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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CHRISTOPHER M. MCINTYRE,

Plaintiff,

v.

ALLSTATE INSURANCE COMPANY,

Defendant.

Case No. C05-5814RBL

REPORT AND

RECOMMENDATION TO

DENY PLAINTIFF’S

I.F.P. APPLICATION

Noted for April 21, 2006

After carefully reviewing the record, the court finds and recommends as follows:

(1) On December 15, 2005, the Clerk received a complaint submitted by Mr. McIntyre, who is

proceeding pro se and is a state prisoner in custody at the Washington Correction Center in Shelton. The

complaint was submitted without the required filing fee or an application to proceed in forma pauperis.

(2) On December 21, 2005, the Clerk wrote to plaintiff informing him that his complaint had been

received but that he needed to either submit the $250.00 filing fee or an application to proceed in forma

pauperis. The Clerk instructed plaintiff to cure the noted deficiencies by not later than January 20, 2006,

(3) On January 27, the court reviewed the court record and issued an order to show cause why this

matter should not be summarily dismissed for his failure to pay the filing fee or, alternatively, his failure to

apply to proceed as a pauper. The court specifically noted that it also appeared that the complaint was also

deficient. Plaintiff was instructed to respond to the court’s order by not later than February 14, 2006, otherwise

the court would recommend dismissal of this matter as frivolous. 

Case 3:05-cv-05814-RBL Document 4 Filed 03/30/06 Page 1 of 2
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ORDER

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(4) A complaint is frivolous if "it lacks an arguable basis in law or in fact." Id. at 325. Leave to

amend is not necessary where it is clear that the deficiencies in the complaint cannot be cured by

amendment. Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984). Plaintiff's complaint should be

dismissed as frivolous for the following reasons.

In order to state a claim under 42 U.S.C. § l983, a complaint must allege that (l) the conduct complained of was committed by a person acting under color of state law and that (2) the conduct deprived a

person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt

v. Taylor, 45l U.S. 527, 535 (l98l), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). 

Here, plaintiff has named a defendant (Allstate Insurance Company) that is not a state actor, but rather a

private party or entity which does not act under color of state law. Polk County v. Dodson, 454 U.S. 312,

317-18 (1981). 

(5) To date, Mr. McIntyre has not responded to either the Clerk’s letter explaining his deficiencies with

regard to the required filing fee or the court’s order to show cause. Accordingly, the Court should dismiss this

matter as frivolous.

(6) Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P.

6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v.

Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to

set the matter for consideration on April 21, 2006, as noted in the caption.

DATED this 30th day of March, 2006.

/s/ J. Kelley Arnold J. Kelley Arnold

United States Magistrate Judge 

Case 3:05-cv-05814-RBL Document 4 Filed 03/30/06 Page 2 of 2