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Ziegler v. Washington Department of Corrections

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

July 5, 2018

JEFFREY S ZIEGLER, Plaintiff,
v.
WASHINGTON DEPARTMENT OF CORRECTIONS, Defendants.

          REPORT AND RECOMMENDATION

          THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on plaintiffs commencement of an action on June 11, 2018, proceeding pro se and seeking in forma pauperis status. Dkt. 1. This matter has been referred to the undersigned Magistrate Judge. Mathews, Sec 'y of H.E. W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4).

         Plaintiff has not filed any complaint, but seeks from this Court the appointment of counsel, apparently to represent him before Washington's Board of Industrial Insurance Appeals and before the Washington Supreme Court. For the reasons set forth below, this matter must be dismissed because this Court lacks authority to provide the relief plaintiff seeks. Because no amendment can result in a claim upon which this Court would be empowered to grant the requested relief, the Court recommends that this matter be dismissed with prejudice. In light of this recommended disposition, the Court also recommends denial of plaintiff s in forma pauperis application.

         BACKGROUND

         On June 11, 2018, plaintiff submitted for filing a defective motion to proceed in forma pauperis, together with a "Motion, Order, and Affidavit for Telephonic Hearing" and a "Motion to Appoint Ad Hoc Counsel to Represent Petitioner on All Matters of Law Pertaining to the Litigation in Industrial Appeals." Dkt. 1. He did not file any complaint, nor state any cause of action against any party, and after two deficiency notices from the Clerk of the Court, has still not done so. Dkts. 2, 6.

         The captions of the documents submitted by plaintiff listed the "Department of Corrections Correctional Industries/Dep't of Labor & Industries/WA Attorney General" as the opposing parties, and listed this Court, the Washington State Supreme Court, and the Washington State Board of Industrial Insurance Appeals in the heading identifying the court in which he is proceeding. Dkt. 1. It appears from these documents that plaintiff is seeking counsel to represent him in wholly separate proceedings in different state courts; he specifically identifies a matter pending before the Washington Board of Industrial Insurance Appeals, and more generally seems also to refer to a matter or matters before the Washington Supreme Court. Id.

         Plaintiff subsequently submitted another in forma pauperis application, together with a Petition for Habeas Corpus; this has been docketed as matter C18-5511 RJB-TLF, and is proceeding as a separate matter.

         DISCUSSION

         The Court must dismiss the claims of a prisoner "at any time if the [C]ourt determines" that the action: (a) "is frivolous or malicious"; (b) "fails to state a claim on which relief may be granted"' or (c) "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).

         Ordinarily, before the Court may dismiss the complaint as frivolous or for failure to state a claim, it "must provide the [prisoner] with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal." McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992, overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). However, leave to amend need not be granted "where the amendment would be futile or where the amended complaint would be subject to dismissal." Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (citing Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).

         Plaintiff has not filed any complaint in this matter. Dkt. 1. But even if he had done so, the relief he seeks is beyond the jurisdiction of this Court. Plaintiff seeks the appointment of counsel to represent him before entirely separate tribunals of Washington State, over which this Court has no jurisdiction. This Court "has no authority to appoint counsel for plaintiff in a civil proceeding in state court." Brigaerts v. Cardoza, 952 F.2d 1399 at *1 (9th Cir. 1992). Plaintiff should direct his request for counsel to the courts in which his matters are pending.

         Finally, in light of the Court's recommended disposition of this matter, the Court also recommends denial of plaintiff s in forma pauperis application in this matter.[1]

         CONCLUSION

         Plaintiff has stated no claim upon which relief can be granted. The relief plaintiff seeks is not within the Court's power to grant even if a claim had been properly stated. This is a deficiency that cannot be cured by any amended pleading; therefore dismissal of this action with prejudice for failure to state a claim under 42 ...


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