Wall v. Arend et al

Filing 23

ORDER signed by Judge Benjamin H. Settle denying 2 Motion for Preliminary Injunction; granting 20 Motion to Dismiss for Failure to State a Claim; denying 22 Motion for Extension of Time. Plaintiff may file an amended complaint by 9/22/2017. (TG; cc mailed to plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TERRELL RAKAI WALL,

CASE NO. C17-5453 BHS

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Plaintiff,
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v.

ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS

STEPHANIE AREND, et al.,
Defendants.

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This matter comes before the Court on Defendants’ motion to dismiss. Dkt. 20.

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Also before the Court are Plaintiff’s motion for a preliminary injunction and his request

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to extend the deadline for his response to Defendants’ motion to dismiss. Dkts. 2, 22. The

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Court has considered the pleadings filed in support of and in opposition to the motions

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and the remainder of the file and hereby grants Defendants’ motion to dismiss for the

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reasons stated herein.
I.

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PROCEDURAL HISTORY

Plaintiff filed his complaint and motion for preliminary injunction on June 13,

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2017. Dkts. 1, 2. On July 5, 2017, Defendants moved for dismissal. Dkt. 20. On July 25,

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2017, Plaintiff moved to extend the deadline for his response. Dkt. 22. On July 28, 2017,

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Defendants filed a reply to their motion to dismiss. Dkt. 21.

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II.
A.

DISCUSSION

Motion to Extend Deadline
Plaintiff has requested that the Court extend the deadline for the filing of his

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response by over a month until September 8, 2017. Dkt. 22. “A motion for relief from a

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deadline should, whenever possible, be filed sufficiently in advance of the deadline to

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allow the court to rule on the motion prior to the deadline.” W.D. Wash. Local Rules.

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LCR 7(j). Plaintiff did not request an extension to his deadline until a day after his

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response was due.

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While Plaintiff’s failure to comply with the Court’s local rules in timely requesting

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a deadline is reason enough to deny the request, the Court instead bases its decision on

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the fact that Plaintiff has failed to articulate a legitimate basis for an extension. Plaintiff’s

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only stated reason for requesting an extension of his response deadline is “because

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Plaintiff doesn’t have in its position [sic] copies of the hearing transcript . . . so as to

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incorporate into opposition to motion to dismiss.” Dkt. 22 at 2. Plaintiff does not

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articulate what hearing transcript he is referring to or how such a transcript would help

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him oppose a motion to dismiss. Indeed, reviewing the grounds for dismissal in

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Defendants’ motion, it is clear that the motion does not challenge the veracity of any facts

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alleged in the complaint, but rather argues about the legal deficiencies of those

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allegations. Whether Plaintiff can support his allegations with a record such as a hearing

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transcript is irrelevant to arguments in Defendants’ motion to dismiss, as developing a

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factual record will not cure the argued legal deficiencies of Plaintiff’s claims. Moreover,

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to the extent that Plaintiff might attempt to develop the record in order to cure factually

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deficient claims in the complaint, the proper method for curing such claims is to file an

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amended pleading containing sufficient factual allegations. Accordingly, Plaintiff’s

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motion to extend the deadline for his response is denied.

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Normally, Plaintiff’s failure to respond to a motion to dismiss would be construed

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as an admission that Defendants’ motion has merit. W.D. Wash. Local Rules LCR

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7(b)(2) (“Except for motions for summary judgment, if a party fails to file papers in

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opposition to a motion, such failure may be considered by the court as an admission that

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the motion has merit.”). However, in this instance, while Plaintiff has failed to file a

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substantive response, Plaintiff has nonetheless indicated his general opposition to the

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motion. Therefore, the Court will not regard Plaintiff’s lack of a timely response as an

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admission that Defendants’ motion to dismiss should be granted. Instead, the Court will

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address the merits of Defendants’ motion in light of the allegations made in the

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complaint.

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B.

Motion to Dismiss

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1.

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Motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil

Standard

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Procedure may be based on either the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Department, 901

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F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the

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complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295, 1301

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(9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed

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factual allegations but must provide the grounds for entitlement to relief and not merely a

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“formulaic recitation” of the elements of a cause of action. Bell Atlantic Corp. v.

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Twombly, 127 S. Ct. 1955, 1965 (2007). Plaintiffs must allege “enough facts to state a

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claim to relief that is plausible on its face.” Id. at 1974. When deciding a motion to

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dismiss, the Court’s consideration is generally limited to the pleadings. Fed. R. Civ. P.

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12(d).

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2.

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Plaintiff attempts to bring a civil claim against Defendants under criminal statute

Claims

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18 U.S.C. § 1506 based on filings made in his ongoing criminal proceedings in state

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court. Dkt. 1 at 3. The Court previously dismissed a petition to proceed in forma pauperis

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filed by Plaintiff on June 7, 2017. Wall, v. Lindquist, et al., C17-5439 BHS, Dkt. 2 (W.D.

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Wash. June 8, 2017). In doing so, the Court explained that Plaintiff had failed to state a

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valid claim because the criminal statutes he had cited did not provide a private cause of

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action or a basis for civil lawsuit based on the destruction of documents. Id. at 3 (citing

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Winslow v. Romer, 759 F. Supp. 670, 674 (D. Colo. 1991) (“Nothing in the language or

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history of 18 U.S.C. §§ 2071 or 31096 indicates that either statute was intended to create

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a private right of action.”); Dugar v. Coughlin, 613 F.Supp. 849, 852 n. 1 (S.D.N.Y.

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1985) (no private right of action under § 2071)). The same can be said of Plaintiff’s

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claims that Defendants violated 18 U.S.C. § 1506. Shahin v. Darling, 606 F. Supp. 2d

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525, 538 (D. Del. 2009), aff’d, 350 Fed. Appx. 605 (3d Cir. 2009) (“[18 U.S.C. § 1506]

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was not intended to be used in civil litigation or as a basis for a private right of action.”).

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Therefore, to the extent Plaintiff brings claims against Defendants asserting a private

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cause of action under 18 U.S.C. § 1506, those claims are dismissed. Because those claims

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cannot be cured by amendment, the dismissal is with prejudice and without leave to

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amend.

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Judicial immunity clearly bars Plaintiff’s claims against the various judicial

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defendants for allegedly (1) failing to adequately consider a motion by Plaintiff, (2)

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allowing false information to be admitted in Plaintiff’s criminal case, (2) entering a plea,

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(3) wrongly instructing the jury, (4) sealing court filings, or (5) denying Plaintiffs’

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motion to self-represent. Stump v. Sparkman, 435 U.S. 349, 359 (1978) (“A judge is

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absolutely immune from liability for his judicial acts even if his exercise of authority is

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flawed by the commission of grave procedural errors.”). Therefore, Plaintiff’s claims

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against Defendants Arend, Blinn, and Cuthbertson are denied with prejudice and without

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leave to amend.

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Plaintiff also brings § 1983 claims against Defendant Johnson, his court-appointed

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defense counsel. Plaintiff vaguely alleges that Johnson made abusive communications

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and failed to adequately represent him. It is well established that court-appointed defense

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attorneys are not acting under color of state law when representing clients and therefore

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cannot be sued under § 1983. Polk County v. Dodson, 454 U.S. 312, 317-25 (1981).

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Because Plaintiff’s § 1983 claims against Defendant Johnson are based in Johnson’s

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work as a public defender in the course of attempting to represent Plaintiff, the § 1983

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claims against him are dismissed. However, Johnson could still be liable under § 1983 if

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he “engaged in a conspiracy with state officials to deprive another of federal rights,”

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Tower v. Glover, 467 U.S. 914, 920 (1984), although the complaint presently lacks

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allegations regarding a conspiracy. While Plaintiff’s complaint presently fails to allege a

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§ 1983 claim against Johnson, it is not absolutely clear that his claim cannot be cured by

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amendment. Therefore, the claim is dismissed without prejudice and with leave to amend.

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Garmon v. Cty. of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016) (“A district court

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abuses its discretion by denying leave to amend unless amendment would be futile or the

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plaintiff has failed to cure the complaint’s deficiencies despite repeated opportunities.”).

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Plaintiff’s complaint fails to include any allegations regarding conduct by

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Defendant Stock. Therefore, Plaintiff’s claims against Defendant Stock are also

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dismissed without prejudice and with leave to amend.

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Plaintiff also brings a 42 U.S.C. § 1983 claim against Defendant Lund, the

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prosecutor in his state court criminal proceeding, by arguing that Lund submitted a false

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and/or fabricated declaration to deprive Plaintiff of his right to self-representation and the

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revocation of his bail. Dkt. 1 at 8–9. “[T]here is a clearly established constitutional due

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process right not to be subjected to criminal charges on the basis of false evidence that

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was deliberately fabricated by the government.” Devereaux v. Abbey, 263 F.3d 1070,

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1074–75 (9th Cir. 2001).” However, “[t]o prevail on a § 1983 claim of deliberate

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fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated

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evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.”

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Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). In this case, Plaintiff’s conclusory

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allegation that the prosecutor submitted false evidence is insufficient to state a viable

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claim. Plaintiff merely claims that “Lund submitted false affidavit/declarations to the

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court . . . that included fabricated victim/witness statement [sic],” without alleging that

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Lund knew the evidence was false and/or participated in its fabrication. Moreover,

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Plaintiff fails to even set out what statements were submitted that are allegedly false.

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Absent such allegations, Plaintiff has failed to state a viable § 1983 claim against Lund.

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Nonetheless, this does not mean that Plaintiff cannot cure his deficient claim by alleging

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additional facts. Therefore Plaintiff’s § 1983 claim against Plaintiff should be dismissed

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without prejudice and with leave to amend.

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The Court notes that, even if Plaintiff successfully amends his complaint to plead

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facts to support a theory that Lund fabricated and submitted false evidence against him, it

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appears that the Younger abstention doctrines would still prevent the Court from

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interfering in Plaintiff’s ongoing state criminal proceedings. “[A] federal court should not

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enjoin a state criminal prosecution begun prior to the institution of the federal suit except

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in very unusual situations, where necessary to prevent immediate irreparable injury.”

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Samuels v. Mackell, 401 U.S. 66, 69 (1971) (citing Younger v. Harris, 401 U.S. 37

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(1971)). “When a state criminal prosecution has begun, the Younger rule directly bars a

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declaratory judgment action.” Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986).

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Therefore, as Plaintiff can pursue his constitutional challenges to Lund’s conduct in his

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criminal proceedings, his motion for a preliminary injunction and request for relief that

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the Court stay and dismiss his prosecution is clearly barred by Younger. See Dkt. 1 at 9.

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Additionally, “[d]amages suits that turn on a constitutional challenge to pending state

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proceedings implicate the reasons for Younger abstention as much as equitable or

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declarative relief actions because to determine whether the federal plaintiff is entitled to

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damages—and to determine whether the federal defendant is entitled to immunity—the

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district court must first decide whether a constitutional violation has occurred.”

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Gilbertson v. Albright, 381 F.3d 965, 979 (9th Cir. 2004). Therefore, even if Plaintiff

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amends his pleading to sufficiently allege a § 1983 claim for damages against Lund, to

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the extent that Plaintiff seeks to challenge the constitutionality of his criminal

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proceedings based on the veracity and/or sufficiency of the unspecified “victim/witness

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statement” against him, it appears that the Court will still be required to stay Plaintiff’s

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damages action pending the resolution of his criminal proceeding. See Gilbertson v.

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Albright, 381 F.3d 965, 982 (9th Cir. 2004) (“Younger principles apply to a claim for

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damages based on constitutional challenges which can be asserted in pending state

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proceedings that implicate important state interests, and . . . the correct disposition is to

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defer—not to dismiss—when damages are at issue.”). Nonetheless, as Plaintiff has not

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yet stated a cognizable claim, the Court need not conclusively decide this issue.

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Finally, Plaintiff has also failed to allege a cognizable 18 U.S.C. § 1964 civil

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RICO claim. “There is no RICO predicate based on allegations of unspecified ‘civil

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rights violations,’” Yagman v. Garcetti, 852 F.3d 859, 867 (9th Cir. 2017), and Plaintiff

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has failed to otherwise adequately plead that Defendants engaged in a pattern of

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racketeering predicate offenses. Moreover, “[w]ithout a harm to a specific business or

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property interest—a categorical inquiry typically determined by reference to state law—

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there is no injury to business or property within the meaning of RICO,” Diaz v. Gates,

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420 F.3d 897, 900 (9th Cir. 2005), and Plaintiff fails to allege any injury to “business or

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property.” Accordingly, Plaintiff has failed to adequately alleged a viable claim under 18

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U.S.C. § 1964. However, Defendants have not substantively addressed Plaintiff’s civil

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RICO claim other than to argue that “criminal statutes do not create a private cause of

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action as a matter of law.” Dkt. 20 at 8. Therefore, it is not absolutely clear that this claim

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cannot be cured by amendment, and to the extent that this claim is asserted against

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defendants based on actions that are not subject to judicial or prosecutorial immunity,

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dismissal is without prejudice and with leave to amend.

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III.

ORDER

Therefore, it is hereby ORDERED that Plaintiff’s motion for a preliminary

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injunction (Dkt. 2) and his motion to extend a deadline (Dkt. 22) are DENIED.

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Defendants’ motion to dismiss (Dkt. 20) is GRANTED as follows:

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(1)

Plaintiff’s claims against Defendants Arend, Blinn, and Cuthbertson and his

claims under 18 U.S.C. § 1506 are DISMISSED with prejudice; and
(2)

Plaintiff’s 42 U.S.C. § 1983 and 18 U.S.C. § 1964 claims against

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Defendants Lund, Johnson, and Stock are DISMISSED without prejudice and with

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leave to amend.

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Plaintiff may file an amended complaint no later than September 22, 2017. Failure

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to file a timely amended complaint shall result in the Clerk closing this case without any

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further order from the Court.

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Dated this 17th day of August, 2017.

A

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BENJAMIN H. SETTLE
United States District Judge

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