United States District Court, W.D. Washington, Tacoma
PAMELA K. SCOTT, Plaintiff,
COLIN HAYES, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Pamela K.
Scott's (“Scott”) motion to proceed in
forma pauperis. Dkt. 1.
August 4, 2017, Scott filed the instant motion and proposed
complaint. She alleges a double jeopardy violation and a
malicious prosecution stemming from an amended state court
judgment and sentence (“J&S”). Dkt. 1-1 at 3.
After Scott was convicted in 2011, the court entered a
sentence of twelve months of incarceration followed by 49
months of community custody. Id. at 5. As she was
approaching the end of her community custody term, the Clark
County prosecutor filed a motion to amend the J&S
asserting that the original intent of the sentencing court
was to sentence Scott to 61 months of community custody.
Id. at 18-19. The court granted the motion over
Scott's opposition and entered an order amending the
J&S. Id. Scott immediately appealed the amended
the matter was on appeal, another Clark County prosecutor
attempted to settle. When Scott refused to settle, the
prosecutor threatened to revoke her community custody status
for certain violations, which could have resulted in Scott
being returned to prison for 49 months. Id. at 32.
Scott declined the prosecutor's offer, and the prosecutor
filed a motion to revoke Scott's community custody.
Id. at 33. Three weeks later, the prosecutor
withdrew the motion to revoke Scott's community custody
because Scott fulfilled the reported violations. Id.
at 39. A few months later, the county filed its appellate
brief and conceded that the trial court erred by amending the
J&S. Id. at 18-22. The county requested that the
appellate court should remand the case to the trial court
with instructions to strike the amended J&S. Id.
district court may permit indigent litigants to proceed
in forma pauperis upon completion of a proper
affidavit of indigency. See 28 U.S.C. §
1915(a); W.D. Wash. Local Rules LCR 3(b). However, the
“privilege of pleading in forma pauperis . . .
in civil actions for damages should be allowed only in
exceptional circumstances.” Wilborn v.
Escalderon, 789 F.2d 1328 (9th Cir. 1986). The court has
broad discretion in denying an application to proceed in
forma pauperis. Weller v. Dickson, 314 F.2d 598
(9th Cir. 1963), cert. denied 375 U.S. 845 (1963).
Here, Scott's affidavit and in forma pauperis
application show that she is unable to prepay fees and costs.
See Dkt. 1.
even if a plaintiff satisfies the financial requirements for
eligibility to proceed in forma pauperis, the
Court's review of the application and underlying
complaint is not complete. Under the in forma
pauperis statute, the Court must dismiss the case
sua sponte if it determines at any time that (1) the
allegation of poverty is untrue, (2) the action is frivolous
or malicious, (3) the complaint fails to state a viable
claim, or (3) the action seeks monetary relief against an
immune defendant. 28 U.S.C. § 1915(e)(2).
case, Scott has failed to show that exceptional circumstances
exist and defendants are immune from the alleged actions.
While Scott was definitely placed in a stressful position
when faced with additional prison time, Scott has failed to
allege any action outside the scope of the assigned
prosecutors. Thus, they are most likely entitled to absolute
prosecutorial immunity. Lacey v. Maricopa Cty., 693
F.3d 896, 912 (9th Cir. 2012) (“Prosecutors performing
their official prosecutorial functions are entitled to
absolute immunity against constitutional torts.”).
Moreover, even if immunity does not apply, malicious
prosecution requires “that the defendants prosecuted
[Scott] with malice and without probable cause, and that they
did so for the purpose of denying [Scott] equal protection or
another specific constitutional right.” Freeman v.
City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995).
Scott's allegations do not rise to the level of malice or
an action without probable cause because her probation
officer declared under penalty of perjury that Scott had
failed to complete at least two conditions of her community
confinement. Dkt. 1-1 at 37. Therefore, the Court concludes
that this is not a claim that meets the exceptional
circumstance criteria to proceed in forma pauperis.
the Court is unaware of any authority for the proposition
that a plaintiff may maintain a double jeopardy claim for
civil damages. Therefore, the Court concludes that this claim
the Court DENIES Scott's motion to proceed in forma
pauperis. If Scott chooses to proceed with this
complaint, she shall pay the filing fee no later than
September 1, 2017. Failure to timely pay the fee ...