable basis either in law or in fact.”
Neitzke, 490 U.S. at 325; Lopez v. Dep't of
Health Servs., 939 F.2d 881, 882 (9th Cir. 1991);
Jackson, 885 F.2d at 640. The term “frivolous,
” when used to describe a complaint, “embraces
not only the inarguable legal conclusion, but also the
fanciful factual allegation.” Neitzke, 490
U.S. at 325.
complaint fails to state a claim when there is no cognizable
legal theory or the factual allegations are insufficient to
support a claim for relief. Shroyer v. New Cingular
Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.
2010). In evaluating the sufficiency of a complaint's
factual allegations, the court must accept as true all
well-pleaded material facts alleged in the complaint and draw
all reasonable inferences in favor of the plaintiff.
Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140
(9th Cir. 2012); Daniels-Hall v. Nat'l Educ.
Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). But to be
entitled to a presumption of truth, the complaint must do
more than simply allege legal conclusions couched as factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). The plaintiff “may not simply recite the
elements of a cause of action, but must [provide] sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). The underlying factual allegations must
“plausibly suggest an entitlement to
relief.” Id. (emphasis added). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
se plaintiffs receive special dispensation. A court must
liberally construe the filings of a pro se plaintiff
and afford the plaintiff the benefit of any reasonable doubt.
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
“A pro se litigant must be given leave to
amend his or her complaint unless it is absolutely clear that
the deficiencies of the complaint could not be cured by
amendment.” Karim-Panahi v. Los Angeles Police
Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citation
and internal quotation marks omitted). But even a pro
se plaintiff must offer more than “‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action.'” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
March 14, 2012, Ms. Heiple obtained a lifetime stalking
protective order against Plaintiff in an Oregon state
court. Plaintiff alleges that he was told by the
state court that he was not required to attend the hearing by
telephone or in person and he relied on that
representation.As a result, Plaintiff alleges, in a
conclusory assertion, that he was not allowed to participate
in the legal proceedings, testify, or cross examine Ms.
Heiple, and that he was not otherwise given due process.
Plaintiff requests an evidentiary hearing to demonstrate
whether the stalking protective order was wrongfully issued
and further requests that this Court declare the stalking
protective order void, vacate the order, and enjoin its
further alleges that Ms. Heiple posted on her Facebook page
that “he claims to be homeless and live on the
street” and bragged about obtaining “a permanent
stalking order for life.” Plaintiff alleges that
persons reading this post would understand that Ms. Heiple
was referencing Plaintiff and that this post constitutes
libel and defamation per se.
Section 1983 Claim against Ms. Heiple
alleges a claim against Ms. Heiple under 42 U.S.C. §
1983. To state a claim for liability under Section 1983,
“‘a plaintiff must show both (1) deprivation of a
right secured by the Constitution and laws of the United
States, and (2) that the deprivation was committed by a
person acting under color of state law.'” Tsao
v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir.
2012) (quoting Chudacoff v. Univ. Med. Ctr. of S.
Nev., 649 F.3d 1143, 1149 (9th Cir. 2011)). “[T]he
under-color-of-state-law element of § 1983 excludes from
its reach ‘merely private conduct, no matter how
discriminatory or wrongful . . . .'” Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)
(quoting Blum v. Yaretsky, 457 U.S. 991, 1002
private individual may, under certain circumstances, act
under the color of state law. The Ninth Circuit recognizes
“at least four different criteria, or tests, used to
identify state action: ‘(1) public function; (2) joint
action; (3) governmental compulsion or coercion; and (4)
governmental nexus.'” Kirtley v. Rainey,
326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Sutton v.
Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36
(9th Cir. ...