United States District Court, W.D. Washington, Seattle
ORDER OF DISMISSAL
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court sua sponte on the
Court's Order to Show Cause, Dkt. #5, and Order Re:
Response to Order to Show Cause, Dkt. #8. Pro se
Plaintiff William McKoby has been granted leave to proceed
in forma pauperis in this matter. Dkt. #3. The
Complaint was posted on the docket on October 17, 2017. Dkt.
#4. Summonses have not yet been issued.
McKoby brings this action against Defendants Glen Post and
the internet service provider CenturyLink. Dkt. #4 at 1. The
Complaint indicates that Mr. McKoby's “dear
friend” and “co-plaintiff” Ms. Whitney
McCoy has been “criminally/fraudulently abused”
by Defendants via “acts of Criminal
Conspiracies.” Id. However, Ms. McCoy has not
signed the Complaint or otherwise appeared as a plaintiff in
this matter, and is allegedly dead. See id. at 2. It
appears from the Complaint that Mr. McKoby intends to
represent Ms. McCoy's estate.
to the Complaint, Ms. McCoy stated to Mr. McKoby that she
requested help from CenturyLink with “internet modem
services, ” and “how to set up and use the modem
and internet, ” did not receive adequate customer
service, and became “[p]hysically & emotionally
& mentally destroyed.” Id. at 2.
CenturyLink “continually extorted money from [her]
bank… over $5000… for over two years for
internet service [she] never used.” Id. The
Complaint alleges that Defendants have “moral blame
culpable of Homicide against Ms. Whitney McCoy.”
McKoby also pleads that Defendants have violated him
“emotionally/financially/ mentally through extortion,
” citing as examples that “CENTURYLINK et. al 2X
sent the modem to the incorrect address, ” and that
CenturyLink added an erroneous $77 charge, removed it, and
added an erroneous $20 charge. Id. at 4-5. Mr.
McKoby has apparently sued Defendants in state court on these
facts. Id. at 5. According to the Complaint, which
cites the docket, CenturyLink's motion to dismiss was
granted, Mr. McKoby's motion for reconsideration was
denied, and he appealed to the state Court of Appeals.
Id. at 8. Defendants' allegedly improper
behavior in that state court action make up a portion of this
Complaint, and Plaintiff accuses Defendants' counsel of
violating several criminal laws. Id. at 5-9.
Mr. McKoby includes block quotes from multiple federal and
state statutes, he does not list out separate causes of
action or connect the above facts coherently to the cited
statutes allegedly violated. He has included a clear,
separate section labeled “Plaintiffs Demand.”
Id. at 10. Mr. McKoby seeks a “WRIT FOR
PREPARATION OF DISCOVER.” Id. He also seeks
$1, 050, 000.00, or, in the alternative, “full phone
service, and internet as has been, at $22.83 per month in
total for life - FIRM.” Id.
October 18, 2017, the Court issued an Order to Show Cause
directing Plaintiff to write a short and plain statement
telling the Court (1) the separate causes of action upon
which his claims are based, (2) how Defendants violated each
of those laws causing harm to Plaintiff, (3) why this Court
has jurisdiction over these claims, (4) why these claims are
not duplicative of the underlying state court action, and (5)
why this case should not be dismissed as frivolous. Dkt. #5
at 3-4. Plaintiff originally had until November 8, 2017, to
October 23 and 25, 2017, Plaintiff filed two identical
Responses. Dkts. #6 and #7. On October 27, 2017, the Court
issued an Order finding that these Responses did not provide
the above requested details. Dkt. #8 at 2. The Court
permitted Plaintiff “to file one additional Response to
the Court's [Show Cause] Order by November 8,
2017.” Plaintiff failed to file an additional Response
to the Court's Order to Show Cause.
Court will dismiss a Complaint at any time if the action
fails to state a claim, raises frivolous or malicious claims,
or seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2)(B).
Court has reviewed the Complaint and finds that it does not
support its claims with specific facts presented in a clear
and understandable manner. Mr. McKoby's allegations are
extremely difficult to follow with unconnected facts and
vague accusations of crime. It is unclear from the Complaint
how Mr. McKoby can legally represent Ms. McCoy's estate,
or how Defendants can be charged by Plaintiff with violations
of criminal law. Most importantly, it is unclear to the Court
how the facts as presented in this case-poor customer
service, erroneous charges on an internet bill-could
constitute extortion or fraud. The Court notes Plaintiff has
not met the heightened pleading standard for fraud under
Federal Rule of Civil Procedure 9(b). Even if Mr. McKoby
could plead extortion or fraud, the Court lacks subject
matter jurisdiction without an applicable federal statute.
Finally, because an underlying action has already been
litigated by these parties on the merits in state court, this
case could easily be dismissed under the doctrine of res
judicata. Any allegations of improper behavior by
Defendants' counsel in the underlying action are properly
brought before that state court judge.
all of the above, Plaintiff's Complaint fails to state a
claim, is frivolous and malicious, and dismissal is therefore
warranted. See 28 U.S.C. § 1915(e)(2)(B).
Court notes that Plaintiff previously filed an
“Affidavit of Prejudice, ” which was addressed by
this Court on October 27, 2017, and November 1, 2017. Dkts.
#8 and #9. The Court declined to recuse. Plaintiff then filed
a subsequent “Affidavit of Prejudice” on November
2, 2017. Dkt. #10. Because this was not filed as a motion, it
was not placed on the Court's motion calendar. As noted
previously by the Court, Plaintiff “seems to confuse
the recusal standard in this court with the one that applies
in state court.” Dkt. #9 at 2. Although the Court has
already previously declined to recuse, in an abundance of
caution, the Court will interpret Plaintiff's second
Affidavit of Prejudice as a motion to recuse. Plaintiff's
basis for seeking recusal is the fact that “after the
Plaintiff filed the complaint against RSM the Federal U.S.
Marshals paid the Plaintiff a visit as his home where State
Law is posted ‘NO TRESPASSING' RCW
9A.52.070.” Dkt. #10 at 1. Plaintiff believes the
undersigned judge is responsible for this visit and that this
demonstrates bias. Plaintiff also “disagrees”
with the Court's legal analysis in this case and argues
that this indicates bias. Id. at 2.
this Court's Local Rules, this motion is first reviewed
by the challenged Judge and then referred to another judge
for review. LCR 3(e). Pursuant to 28 U.S.C. § 455(a), a
judge of the United States shall disqualify himself in any
proceeding in which his impartiality “might reasonably
be questioned.” Federal judges also shall disqualify
themselves in circumstances where they have a personal bias
or prejudice concerning a party or personal knowledge of
disputed evidentiary facts concerning the proceeding.
See 28 U.S.C. § 455(b)(1). “[A]
judge's prior adverse ruling is not sufficient cause for
recusal.” United States v. Studley, 783 F.2d
934, 939 (9th Cir. 1986); see also Taylor v. Regents of
Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993)
(“To warrant recusal, judicial bias must stem from an
Court finds that Plaintiff fails to indicate a reasonable
basis to question impartiality. Accordingly, the undersigned