Bady vs. Tollefson

Filing 6

ORDER TO SHOW CAUSE re 5 Complaint filed by Lance L Bady by Judge Karen L Strombom. Show Cause Response due by 11/30/2012. (MET) cc: plaintiff w/form & general order.

1
2
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

3
4
5

LANCE L. BADY,

6
7
8
9

Plaintiff,

No. C12-5930 RJB/KLS

v.
ORDER TO AMEND OR SHOW CAUSE
JUDGE BRIAN TOLLEFSON,
Defendant.

10

This matter has been referred to Magistrate Judge Karen L. Strombom pursuant to 28

11

U.S.C. § 636(b)(1), Local Rules MJR 3 and 4. Plaintiff has been granted leave to proceed in

12

forma pauperis. Presently before the Court for review is Plaintiff’s proposed civil rights

13
complaint. ECF No. 4. The Court will not direct service of Plaintiff’s complaint at this time
14
15
16
17
18
19
20

because it is deficient, as is explained in further detail below. Plaintiff will be given an
opportunity to amend his complaint.
DISCUSSION
Under the Prison Litigation Reform Act of 1995, the Court is required to screen
complaints brought by prisoners seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint

21
22

or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that

23

fail to state a claim upon which relief may be granted, or that seek monetary relief from a

24

defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b)(1), (2) and 1915(e)(2); See

25

Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998).

26
ORDER TO AMEND OR SHOW CAUSE- 1

1

A complaint is legally frivolous when it lacks an arguable basis in law or fact. Neitzke v.

2

Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.

3

1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

4

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

5
490 U.S. at 327. A complaint or portion thereof, will be dismissed for failure to state a claim
6
7

upon which relief may be granted if it appears the “[f]actual allegations . . . [fail to] raise a right

8

to relief above the speculative level, on the assumption that all the allegations in the complaint

9

are true.” See Bell Atlantic, Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted).

10

In other words, failure to present enough facts to state a claim for relief that is plausible on the

11

face of the complaint will subject that complaint to dismissal. Id. at 1974.

12

Although complaints are to be liberally construed in a plaintiff’s favor, conclusory

13
allegations of the law, unsupported conclusions, and unwarranted inferences need not be
14
15

accepted as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Neither can the court supply

16

essential facts that an inmate has failed to plead. Pena, 976 F.2d at 471 (quoting Ivey v. Board of

17

Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). Unless it is absolutely clear that

18

amendment would be futile, however, a pro se litigant must be given the opportunity to amend

19

his complaint to correct any deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

20

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, “the complaint [must

21
22

provide] ‘the defendant fair notice of what the plaintiff’s claim is and the ground upon which it

23

rests.’” Kimes v. Stone 84 F.3d 1121, 1129 (9th Cir. 1996) (citations omitted). In addition, in

24

order to obtain relief against a defendant under 42 U.S.C. § 1983, a plaintiff must prove that the

25

particular defendant has caused or personally participated in causing the deprivation of a

26

particular protected constitutional right. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).
ORDER TO AMEND OR SHOW CAUSE- 2

1

To be liable for “causing” the deprivation of a constitutional right, the particular defendant must

2

commit an affirmative act, or omit to perform an act, that he or she is legally required to do, and

3

which causes the plaintiff’s deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

4

Plaintiff purports to sue Judge Brian Tollefson for failing to transfer his criminal case

5
from Pierce County Superior Court to an “Ecclesiastical Court.” ECF No. 4.
6
7

Plaintiff brings this action under 42 U.S.C. § 1983. To state a claim under 42 U.S.C. §

8

1983, a complaint must allege: (i) the conduct complained of was committed by a person acting

9

under color of state law and (ii) the conduct deprived a person of a right, privilege, or immunity

10

secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535,

11

101 S.Ct. 1908, 687 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474

12

U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if

13
both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).
14
15

Plaintiff’s complaint fails to state a cognizable claim under § 1983. First, he has not

16

named a proper defendant. Judges are absolutely immune from liability for damages in civil

17

rights suits for judicial acts performed within their subject matter jurisdiction. Stump v.

18

Sparkman, 435 U.S. 349, 356 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986)

19

(en banc); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per curiam).

20

Even if Plaintiff were granted leave to amend his complaint to name a proper defendant,

21
22

the lawsuit here could not proceed because Plaintiff is attempting to challenge the propriety of

23

ongoing proceedings in Pierce County Superior Court. Generally, federal courts will not

24

intervene in a pending criminal proceeding absent extraordinary circumstances where the danger

25

of irreparable harm is both great and immediate. See Younger v. Harris, 401 U.S. 37, 45 46

26

(1971); see also Fort Belknap Indian Community v. Mazurek, 43 F.3d 428, 431 (9th Cir.1994),
ORDER TO AMEND OR SHOW CAUSE- 3

1

cert. denied, 116 S.Ct. 49 (1995) (abstention appropriate if ongoing state judicial proceedings

2

implicate important state interests and offer adequate opportunity to litigate federal constitutional

3

issues); World Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079, 1082 (9th

4

Cir.1987)(Younger abstention doctrine applies when the following three conditions exist: (1)

5
ongoing state judicial proceeding; (2) implication of an important state interest in the proceeding;
6
7
8

and (3) an adequate opportunity to raise federal questions in the proceedings).
Only in the most unusual circumstances is a petitioner entitled to have the federal court

9

intervene by way of injunction or habeas corpus before the jury comes in, judgment has been

10

appealed from and the case concluded in the state courts. Drury v. Cox, 457 F.2d 764, 764 65

11

(9th Cir.1972). See Carden v. Montana, 626 F.2d 82, 83 84 (9th Cir.), cert. denied, 449 U.S.

12

1014 (1980). Extraordinary circumstances exist where irreparable injury is both great and

13
immediate, for example where the state law is flagrantly and patently violative of express
14
15
16
17

constitutional prohibitions or where there is a showing of bad faith, harassment, or other unusual
circumstances that would call for equitable relief. Younger, 401 U.S. at 46, 53-54.
There are no extraordinary circumstances here warranting intervention by this Court in

18

any ongoing state proceeding and, therefore, Plaintiff’s claims are not cognizable under 42

19

U.S.C. § 1983.

20

Due to the deficiencies described above, the Court will not serve the complaint. Plaintiff

21
22

may file an amended complaint curing, if possible, the above noted deficiencies, or show cause

23

explaining why this matter should not be dismissed. If Plaintiff chooses to amend his complaint,

24

he must demonstrate how the conditions complained of have resulted in a deprivation of his

25

constitutional rights. The complaint must allege in specific terms how each named defendant is

26

involved. The amended complaint must set forth all of Plaintiff’s factual claims, causes of
ORDER TO AMEND OR SHOW CAUSE- 4

1

action, and claims for relief. Plaintiff shall set forth his factual allegations in separately

2

numbered paragraphs and shall allege with specificity the following:

3
4

(1)

the names of the persons who caused or personally participated in causing the

alleged deprivation of his constitutional rights;

5
(2)

the dates on which the conduct of each Defendant allegedly took place; and

(3)

the specific conduct or action Plaintiff alleges is unconstitutional.

6
7
8
9

The amended complaint will operate as a complete substitute to the present complaint.
Therefore, reference to a prior pleading or another document is unacceptable – once Plaintiff

10

files an amended complaint, the original pleading or pleadings will no longer serve any function

11

in this case.

12

Plaintiff shall present his complaint on the form provided by the Court. The amended

13
complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a
14
15

copy, it may not incorporate any part of the original complaint by reference, and it must be

16

clearly labeled the “Amended Complaint” and must contain the same cause number as this case.

17

Plaintiff should complete all sections of the court’s form. Plaintiff may attach continuation

18

pages as needed but may not attach a separate document that purports to be his amended

19

complaint. Plaintiff is advised that he should make a short and plain statement of claims

20

against the defendants. He may do so by listing his complaints in separately numbered

21
22
23

paragraphs. He should include facts explaining how each defendant was involved in the
denial of his rights.

24

The Court will screen the amended complaint to determine whether it contains factual

25

allegations linking each defendant to the alleged violations of Plaintiff's rights. The Court will

26
ORDER TO AMEND OR SHOW CAUSE- 5

1

not authorize service of the amended complaint on any Defendant who is not specifically linked

2

to the violation of Plaintiff's rights.

3
4

If Plaintiff decides to file an amended civil rights complaint in this action, he is cautioned
that if the amended complaint is not timely filed or if he fails to adequately address the issues

5
raised herein on or before November 30, 2012, the Court will recommend dismissal of this
6
7

action as frivolous pursuant to 28 U.S.C. § 1915 and the dismissal will count as a “strike”

8

under 28 U.S.C. § 1915(g). Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner

9

who brings three or more civil actions or appeals which are dismissed on grounds they are

10

legally frivolous, malicious, or fail to state a claim, will be precluded from bringing any other

11

civil action or appeal in forma pauperis “unless the prisoner is under imminent danger of serious

12

physical injury.” 28 U.S.C. § 1915(g).

13
The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C.
14
15
16

1983 civil rights complaint and for service. The Clerk is further directed to send a copy of
this Order and a copy of the General Order to Plaintiff.

17
18

DATED this 2nd day of November, 2012.

A

19
20

Karen L. Strombom
United States Magistrate Judge

21
22
23
24
25
26
ORDER TO AMEND OR SHOW CAUSE- 6