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Terwilleger v. Soriano

United States District Court, W.D. Washington

August 9, 2017

BRIAN TERWILLEGER, Plaintiff,
v.
RONNIE A SORIANO, Defendant.

          ORDER DENYING APPLICATION TO PROCEED IFP, DISMISSING CASE, AND STRIKING APPLICATION FOR COURT APPOINTED COUNSEL AND OTHER MOTION

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's Application to Proceed In Forma Pauperis (“IFP”) (Dkt. 1) and Application for Court Appointed Counsel (Dkt. 1-10), and motion for the service of process (Dkt. 1-11). The Court has considered the applications, motion, relevant record, and the remainder of the file herein.

         On August 2, 2017, Plaintiff filed a proposed civil complaint, an application to proceed IFP, that is, without paying the filing fee for a civil case, an application for the Court to appoint him counsel, and a motion for the Clerk of the Court to serve this case. Dkts. 1, 1-2, 1-10 and 1-11.

         Standard for Granting Application for IFP.

         The district court may permit indigent litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). However, the court has broad discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). A district court may deny leave to proceed IFP at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit. Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998) (quoting Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). Accordingly, the proposed complaint should be reviewed before a decision is made on Plaintiff's IFP application.

         Review of the Complaint and Other Related Cases.

         The Court has carefully reviewed the proposed complaint in this matter. Because Plaintiff filed this complaint pro se, the Court has construed the pleadings liberally and has afforded Plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988).

         The proposed complaint is entitled “Civil Rights Complaint under 42 U.S.C. § 1983, ” and asserts that Plaintiff's trial counsel (Defendant Ronnie Soriano) in an ongoing state criminal proceeding “made conscientious decisions not asserting [Plaintiff's] position.” Dkt. 1-1, at 3. Plaintiff maintains that Mr. Soriano “did not defend the proceeding, ” “explore every element, ” or make “any efforts to expedite litigation.” Id. Plaintiff asserts that Mr. Soriano engaged in fraud, was incompetent, careless, and did nothing about the “spoliation of evidence while abusing process.” Id. Plaintiff alleges Mr. Soriano “failed to perform due diligence” and “violated [Plaintiff's] constitutional rights.” Id. He maintains that he showed Mr. Soriano that Plaintiff “was competent in conversation and in letters to the superior court on more than 10 different occasions.” Id. Plaintiff asserts that Mr. Soriano did not file any of his motions and did not call certain witnesses from Columbia Mental Health Plaintiff wanted to call to show he has [posttraumatic stress disorder] and [traumatic brain injury]. Id. Plaintiff seeks to have Grays Harbor County case number 16-1-408-6 dismissed or removed from Grays Harbor County to federal district court in Tacoma. Id., at 4. Plaintiff is also seeking Mr. Soriano's disbarment/suspension from the Washington State Bar, damages, and an “injunction keeping [G]ray's [H]arbor [C]ounty from any further proceedings including sentencing for a minimum of 90 days.” Id.

         This is the fourth case Plaintiff filed over the last few months. In the first, Terwilleger v. State of Washington and Grays Harbor County, Western District of Washington case number 17-5360 RJB, Plaintiff's proposed complaint was a mixed petition; that is, it challenged the fact or duration of a past criminal conviction, (or attempted to raise issues regarding current criminal proceedings), and challenged conditions of Plaintiff's confinement at the Grays Harbor County Jail. Terwilleger v. State of Washington, et. al., Western District of Washington case number 17-5360 RJB, Dkt. 10. Plaintiff was informed that he could not raise all these claims together in the same case and was given an opportunity to file a proposed amended complaint to clarify whether he intended to procced with the case as a habeas corpus proceeding or a conditions of confinement case. Terwilleger v. State of Washington, et. al., Western District of Washington case number 17-5360 RJB, Dkt. 10. Although he filed a proposed amended complaint, he continued to assert both types of claims. Terwilleger v. State of Washington, et. al., Western District of Washington case number 17-5360 RJB, Dkt. 10. So, on July 24, 2017, the case was dismissed and his pending motions were stricken. Terwilleger v. State of Washington, et. al., Western District of Washington case number 17-5360 RJB, Dkt. 10.

         Three days later, on July 27, 2017, Plaintiff filed the second case, Terwilleger v. State of Washington, Department of Assigned Counsel, and Grays Harbor County Sheriff/Jail/Court, Western District of Washington case number 17-5580 RJB. Plaintiff's proposed complaint in that case provided:

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

Terwilleger v. State of Washington, Department of Assigned Counsel, and Grays Harbor County Sheriff/Jail/Court, Western District of Washington case number 17-5580 RJB Dkt. 1-1. He named as Defendants: “State of Washington Department of Assigned Counsel Grays Harbor County Sherriff/Jail/Court.” Id. In the section of the proposed complaint entitled “Relief, ” in that case, Plaintiff stated that he sought an “injunction and [he is] asking for the federal district court in Tacoma to put a stay on [his] current case in Grays Harbor County Case # [no number is listed] and or grant a change of venu [sic] to have case moved to federal distric [sic] court Tacoma.” Id., at 4. Plaintiff also stated that he is “seeking an injunction to have his vehical [sic] released from evidence locker” and “damages in the form of [$]2, 500, 000.00.” Id. Additionally, Plaintiff stated, “[he] would ask for a motion to reopen case 3-17-cv-05360-RJB under 42 U.S.C. Section 1983 claims as part of, or in part or as attachment to or separate from this claim.” Id. (Plaintiff also filed a motion to reopen in 17-5360 RJB, and this motion/statement shall be addressed in the Court's decision on that motion in that case). On August 2, 2017, Terwilleger v. State of Washington, Department of Assigned Counsel, and Grays Harbor County Sheriff/Jail/Court, Western District of Washington case number 17-5580 RJB was dismissed pursuant the Younger v. Harris, 401 U.S. 37 (1971) abstention doctrine, and as a mixed habeas corpus petition and conditions of confinement case. Terwilleger v. State of Washington, Department of Assigned Counsel, and Grays Harbor County Sheriff/Jail/Court, Western District of Washington case number 17-5580 RJB, Dkt. 2.

          The day after the second case was filed, on July 28, 2017, Plaintiff filed a third case, Terwilleger v. State of Washington, and Grays Harbor County, Western District of Washington case number 17-5596 RJB. The proposed complaint in the third case asserted that on September 11, 2016, Plaintiff was arrested and detained at the Grays Harbor County jail “for 202 days with no waiver of rights.” Terwilleger v. State of Washington, and Grays Harbor County, Western District of Washington case number 17-5596 RJB, Dkt. 1-1, at 3. Plaintiff maintained that he wrote the superior court several times that he did not want to waive his speedy trial rights, in Grays Harbor County, Washington Superior Court case number 16-1-408-6. Terwilleger v. State of Washington, and Grays Harbor County, Western District of Washington case number 17-5596 RJB, Dkt. 1-1, at 3. Plaintiff alleged that his lawyer, Ronnie Soriano Jr., moved the superior court to have his trial date continued to May 2, 2017, and the superior court granted the motion over his “concerns.” Terwilleger v. State of Washington, and Grays Harbor County, Western District of Washington case number 17-5596 RJB, Dkt. 1-1, at 3. He stated that he was not released from pre-trial custody until March 31, 2017. Terwilleger v. State of Washington, and Grays Harbor County, Western District of Washington case number 17-5596 RJB, Dkt. 1-1, at 3. As relief, Plaintiff sought a “federal injunction to dismiss with prejudice” Grays Harbor County, Washington Superior Court case number 16-1-408-6, or a change of venue to a Pierce County, Washington Superior Court, King County, Washington Superior Court, or “if possible and perfered [sic] Federal District Court Tacoma.” Terwilleger v. State of Washington, and GraysHarbor County, Western District of Washington case number 17-5596 RJB, Dkt. 1-1, at 4. He sought damages. Terwilleger v. State of Washington, and Grays Harbor County, Western District of Washington case number 17-5596 RJB, Dkt. 1-1, at 3. Plaintiff was also denied IFP ...


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