Terwilleger v. State of Washington et al

Filing 4

ORDER DENYING APPLICATION TO PROCEED IFP, DISMISSING CASE, AND STRIKING APPLICATION FOR COURT APPOINTED COUNSEL by Judge Robert J. Bryan. (cc: Plaintiff at Tacoma address) (TC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRIAN TERWILLEGER,
Plaintiff,

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v.
STATE OF WASHINGTON, GRAYS
HARBOR COUNTY,

CASE NO. C17-5596 RJB
ORDER DENYING
APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND
STRIKING APPLICATION FOR
COURT APPOINTED COUNSEL

Defendants.

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This matter comes before the Court on Plaintiff’s Application to Proceed In Forma
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Pauperis (“IFP”) (Dkt. 1) and Application for Court Appointed Counsel (Dkt. 1-4). The Court
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has considered the applications, relevant record, and the remainder of the file herein.
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On July 28, 2017, Plaintiff filed a proposed civil complaint, an application to proceed
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IFP, that is, without paying the filing fee for a civil case, and an application for the Court to
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appoint him counsel. Dkt. 1 and 1-2.
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Standard for Granting Application for IFP. The district court may permit indigent
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litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. §
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1915(a). However, the court has broad discretion in denying an application to proceed IFP.
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Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). A district
ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 1

1 court may deny leave to proceed IFP at the outset if it appears from the face of the proposed
2 complaint that the action is frivolous or without merit. Minetti v. Port of Seattle, 152 F.3d 1113
3 (9th Cir. 1998) (quoting Tripati v. First Nat'l Bank & Trust, 821 F. 2d 1368, 1370 (9th Cir.
4 1987)). Accordingly, the proposed complaint should be reviewed before a decision is made on
5 Plaintiff’s IFP application.
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Review of the Complaint and Other Related Cases. The Court has carefully reviewed

7 the proposed complaint in this matter. Because Plaintiff filed this complaint pro se, the Court
8 has construed the pleadings liberally and has afforded Plaintiff the benefit of any doubt. See
9 Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988).
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The proposed complaint is entitled “Civil Rights Complaint Under 42 U.S.C. §

11 1983,” and asserts that on September 11, 2016, Plaintiff was arrested and detained at the
12 Grays Harbor County jail “for 202 days with no waiver of rights.” Dkt. 1-1, at 3. He
13 asserts that he wrote the superior court several times that he did not want to waive his
14 speedy trial rights, in Grays Harbor County, Washington Superior Court case number 1615 1-408-6. Id. Plaintiff asserts that his lawyer, Mr. Soriano Jr. moved the superior court to
16 have his trial date continued to May 2, 2017, and the superior court granted the motion
17 over his “concerns.” Id. He states that he was not released from pre-trial custody until
18 March 31, 2017. Id. As relief, Plaintiff seeks a “federal injunction to dismiss with
19 prejudice” Grays Harbor County, Washington Superior Court case number 16-1-408-6 or
20 a change of venue to a Pierce County, Washington Superior Court, King County,
21 Washington Superior Court, or “if possible and perfered [sic] Federal District Court
22 Tacoma.” Id., at 4. He also seeks damages. Id.
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ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 2

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This is the third case Plaintiff filed over the last few months. In the first,

2 Terwilleger v. State of Washington and Grays Harbor County, Western District of
3 Washington case number 17-5360 RJB, Plaintiff’s proposed complaint was a mixed
4 petition; that is, it challenged the fact or duration of a past criminal conviction, (or
5 attempted to raise issues regarding current criminal proceedings), and challenged
6 conditions of Plaintiff’s confinement at the Grays Harbor County Jail. Terwilleger v.
7 State of Washington, et. al., Western District of Washington case number 17-5360 RJB,
8 Dkt. 10. Plaintiff was informed that he could not raise all these claims together in the
9 same case and was given an opportunity to file a proposed amended complaint to clarify
10 whether he intended to procced with the case as a habeas corpus proceeding or a
11 conditions of confinement case. Terwilleger v. State of Washington, et. al., Western
12 District of Washington case number 17-5360 RJB, Dkt. 10. Although he filed a proposed
13 amended complaint, he continued to assert both types of claims. Terwilleger v. State of
14 Washington, et. al., Western District of Washington case number 17-5360 RJB, Dkt. 10.
15 So, the case was dismissed and his pending motions were stricken. Terwilleger v. State
16 of Washington, et. al., Western District of Washington case number 17-5360 RJB, Dkt.
17 10.
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Three days later, Plaintiff filed the second case, Terwilleger v. State of

19 Washington, Department of Assigned Counsel, and Grays Harbor County
20 Sheriff/Jail/Court, Western District of Washington case number 17-5580 RJB. Plaintiff’s
21 proposed complaint in that case provided:
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[He is] asking for a redress of grievances. [He] previously in Grays Harbor
County Sherriffs [sic] Office/Jail filed many grievances and grievance appeal.
[He] extinguished all existing ave. and [is] now moving forward on claims and
ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 3

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concerns in grievance and grievance appeal many other issues arise from these
claims.

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Terwilleger v. State of Washington, Department of Assigned Counsel, and Grays Harbor
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County Sheriff/Jail/Court, Western District of Washington case number 17-5580 RJB
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Dkt. 1-1. He names as Defendants: “State of Washington Department of Assigned
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Counsel Grays Harbor County Sherriff/Jail/Court.” Id. In the section of the proposed
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complaint entitled “Relief,” in that case, Plaintiff states that he seeks an “injunction and
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[he is] asking for the federal district court in Tacoma to put a stay on [his] current case in
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Grays Harbor County Case # [no number is listed] and or grant a change of venu [sic] to
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have case moved to federal distric [sic] court Tacoma.” Id., at 4. Plaintiff also states that
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he is “seeking an injunction to have his vehical [sic] released from evidence locker” and
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“damages in the form of 2,500,000.00.” Id. Additionally, Plaintiff states, “[he] would
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ask for a motion to reopen case 3-17-cv-05360-RJB under 42 U.S.C. Section 1983 claims
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as part of, or in part or as attachment to or separate from this claim.” Id. (Plaintiff also
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filed a motion to reopen in 17-5360 RJB, and this motion/statement shall be addressed in
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the Court’s decision on that motion in that case). On August 2, 2017, Terwilleger v. State
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of Washington, Department of Assigned Counsel, and Grays Harbor County
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Sheriff/Jail/Court, Western District of Washington case number 17-5580 RJB was
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dismissed pursuant the Younger v. Harris, 401 U.S. 37 (1971), and as a mixed habeas
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corpus petition and conditions of confinement case.
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The day after the second case was filed, Plaintiff filed the instant proposed complaint and
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applications to proceed IFP and for court appointed counsel. Dkt. 1 and 1-2.
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Standard on Review of a Complaint. Pursuant to Fed. R. Civ. P. 8 (a):
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A pleading that states a claim for relief must contain:
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ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 4

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(1) a short and plain statement of the grounds for the court's jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;

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(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.

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7 While the pleading standard under Rule 8 “does not require ‘detailed factual allegations,’ it
8 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
9 v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although pleadings drafted by a party proceeding pro se
10 must be read more liberally than pleadings drafted by counsel, a pro se litigant is not excused
11 from knowing the most basic pleading requirements. See American Ass’n of Naturopathic
12 Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000).
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Sua Sponte Dismissal. A federal court may dismiss a case sua sponte pursuant to Fed.

14 R. Civ. P. 12 (b)(6) when it is clear that the plaintiff has not stated a claim upon which relief may
15 be granted. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.1987) (“A trial court
16 may dismiss a claim sua sponte under Fed. R. Civ. P. 12 (b)(6). Such a dismissal may be made
17 without notice where the claimant cannot possibly win relief”). See also Mallard v. United
18 States Dist. Court, 490 U.S. 296, 307-08 (1989) (there is little doubt a federal court would have
19 the power to dismiss frivolous complaint sua sponte, even in absence of an express statutory
20 provision). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v.
21 Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
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Federal courts are courts of limited jurisdiction. Jurisdiction is a threshold issue that

23 must be raised sua sponte. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95
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ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 5

1 (1998). A federal court must have subject matter jurisdiction, which can be established by either
2 the existence of a federal question or complete diversity of citizenship of the parties. 28 U.S.C. §
3 1331 and 1332. A court is presumed to lack subject matter jurisdiction until a plaintiff
4 establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994).
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This case should be dismissed. To the extent that Plaintiff’s proposed complaint attempts

6 to raise issues related to criminal proceedings which are currently before a Washington superior
7 court, there is no showing that this Court has jurisdiction over Plaintiff’s claims. Moreover, as
8 was the case in Terwilleger v. State of Washington, Department of Assigned Counsel, and Grays
9 Harbor County Sheriff/Jail/Court, Western District of Washington case number 17-5580 RJB,
10 this Court should abstain from intervening in those proceedings. Under principles of comity and
11 federalism, a federal court should not interfere with ongoing state criminal proceedings by
12 granting injunctive or declaratory relief except under special circumstances. Younger v. Harris,
13 401 U.S. 37 (1971); Samuels v.Mackell, 401 U.S. 66 (1971). Younger abstention is required
14 when: (1) state proceedings, judicial in nature, are pending; (2) the state proceedings involve
15 important state interests; (3) the state proceedings afford adequate opportunity to raise the
16 constitutional issue. Middlesex Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432
17 (1982). Criminal trials involve important state interests and Plaintiff has the opportunity to raise
18 issues before the court in the criminal proceedings and on appeal in the state courts. There is no
19 allegation that would indicate that special circumstances apply. Further, Plaintiff’s damages
20 claims appear to rest on a finding that his constitutional rights have been violated, and are not
21 properly before the Court at this time. In light of the fact that criminal proceedings may be or are
22 currently pending in superior court, this Court should abstain from interfering in those
23 proceedings.
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ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 6

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To the extent Plaintiff is attempting to raise issues related to prior convictions, as he was

2 cautioned in an order in Terwilleger v. State of Washington, et. al., Western District of
3 Washington case number 17-5360 RJB, Dkt. 6, he should be mindful that “[t]he federal habeas
4 corpus statute requires that the applicant must be ‘in custody’ when the application for habeas
5 corpus is filed.” Carafas v. LaVallee, 391 U.S. 234, 238, 88 (1968). If Plaintiff is not in custody,
6 this court would not have jurisdiction to afford him relief under 28 U.S.C. § 2254, (Carafas, at
7 88), and the case would be dismissed. Furthermore, it is unclear whether Plaintiff has exhausted
8 his state court remedies by raising his issues in the state courts first, as he is generally required to
9 do before he can file a 28 U.S.C. § 2254 case in this court. 28 U.S.C. § 2254 (b). “[A] petitioner
10 for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he
11 characterized the claims he raised in state proceedings specifically as federal claims. In short, the
12 petitioner must have either referenced specific provisions of the federal constitution or statutes or
13 cited to federal case law.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000). Even though
14 he has been told he must, Plaintiff has still failed to allege that he is in custody and that he
15 appealed each of the grounds he attempts to raise in this case to the Washington State Court of
16 Appeals and Washington State Supreme Court.
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Unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is

18 entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal
19 of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995).
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This case should be dismissed and Plaintiff should not be given leave to amend. This is

21 Plaintiff’s fourth attempt at filing a complaint. Plaintiff still has not followed the directives of
22 the Court in regard to the viability of the claims on the validity of current or past criminal
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ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 7

1 proceedings. He should not be given leave to file a proposed amended complaint in this case
2 because he has made four attempts, and further attempts would be futile.
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Decision on Application to Proceed IFP. Based upon the above analysis of the

4 deficiencies in the proposed complaint, the Court should deny Plaintiff’s application to proceed
5 in forma pauperis.
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Decision on Application for Court Appointed Counsel and Other Pending Motion.

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Pursuant to the Younger abstention doctrine and Plaintiff’s failure to establish that this

8 Court has jurisdiction to consider his habeas corpus claims (to the extent he makes such claims)
9 this case should be dismissed. Accordingly, the Application for Court Appointed Counsel (Dkt.
10 1-4) should be stricken as moot.
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IFP on Appeal. In the event that Plaintiff appeals this order, and/or appeals dismissal of

12 this case, IFP status should be denied by this court, without prejudice to Plaintiff to file with the
13 Ninth Circuit U.S. Court of Appeals an application to proceed in forma pauperis.
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Future filings. Other than a Notice of Appeal, any filings in this case in the future will

15 be docketed by the Clerk but will not be acted upon by the Court.
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ORDER
Therefore, it is hereby ORDERED that:

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

This case IS DISMISSED;

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Plaintiff’s Application to Proceed In Forma Pauperis (Dkt. 1) IS DENIED; and

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Application for Court Appointed Counsel (Dkt. 1-4) IS STRICKEN AS MOOT;

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In the event that Plaintiff appeals this order, IFP status IS DENIED by this Court,

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without prejudice to Plaintiff to file with the Ninth Circuit U.S. Court of Appeals

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an application to proceed in forma pauperis. Other than a Notice of Appeal, any

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ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 8

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filings in this case in the future will be docketed by the Clerk but not acted upon

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by the Court.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

4 to any party appearing pro se at their last known address.
Dated this 8th day of August, 2017.

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A

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ROBERT J. BRYAN
United States District Judge

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ORDER DENYING APPLICATION TO PROCEED
IFP, DISMISSING CASE, AND STRIKING
APPLICATION FOR COURT APPOINTED
COUNSEL- 9