United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO REOPEN CASE AND APPLICATION FOR
COURT APPOINTED COUNSEL
J. BRYAN, United States District Judge
matter comes before the Court on Plaintiff's
“Motion to Re-Open Case” and Application for
Court Appointed Counsel. Dkt. 11. The Court has considered
the motion and application, relevant record, and the
remainder of the file herein.
15, 2017, Plaintiff filed a proposed civil complaint and an
application to proceed in forma pauperis
(“IFP”), that is, without paying the filing fee
for a civil case. Dkt. 1. Plaintiff was informed by the Clerk
of the Court that his IFP application was incomplete, he was
sent a new application, and given an opportunity to file an
amended application. Dkt. 3. Plaintiff was informed that
failure to fill out the entire application may result in
dismissal of the case. Id. On June 5, 2017,
Plaintiff filed the first page of an amended application.
20, 2017, the Court reviewed the proposed complaint in this
matter. Dkt. 6. Plaintiff was notified that the proposed
complaint was improperly filed as a mixed petition; that is,
it appeared to challenge the validity of a felony conviction
under habeas corpus, 28 U.S.C. § 2254 (although it is
not clear he is in custody), and also attempted to assert
claims regarding the conditions of his confinement pursuant
to 28 U.S.C. § 1983. Id. Plaintiff was granted
until July 21, 2017 to file a proposed amended complaint
clarifying whether he intended to prosecute this case as a
habeas corpus petition or as a § 1983 case. Id.
19, 2017, Plaintiff filed a proposed Amended Complaint (Dkt.
9). Like his first proposed complaint, this pleading was
difficult to follow. Plaintiff again asserted claims related
to the conditions of his confinement and claims that either
challenged the fact or duration of a conviction or related to
ongoing criminal proceedings. Id. Plaintiff asserted
that he raised his “access to the courts concerns,
” access to proper medical treatment (including mental
health competency assessments), and other conditions of
confinement with the “superior court” within the
last year. Id. He also discussed speedy trial
rights, the competency of counsel and evidentiary issues.
Id. Plaintiff sought monetary relief and appeared to
seek relief related to the validity of his conviction.
24, 2017, this case was dismissed without prejudice and
Plaintiff's applications to proceed IFP and for court
appointed counsel were stricken. Dkt. 10. That order
Plaintiff has failed clarify his intentions regarding how he
intends to prosecute this case, whether as a conditions of
confinement case under 42 U.S.C. § 1983 or a habeas
corpus case under 28 U.S.C. §2254, as ordered in the
Court's June 20, 2017 order. Plaintiff's newly filed
proposed Amended Complaint (Dkt. 9) shares the same defects
as his initial proposed Complaint (Dkt. 1-1). The undersigned
adopts the prior reasoning regarding the impermissibility of
the proposed Complaint as a mixed petition and the other
legal deficiencies discussed therein (Dkt. 6, at 2-7) in
regard to Plaintiff's proposed Amended Complaint (Dkt.
9). Further, portions of the claims appear to relate to
current criminal proceedings in the state courts. There is no
showing that this Court has jurisdiction to consider such
claims. This case should be dismissed without prejudice.
Plaintiff is free to file a case again, but should be mindful
that he must separate his claims, and address the
jurisdictional and other issues raised in the June 20, 2017
order or again will be subject to dismissal.
Dkt. 10, at 3-4.
27, 2017, Plaintiff filed the instant pleading on a form
entitled Application for Court Appointed Counsel, with a
handwritten notion “Motion to ReOpen.” Dkt. 11.
In the caption, the defendant is identified as: “State
of Washington Depart [sic] of Assigned Counsel Grays Harbor
County.” Id. Plaintiff asserts in this
pleading that he was granted IFP in this case (he was not).
Id. He states that he has “contacted over 20
attorneys via email most are to [sic] busy or don't
handle federal [unreadable], or just don't answer.”
Id., at 2. Plaintiff states that he also contacted
the “Washington State Human Rights they said they
don't' do these kinds of claims where a jail is
involved.” Id. Plaintiff provides no argument
or reasoning as to why the case should be reopened.
same day, Plaintiff filed another application to proceed IFP
and proposed “civil rights complaint under 42 U.S.C.
§ 1983, ” naming as defendants “State of
Washington Department of Assigned Counsel Grays Harbor County
Sherriff/Jail/Court.” Terwilleger v. State of
Washington, et. al., Western District of Washington case
number 17-5580 RJB. Plaintiff filed a third and fourth case,
and like the second case, 17-5560, he attempted to raise
claims related to either a past conviction or current
criminal proceedings. Terwilleger v. State of Washington,
et. al., Western District of Washington case number
17-5580 RJB; Terwilleger v. State of Washington, and
Grays Harbor County, Western District of
Washington case number 17-5596 RJB and Terwilleger v.
Soriano, Western District of Washington case number
17-5624 RJB. All three cases were dismissed sua
August 14, 2017, the Court renoted Plaintiff's Motion to
Re-Open Case and Application for Court Appointed Counsel in
this case in order to give Plaintiff another opportunity to
file a proposed complaint “that DOES
NOT raise any claim related to past criminal
convictions or current criminal proceedings IN ANY
FORM on or before August 25,
2017.” Dkt. 12. He was notified that
“failure to do so will likely result in denial of the
motion to re-open this case.” Id.
then proceeded to file a series of letters, first indicating
that he had recently been tried and convicted of a crime, and
there was an outstanding warrant for his arrest (Dkt. 13),
then indicating that he was going to turn himself in (Dkt.
14) and lastly, that he is now in custody at Grey's
Harbor County, Washington Jail (Dkts. 15 and 16). Plaintiff
explains that he intends to pursue this case as a civil
rights case under 42 U.S.C. § 1983, but no longer has
his notes or any of the court forms. Dkts. 15 and 16. He asks
the Clerk of the Court to send him forms, and reiterated his
desire that counsel be appointed for him. Id.
Plaintiff further requests that the Court copy all the
pleadings filed in the case and send them to his caregiver in
Redmond, Washington. Id.
to Re-Open Case and Application for Court Appointed
again provides no justification to reopen this case. However,
in consideration of Plaintiff's pro se status,
the events of the last month, and his indication that he
wants to proceed in this case as a § 1983 case,
Plaintiff's Motion to Re-Open Case and Application for
Court Appointed Counsel should be renoted to September 29,
2017. The Clerk of the Court should be directed to send
Plaintiff the form § 1983 complaint. Plaintiffs proposed
amended complaint, if any, should be ...