United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR AMEND
RICHARD CREATURA, UNITED STATES MAGISTRATE JUDGE.
DAVESHA COOK, filed a motion to proceed in forma
pauperis, along with a proposed complaint and a proposed
motion for court appointed counsel, currently before this
having reviewed and screened plaintiff's complaint under
28 U.S.C. § 1915(e), the Court declines to consider
plaintiff's motion to proceed in forma pauperis
or for court appointed counsel at this time as
plaintiff's proposed complaint for unlawful arrest does
not state a claim on which relief may be granted.
See Dkt. 1-1; see also 28 U.S.C. §
1915(e)(2)(B)(ii). The Court provides plaintiff leave to file
an amended pleading by December 1, 2017, to cure the
deficiencies identified herein.
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). The Court has broad discretion in resolving the
application, but “the privilege of proceeding in
forma pauperis in civil actions for damages should be
sparingly granted.” Weller v. Dickson, 314
F.2d 598, 600 (9th Cir. 1963), cert. denied 375 U.S.
845 (1963). Moreover, a court should “deny leave to
proceed in forma pauperis at the outset if it
appears from the face of the proposed complaint that the
action is frivolous or without merit.” Tripati v.
First Nat'l Bank & Trust, 821 F.2d 1368, 1369
(9th Cir. 1987) (citations omitted); see also 28
U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis
complaint is frivolous if “it ha[s] no arguable
substance in law or fact.” Id. (citing
Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985);
see also Franklin v. Murphy, 745 F.2d 1221, 1228
(9th Cir. 1984).
pro se plaintiff's complaint is to be construed
liberally, but like any other complaint it must nevertheless
contain factual assertions sufficient to support a facially
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim for relief
is facially plausible when “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
complaint fails to meet this standard. See id. In
her complaint (see Dkt. 1-1), plaintiff attempts to
bring a claim for “unlawful arrest” (see
Dkt. 1, p. 1). However, plaintiff has failed to allege that
any defendant took any specific action against her.
example, plaintiff alleges that in August, 2016, a
"Tacoma police report was written… accusing the
plaintiff of multiple counts of identity theft, theft and
forgery." Dkt. 1-1, p. 1. Plaintiff uses passive tense
and does not identify anyone who allegedly wrote the police
report. See id. In the next sentence, plaintiff
indicates that this “police report was allegedly
‘investigated' and sworn to under the penalty of
perjury by Pierce County prosecutor (Lisa Wegner).”
Id. at 2. Plaintiff appears to be referring to the
declaration for determination of probable cause, which
plaintiff attached to her complaint, in which Lisa Wegner
makes numerous declarations under penalty of perjury. See
id. at 7-10.
plaintiff alleges that a “Tacoma Police Department
Detective was given information through the insurance
commissioner that ultimately implicated plaintiff
falsely…" Id. at 2. Again, plaintiff
uses passive tense and again no actions are alleged by any
particular defendant. See id. Plaintiff also alleges
that "Tacoma Police Department Detective Tim Whitesitt,
[an] insurance commissioner, and Tacoma prosecutor Lisa
Wegner collaborated and conspired to implicate, indict,
arrest, formally charge, and ultimately incarcerate plaintiff
under [a] fabricated police report  using manufactured
probable cause to initiate a criminal judicial process in
violation of the Fourth Amendment." Id. at p.
2. This conclusory allegation is insufficient.
admits that "ultimately, all charges were dropped
against plaintiff, but only after severe mental, emotional
and psychological damage had been done as a result of false,
misleading, manufactured probable cause had been
created….” Id. at p. 3, ¶ 8.
Although plaintiff appears to attempt to allege that some of
the named defendants made "a false statement  
knowing and intentionally, " and appears to attempt to
allege that the defendants "acted in concert…
[to] blatantly submit falsities, " plaintiff does not
specifically identify any particular falsity, and does not
identify any particular defendant who allegedly made any
particular falsity. See Id. at p. 4, ¶¶
contrast, an examination of the declaration for determination
of probable cause attached to plaintiff's complaint
indicates the scenario that likely occurred.
declaration by Lisa Wegner contains the conclusion that
"David Arnold Cook and Davesha W. Cook [plaintiff], did
each commit multiple counts of identity theft, theft and
forgery." Id. at p. 7. This conclusion in the
declaration is made on the basis of the following declared
facts put forth in the declaration:
In August, 2016, Tacoma Police Department (TPD) Detective met
with Tim Whitesitt, a fraud investigator with Bank of
America, regarding fraudulent activity on the accounts of
several Bank of America customers.… DAVID ARNOLD COOK
was seen on surveillance video in several of the fraud
related incidents, and he often was accompanied by ...