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Cook v. Washington State Insurance Commissioner

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

November 8, 2017

DAVESHA COOK, Plaintiff,



         Plaintiff, 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 Court.

         However, 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.


         A 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).

         A 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.


         Plaintiff's 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.

         For 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.

         Similarly, 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.

         Plaintiff 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, ¶¶ 10, 11.

         In contrast, an examination of the declaration for determination of probable cause attached to plaintiff's complaint indicates the scenario that likely occurred.

         The 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 ...

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