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Herbert v. Snohomish County

United States District Court, W.D. Washington, Seattle

October 3, 2017

ANTHONY HERBERT, Plaintiff,
v.
SNOHOMISH COUNTY, et al, Defendants.

          ORDER DISMISSING ACTION UNDER 28 U.S.C. § 1915(E)(2)(B)

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before 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.

         II. BACKGROUND

         Mr. 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.)

         Mr. 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. (Id.)

         Mr. 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.)

         Mr. 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.)

         In an 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. at 3-4.)

         Mr. 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."[1] (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 cost." (Id.)

         III. ANALYSIS

         Title 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 such relief.

         A 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, the-defendant-unlawfully-harmed-me accusation." Id. (citing Twombly, 550 U.S. at 555); see Fed. R. Civ. P. 8(a).

         Because 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 ยง 1983, Mr. Herbert must allege facts that: (1) the ...


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