Trevino et al v. Quigley et al

Filing 15

ORDER denying Plaintiffs' 9 Motion for Preliminary Injunction; denying Plaintiffs' 10 Second Motion for Reconsideration; denying Plaintiffs' 11 Motion for interlocutory review. Plaintiffs are ORDERED to show cause by 8/17/2018, why the court should not dismiss the case without prejudice for Plaintiffs' failure to serve Defendants. Signed by Judge James L. Robart. (PM) cc: Plaintiffs via fist class mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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FRANCIS ANTHONY TREVINO,
et al.,

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CASE NO. C18-0487JLR
ORDER DENYING MOTIONS

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Plaintiffs,
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v.

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KEVIN W. QUIGLEY, et al.,

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Defendants.

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I.

INTRODUCTION

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Before the court is pro se Plaintiffs Francis Anthony Trevino and Mark Newton
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Kelly’s (collectively, “Plaintiffs”) motion for preliminary and permanent injunctive relief
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(Inj. Mot. (Dkt. # 9)), second motion for reconsideration (2d MFR (Dkt. # 10)), and
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motion to certify for interlocutory appeal (IA Mot. (Dkt. # 11)). Defendants Kevin W.
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ORDER - 1

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Quigley and Dorothy Sawyer (collectively, “Defendants”) have not responded.1 The

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court has considered the motions, the relevant portions of the record, and the applicable

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law. Being fully advised,2 the court denies the motions and orders Plaintiffs to show

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cause why this case should not be dismissed for failure to comply with Federal Rule of

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Civil Procedure 4(m).

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II.

BACKGROUND

Although their complaint is difficult to follow, it appears that Plaintiffs bring suit

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to challenge their confinement and Washington State’s procedures for evaluating civil

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competency and commitment. (See Compl. (Dkt. # 1) at 12 (stating that over 190 days

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have elapsed and citing Washington’s statute on competency examinations); see also id.

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at 15-16 (citing RCW ch. 10.77); id. at 10 (citing Doe v. Gallinot, 657 F.2d 1022 (9th Cir.

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1981), which discusses the constitutionally protected liberty interest of a person who has

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been involuntarily committed).) Mr. Trevino alleges that he was arrested on August 6,

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2016. (Id. at 7.) He further alleges a “monopoly” between Mr. Quigley and Ms.

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Sawyer—allegedly the heads of the Washington State Department of Social and Health

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Services and Eastern State Hospital, respectively—related to his speedy trial clock. (Id.)

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Mr. Kelly alleges that he was arrested on December 3, 1995, and arraigned on January 9,

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1996. (Id. at 8.) He contends that attorney John Nollette and Spokane County Superior

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There is no indication that Plaintiffs have served Defendants with summons and a copy
of the complaint. (See Dkt.); see also Fed. R. Civ. P. 4; infra at 7, 9-10.
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Plaintiffs do not request oral argument (see Inj. Mot. at 1; 2d MFR at 1; IA Mot. at 1),
and the court concludes that oral argument would not be helpful to its disposition of the motions,
see Local Rules W.D. Wash. LCR 7(b)(4).

ORDER - 2

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Court Judge James M. Murphy appointed a “sanity commission” and a “15[-]day stay.”3

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(Id. (omitting internal punctuation).) He further alleges that he was “forgotten” and

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“held” beyond 60 days. (Id.) Plaintiffs are currently imprisoned at Coyote Ridge

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Correctional Center. (See id. at 1.) As exhibits to their complaint, Plaintiffs attach

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various filings from Spokane County Superior Court. (See id., Ex. 1 (Dkt. # 1-2).) One

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of the exhibits reveals that Mr. Trevino was recommended for inpatient evaluation at

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Eastern State Hospital on December 14, 2016, and that on December 23, 2016, he was

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deemed competent to stand trial. (See id. at 17, 20.)

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Under the “Statement of Claim” section, Plaintiffs reference “‘[t]he “Birth” of

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Trueblood (# C14-1178MJP)’; Antitrust Violation(s); Profit in ‘Predatory’ Interest(s)’

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‘Monopoly’ of RCW 10.77 & CrR3.3(e)(1); Merger Thru [sic] Barriers Formed ‘Distinct

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Group’ Excluded Period(s) . . . ‘Qui Tam’ Action.” (Id. at 4 (internal brackets omitted

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and internal punctuation altered); see also id. at 3 (raising the First Amendment right to

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petition the government, qui tam, the Sherman and Clayton Acts, 42 U.S.C. § 1983; 28

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U.S.C. §§ 1343, 2201, 2202; Federal Rules of Civil Procedure 57 and 60(b); and

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Washington State Rules of Criminal Procedure).) They ask the court whether Trueblood

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v. Washington State Department of Social & Health Services, No. C14-1178MJP (W.D.

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Wash. 2014), a case or controversy under Article III of the United States Constitution, or

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an “actual controversy” under the Declaratory Judgment Act, 28 U.S.C. § 2201, “make[s]

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a distinct sep[a]ration of economic resources, economic interests, and intra-corporate

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The court dismissed Judge Murphy on May 8, 2018. See infra at 4.

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conspiracy doctrine” and whether “this [is] a matter of usurped authority.” (Id. at 8

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(internal punctuation and capitalization omitted).)

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Liberally construed, the court discerns that Plaintiffs allege constitutional

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violations related to their confinement and Washington State’s procedures for civil

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competency evaluation and commitment, as addressed in Trueblood, 2016 WL 4268933,

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at *1 (W.D. Wash. Aug. 15, 2016) (requiring Washington State to complete in-jail

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competency evaluations within 14 days of a court order).4 (See, e.g., Compl., Ex. 1 at

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60.) They seek relief from judgment under Rule 60(b), treble damages, qui tam awards,

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$90 million for Mr. Trevino, and $270 million for Mr. Kelly. (Id. at 30.)

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On May 8, 2018, the court dismissed Plaintiffs’ claims against Defendants

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Spokane County Superior Court Judge Gregory D. Sypolt; Spokane County Superior

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Court Judge James M. Murphy; Washington State Supreme Court Clerk Erin L. Lennon;

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and Washington State Supreme Court Clerk Susan L. Carlson (collectively, “Judicial

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Defendants”). (5/8/18 Order (Dkt. # 6) at 3.) The court concluded that it lacked subject

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matter jurisdiction over Judicial Defendants because Plaintiffs’ allegations showed that

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Judicial Defendants were entitled to judicial or quasi-judicial immunity. (Id. at 2-3.) On

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June 11, 2018, Plaintiffs moved for reconsideration, which the court denied for two

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reasons: (1) the motion was untimely, and (2) Plaintiffs failed to show manifest error in

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Although Plaintiffs also cite other law, such as antitrust statutes and the qui tam statute,
they do so to allege wrongful conduct in relationship to criminal competency matters. (See, e.g.,
Compl. at 18-19.) For that reason, it does not appear that Plaintiffs actually intend to bring an
antitrust or qui tam action.

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the court’s prior ruling or any new facts or legal authority that Plaintiffs could not have

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brought to the court’s attention earlier. (6/15/18 Order at 3.)

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On June 25, 2018, Plaintiffs moved for both a preliminary injunction and a

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permanent injunction. (See Inj. Mot.) Plaintiffs also filed a “supplement” in which they

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contest the court’s June 15, 2018, order denying reconsideration of its decision to dismiss

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Judicial Defendants. (See 2d MFR at 2-3; see also 6/15/18 Order (Dkt. # 8) at 2-3

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(denying first motion for reconsideration).) The court construes the supplement as a

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second motion for reconsideration. (See generally 2d MFR.) Finally, Plaintiffs request

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leave to appeal the dismissal of Judicial Defendants, which the court construes as a

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motion for interlocutory appeal. (See IA Mot. at 1.) No defendant has yet appeared or

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responded, and there is no indication that Plaintiffs have served Defendants. (See Dkt.)

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The court now addresses Plaintiffs’ motions.

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III.
A.

ANALYSIS

Second Motion for Reconsideration
Plaintiffs ask the court to reconsider its decision denying Plaintiffs’ previous

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reconsideration motion. (See 2d MFR at 2.) Plaintiffs argue that the first motion was

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timely because they completed a postage transfer on May 21, 2018, and their first motion

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was mailed on May 25, 2018. (Id. at 2; see also id. at 4 (attaching the postage transfer as

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an exhibit).) In making that argument, Plaintiffs appear to invoke the prison mailbox

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rule. See Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) (stating that “[a]

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pro se prisoner’s notice of appeal from the denial of a federal habeas petition is filed” at

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the time the prisoner delivers the notice to “prison authorities for forwarding to the court

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clerk”); Adler v. McDonald, No. 2:15-cv-0789 TLN CKD P, 2016 WL 2346980, at *2

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(E.D. Cal. May 4, 2016) (“Under the mailbox rule, a prisoner’s pleading is deemed filed

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when he hands it over to prison authorities for mailing to the relevant court.” (internal

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quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988))).

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Although Plaintiffs turned over their motion to prison authorities for filing on May

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21, 2018 (see 2d MFR at 4), the court nevertheless also denied the motion because

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Plaintiffs failed to demonstrate manifest error or any new facts or legal authority that they

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could not have brought to the court’s attention before (see 6/15/18 Order at 2). Plaintiffs’

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current submission does not change that conclusion. (See 2d MFR at 2 (raising only the

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timeliness issue).) Thus, the court denies Plaintiffs’ second motion for reconsideration

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and turns next to Plaintiffs’ motion for certification of an interlocutory appeal.

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B.

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Interlocutory Appeal
Plaintiffs move for leave to appeal the dismissal of Judicial Defendants. (See IA

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Mot. at 1; Memo. (Dkt. # 12) (providing additional argument).) Their motion largely

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repeats the same arguments and case law found in their complaint and other motions.

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(Compare IA Mot., and Memo., with Compl., and 2d MFR, and Inj. Mot.) Plaintiffs also

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attach a letter from the Clerk for the Western District, which sent blank summons forms.

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(IA Mot. at 3.)

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28 U.S.C. § 1292(b), which governs interlocutory appeals, provides:

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When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves
a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so state

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in writing in such order. The Court of Appeals which would have jurisdiction
of an appeal of such action may thereupon, in its discretion, permit an appeal
to be taken from such order, if application is made to it within ten days after
the entry of the order: Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court unless the district
judge or the Court of Appeals or a judge thereof shall so order.

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28 U.S.C. § 1292(b). The proponent must demonstrate that “exceptional circumstances
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justify a departure from the basic policy of postponing appellate review until after the
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entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).
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The decision whether to certify a question for interlocutory appeal is within the district
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court’s discretion. See Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 46-47 (1995).
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The court finds that there is no “controlling question of law as to which there is a
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substantial ground for difference of opinion.” See 28 U.S.C. 1292(b). The question is
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not purely one of law, see Borelli v. Black Diamond Aggregates, Inc.,
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No. 2:14-cv-02093-KJM-KJN, 2018 WL 1518678, at *2 (E.D. Cal. Mar. 28, 2018), and
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based on the facts alleged, there is no substantial ground for differing opinions about
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whether Plaintiffs’ claims against Judicial Defendants are barred by judicial or
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quasi-judicial immunity, id., at *3. It is simply not enough that Plaintiffs “strongly
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disagree[] with the court’s decision.” See id. Moreover, certification of that issue would
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not “materially advance the ultimate termination of the litigation.” See 28 U.S.C.
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§ 1292(b). For those reasons, the court denies Plaintiffs’ motion to certify the question of
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judicial and quasi-judicial immunity for interlocutory review.
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C.

Injunctive Relief
The court now addresses Plaintiffs’ request for preliminary and permanent

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injunctive relief. (See Inj. Mot.)

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1. Legal Standard

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“A preliminary injunction is ‘an extraordinary remedy that may only be awarded

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upon a clear showing that the plaintiff is entitled to such relief.’” Feldman v. Ariz. Sec’y

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of State’s Office, 843 F.3d 366, 375 (9th Cir. 2016) (quoting Winter v. Nat. Res. Def.

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Council, 555 U.S. 7, 22 (2008)). To obtain relief, “[a] plaintiff . . . must establish that he

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is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

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absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Winter, 555 U.S. at 20. A plaintiff must make a

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clear showing as to each of these elements.5 Feldman, 843 F.3d at 375. “In cases where

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the movant seeks to alter the status quo, [a] preliminary injunction is disfavored and a

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higher level of scrutiny must apply.” Welchen v. Harris, No. 2:16-cv-00185-TLN-KJN,

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2016 WL 430517, at *2 (E.D. Cal. Feb. 4, 2016).

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To obtain permanent injunctive relief, a plaintiff must demonstrate (1) actual

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success on the merits; (2) that he has suffered an irreparable injury; (3) that remedies

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available at law are inadequate; (4) that the balance of hardships justifies a remedy in

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In the Ninth Circuit, “‘if a plaintiff can only show that there are ‘serious questions going
to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary
injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the
other two Winter factors are satisfied.” Feldman, 843 F.3d at 375 (quoting Shell Offshore, Inc. v.
Greenpeace, Inc., 709 F.3d 1282, 1291 (9th Cir. 2013)).
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equity; and (5) that the public interest would not be disserved by a permanent injunction.

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Indep. Training & Apprenticeship Program v. Cal. Dep’t of Indus. Relations, 730 F.3d

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1024, 1032 (9th Cir. 2013); cf. Amoco Prod. Co. v. Village of Gambell, AK, 480 U.S.

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531, 546 n.12 (1987) (“The standard for a preliminary injunction is essentially the same

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as for a permanent injunction with the exception that the plaintiff must show a likelihood

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of success on the merits rather than actual success.”).

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2. Plaintiffs’ Motion

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As with their complaint, Plaintiffs’ motion for injunctive relief is difficult to

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understand. They first state that the Honorable Marsha J. Pechman “ruled against the

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‘Collective Defendants’” in Trueblood, and held the defendants in that case in contempt

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of court. (Inj. Mot. at 2.) They then argue that the “new ‘codes’” in that case “preclude

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herewith the ‘goal’ of protecting the ‘Plaintiff(s), et al[.’s’] constitutional right to be free

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of unconstitutional seizure(s).” (Id. at 3 (capitalization and underlining omitted).)

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Finally, Plaintiffs argue that Defendants “permit[] ‘Welfare State Capitalism’ thru [sic]

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‘Monopolization’ of intra-corporate conspiracy: contracts Eastern State Hosp[ital]” and

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that Plaintiffs have proved “‘Fraud’ beyond ordinary call.” (Id. at 4 (internal brackets

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omitted).) They cite two cases—Weeks v. United States, 232 U.S. 383 (1914), and

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Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932, -- U.S. --- (2015)—and invoke the

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Sherman Act, 15 U.S.C. § 1, in support of their motion. (Id. at 3, 5.) They seek a

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preliminary and permanent injunction to enjoin “state prosecution” against them. (Id. at

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5.)

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ORDER - 9

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As an initial matter, the court cannot grant the relief Plaintiffs seek. First, there is

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no indication that Plaintiffs have served Defendants, and the court therefore lacks

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personal jurisdiction. See Zepeda v. United States Immigration & Naturalization Serv.,

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753 F.2d 719, 727 (9th Cir. 1995) (stating that a court may only enjoin a party over

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whom it has personal jurisdiction); Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (“A

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federal court is without personal jurisdiction over a defendant unless the defendant has

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been served in accordance with [Federal Rule of Civil Procedure] 4.”); Joli Grace, LLC

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v. Country Visions, Inc., No. 2:16-1138 WBS EFB, 2016 WL 6996643, at *10 (E.D. Cal.

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Nov. 30, 2016) (“A district court has no authority to grant relief in the form of a

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preliminary injunction where it has no personal jurisdiction over the parties.”). Second,

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the Younger abstention doctrine forbids the court from “enjoin[ing] pending state court

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proceedings”—the relief Plaintiffs seek.6 See Younger v. Harris, 401 U.S. 37, 41 (1971);

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(Inj. Mot. at 5 (seeking an injunction of “state prosecution”)); see also

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AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1150 (9th Cir. 2007) (“The goal of

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Younger abstention is to avoid federal court interference with uniquely state interests such

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as preservation of these states’ peculiar statutes, schemes, and procedures.”).

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In any event, Plaintiffs have not met the stringent standard for an injunction. See

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Feldman, 843 F.3d at 375. They make no argument on the likelihood of success on their

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claims, and based on the facts and claims alleged, the court cannot independently identify

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Although it is not clear that Plaintiffs’ criminal proceedings are currently pending, the
relief Plaintiffs request—an injunction to stop “state prosecution” against them—makes little
sense if there are no pending proceedings. (See Inj. Mot. at 5.) If they instead seek to enjoin
future prosecution, the court also cannot grant relief based on the record before it.
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ORDER - 10

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such a likelihood.7 See McDermott v. Potter, No. C09-0776RSL, 2009 WL 1608461, at

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*1 (W.D. Wash. June 5, 2009) (denying a motion for a temporary restraining order

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because the pro se plaintiff “provided nothing either in his motions or his complaint that

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would indicate he is likely to succeed on the merits of his claim”). Moreover, they

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present no evidence to support their motion. See Beaver-Jackson v. Ocwen Fed. Bank,

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No. C07-0990RSM, 2007 WL 3358068, at *1 (W.D. Wash. Nov. 13, 2007). Nor is a

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permanent injunction appropriate because Plaintiffs show no likelihood of success—let

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alone actual success—on their claims. See Battelle Energy All., LLC v. Southfork Sec.,

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Inc., 3 F. Supp. 3d 852, 865 (D. Idaho 2014) (“[T]he [c]ourt cannot issue a permanent

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injunction unless the moving party first demonstrates actual success on the merits, not

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just a likelihood of success.”); Hadel v. Willis Roof Consulting, Inc.,

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No. 2:06-cv-01032-RLH-RJJ, 2008 WL 4372783, at *2 (D. Nev. Sept. 23, 2008) (stating

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that a permanent injunction was premature because the plaintiffs had not demonstrated

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actual success at that the stage of the litigation).

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None of the legal authority Plaintiffs cite supports a different conclusion because that
authority does not apply here. (See Inj. Mot. at 3.) First, Weeks v. United States, which
established the exclusionary rule for improperly seized evidence under the Fourth Amendment,
does not apply to Plaintiffs’ claims because their allegations do not implicate seized evidence.
See 232 U.S. at 391-92; see also Mapp v. Ohio, 367 U.S. 643, 648 (1961) (discussing Weeks);
(see generally Compl.) Second, in Wellness Int’l Network, Ltd. v. Sharif, the Supreme Court
held that Article III permits bankruptcy judges to adjudicate “Stern claims” when the parties
knowingly and voluntarily consent, but this matter does not involve bankruptcy. See 135 S. Ct.
at 1949; (see generally Compl.) Finally, the Sherman Act declares that “[e]very contract,
combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce” is
illegal. 15 U.S.C. § 1. Despite Plaintiffs’ invocation of antitrust statutes and terminology, the
content of their complaint demonstrates that they do not assert an antitrust claim. See supra n.3.

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Plaintiffs also fail to make a showing on any of the other factors. They may intend to

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raise the length of their time in jail as a basis for their claims (see generally Compl.; Inj.

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Mot.), and imprisonment can constitute irreparable injury. See Welchen, 2016 WL

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430517, at *2 (stating that unconstitutional imprisonment can be an irreparable injury);

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Orantes-Hernandez v. Smith, 541 F. Supp. 351, 384 (C.D. Cal. 1982) (stating that an

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incarcerated plaintiff may “suffer irreparable injury from arbitrary solitary confinement

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[that] deprives [the plaintiff] of [his] liberty”). However, Plaintiffs fail to show an

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irreparable injury on the current record because neither their complaint nor their motion

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contains sufficient facts regarding their confinement, such as why they are currently

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confined (e.g., awaiting prosecution, serving a sentence, etc.). (See generally Compl.;

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Inj. Mot.) Finally, Plaintiffs do not discuss the how balance of equities tips in their favor

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or whether an injunction is in the public interest. For these reasons, the court denies

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Plaintiffs’ motion for a preliminary injunction.

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D.

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Service
As discussed above, Plaintiffs do not appear to have served Defendants. (See

Dkt.) Federal Rule of Civil Procedure 4(m) provides that:

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If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.

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Fed. R. Civ. P. 4(m).8 In addition, the court may extend the time for service if a

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plaintiff’s failure to serve is because of excusable neglect. See Lemoge v. United States,

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587 F.3d 1188, 1198 (9th Cir. 2000). A plaintiff’s pro se status alone, however, does not

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establish excusable neglect. Mentzer v. Vaikutyte, No. CV 16-1687 DMG (SS), 2018 WL

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1684340, at *5 (C.D. Cal. Feb. 26, 2018) (citing Mann v. Castel, 729 F. Supp. 2d 191,

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199 (D.D.C. 2010)).

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Here, there is no indication that Plaintiffs have served Defendants, and more than

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90 days have passed since Plaintiffs filed suit. (See Dkt.) Thus, the court orders

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Plaintiffs to show cause no later than August 17, 2018, why this case should not be

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dismissed without prejudice for failure to abide by Rule 4(m). If they fail to show good

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cause or excusable neglect or to respond to the court’s order, the court will dismiss the

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case.

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IV.

CONCLUSION

For the reasons set forth above, the court DENIES Plaintiffs’ motion for injunctive

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relief (Dkt. # 9), DENIES Plaintiffs’ second motion for reconsideration (Dkt. # 10),

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DENIES Plaintiffs’ motion for interlocutory review (Dkt. # 11), and ORDERS Plaintiffs

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Because Plaintiffs are not proceeding in forma pauperis (“IFP”) (see Dkt.), the rule that
“officers of the court shall issue and serve all process” does not apply, see 28 U.S.C. § 1915(d).
In any event, a prisoner proceeding IFP “may not remain silent and do nothing to effectuate
service,” and “[a]t a minimum, . . . should request service upon the appropriate defendant.”
Burton v. Lewis, No. C 12-3158 JSW (PR), 2012 WL 5505064, at *1 (N.D. Cal. Nov. 13, 2012).
Plaintiffs have not taken any steps to effect service. (See Dkt.)
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to show cause no later than August 17, 2018, why the court should not dismiss the case

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without prejudice for Plaintiffs’ failure to serve Defendants.

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Dated this 27th day of July, 2018.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 14