United States District Court, W.D. Washington, Seattle
ORDER DISMISSING ACTION UNDER 28 U.S.C. §
L. ROBART UNITED STATES DISTRICT JUDGE.
the court is pro se Plaintiff Anthony Herbert's
complaint against various defendants (Compl. (Dkt. #1-1)) and
Magistrate Judge Mary Alice Theiler's order granting Mr.
Herbert in forma pauperis ("IFP") status
and recommending that the court review his complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B) (IFP Order (Dkt. # 3) at
1). Under 28 U.S.C. § 1915(e), district courts have
authority to review IFP complaints and must dismiss them if
"at any time" it is determined that a complaint is
frivolous, malicious, fails to state a claim on which relief
may be granted, or seeks monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2);
see also Id. § 1915A(b)(1); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (clarifying
that § 1915(e) applies to all IFP proceedings, not just
those filed by prisoners). As discussed below, Mr.
Herbert's complaint falls within the category of
pleadings that the court must dismiss.
Herbert sues Snohomish County, the Snohomish County Sheriffs
Department, the Everett Police Department, the Bank of
America, "Deputy Wirth" of the Snohomish County
Sheriffs Department, "Sgt. Hart" of the Snohomish
County Sheriffs Department, and "Judge Lee Tinney,
" a Court Commissioner of the Snohomish County Superior
Court. (Compl. at 2.) Mr. Herbert's allegations stem from
an incident on April 2, 2017, while he was traveling on a
public transit bus in Everett, Washington. (See id.)
Herbert alleges that the incident began when a man exiting
the bus assaulted him as he tried to board the bus. (See
id.) Three more men allegedly assaulted Mr. Herbert on
the back of the bus. (Id.) Mr. Herbert claims that
he exited the bus "after using a self-defense move to
break free from being held." (Id.) At this
point, Mr. Herbert complains that "[t]he bus
paused" for "3 minutes when it was only supposed to
be. there for 15 seconds." (Id.) Mr. Herbert
then called the police to report his assailants and alleges
that he was approached by an "unknown" Everett
police officer at gun point. (Id.) The unknown
Everett officer then allegedly forced Mr. Herbert to sit on
the ground while the three assailants were let go.
Herbert then claims that the Snohomish County Sheriffs
Department took over the investigation. (Id. at
2-3.) Mr. Herbert complains that he was cited for trespass
and banned from the Everett Transit, Community Transit and
Sound Transit systems for 30 days. (Id. at 3.) At
his subsequent court hearing that he was unable to attend,
Mr. Herbert complains that Deputy Wirth "said that [Mr.
Herbert] was the aggressor although he made no attempts to
investigate." (Id.) Mr. Herbert claims that he
then filed a complaint with the Snohomish County Sheriffs
Department, to which Sergeant Hart allegedly responded that
"he did not know the entire story" but still
accused Mr. Herbert "of being the aggressor [and]
upholding the citation of trespass." (Id.) Mr.
Herbert asserts that he wished to appeal this decision but
was denied. (Id.)
Herbert next complains that the Bank of America
("BOA") branch refused to turn over its video
surveillance footage of the incident. (Id.) Mr.
Herbert asserts that he "called BOA over 30 times in
full[, ] left messages that were not rerurned[, ] was yelled
at[J hung up on[, ] and promised call backs, " but still
has "not received the video footage that [he] requested
pursuant to Rule 34 of the Superior Court Civil Rules of
Washington State." (Id. at 4.)
effort to secure this footage, Mr. Herbert filed a civil
complaint against BOA in Snohomish County Superior Court.
(Id. at 3.) In that proceeding, Mr. Herbert claims
to have filed two motions to compel and a contempt motion
"due to BOA's lack of respect for the American
Judicial System." (Id.) On July 16, 2017,
Commissioner Lee B. Tinney allegedly denied Mr. Herbert's
motion to hold BOA in contempt "without ever reading
[his] motion or [his] proposed order." (Id.)
Mr. Herbert complains that Commissioner Tinney "went on
to write a two-page order of her own stating that the court
did not have jurisdiction o[f] [his] case ... in furtherance
of a conspiracy to cover up the crimes and make it so BOA
would not have to preserve the footage." (Id.
Herbert alleges that Snohomish County and Snohomish County
Sheriffs Department are "guilty of Retaliation, Civil
Conspiracy, Civil Corruption, Civil Cover UP; [sic] State
Torts of Negligence, [and]
Discrimination." (Id. at 4.) He further alleges
that BOA, the Everett Police Department, Deputy Wirth,
Sergeant Hart, and Commissioner Tinney are "guilty of
Retaliation, Civil Conspiracy, Civil Corruption, Civil Cover
UP; [sic] [and] State Tort of Negligence." (Id.
at 4-5.) As a remedy, Mr. Herbert seeks $500, 000 in
compensatory damages, $500, 000 in punitive damages, and $25,
000 in nominal damages, as well as "cost and fees of
this suit including but not limited to investigatory
28 U.S.C. § 1915(e)(2)(B) authorizes a district court to
dismiss a claim filed IFP "at any time" if it
determines: (1) the action is frivolous or malicious; (2) the
action fails to state a claim; or (3) the action seeks relief
from a defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B). The court concludes that Mr.
Herbert's complaint appears frivolous, fails to state a
claim, and seeks relief from a defendant who is immune from
complaint is frivolous when it presents an inarguable legal
conclusion or fanciful factual allegations. See Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Although an IFP
complaint may not be dismissed simply because the court finds
the plaintiffs allegations unlikely, a finding of factual
frivolousness is appropriate when the facts alleged rise to
the level of the irrational or the wholly incredible.
Denton v. Hernandez, 504 U.S. 25, 33 (1992). An IFP
complaint must also contain factual allegations "enough
to raise a right to relief above the speculative level."
Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The court need not accept as true a legal conclusion
presented as a factual allegation. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Although the pleading
standard announced by Federal Rule of Civil Procedure 8 does
not require "detailed factual allegations, " it
demands more than "an unadorned,
Id. (citing Twombly, 550 U.S. at 555);
see Fed. R. Civ. P. 8(a).
Mr. Herbert is a pro se plaintiff, the court must
construe his pleadings liberally. See McGuckin v.
Smith,974 F.2d 1050, 1055 (9th Cir. 1992). Mr. Herbert
does not indicate the law under which he brings his claims.
(See generally Compl.) However, under a liberal
construction, Mr. Herbert appears to be attempting to bring a
42 U.S.C. § 1983 action against the various state
officials and local government entities, and various
state-law claims against BOA. See Am. Mfrs. Mut. Ins. Co.
v. Sullivan,526 U.S. 40, 49-50 (1999). Section 1983
requires that the defendant commit "an affirmative act,
participate in another's affirmative acts or omit to
perform an act which he is legally required to do that causes
the deprivation of which the complaint is made."
Johnson v. Duffy,588 F.2d 740, 743 (9th Cir. 1978).
Thus, to state a claim under § 1983, Mr. Herbert must
allege facts that: (1) the ...