United States District Court, W.D. Washington, Tacoma
ORDER TO AMEND PROPOSED COMPLAINT AND RENOTING MOTION
TO PROCEED IN FORMA PAUPERIS
Richard Creatura, United States Magistrate Judge.
Brian Terwilleger requests leave to proceed in forma
pauperis (“IFP”) in this matter, which the
District Court has referred to the undersigned. See
Dkt. 8. The undersigned declines to grant plaintiff's IFP
motion unless plaintiff files a second amended proposed
complaint that adequately states a claim upon which relief
can be granted.
initiated this matter by filing an IFP application, which
included a proposed complaint for violation of civil rights.
See Dkt. 1-1, at 1. The District Court denied
plaintiff's application because his proposed complaint
failed to state a claim upon which relief could be granted.
See Dkt. 4, at 2-3. Plainitff then filed a
“proposed motion for civil contempt, ” which
appears to be his amended proposed complaint. See
district court may permit indigent litigants to proceed IFP
upon completion of a proper affidavit of indigency.
See 28 U.S.C. § 1915(a). However, the
“privilege of pleading in forma pauperis . . .
in civil actions for damages should be allowed only in
exceptional circumstances.” Wilborn v.
Escalderon, 789 F.2d 1328 (9th Cir. 1986). Moreover, the
court has broad discretion in denying an application to
proceed IFP. Weller v. Dickson, 314 F.2d 598 (9th
Cir. 1963), cert. denied 375 U.S. 845 (1963). A
federal court may dismiss sua sponte pursuant to
Fed.R.Civ.P. 12(b)(6) when it is clear that the plaintiff has
not stated a claim upon which relief may be granted. See
Omar v. Sea Land Serv., Inc., 813 F.2d 986, 991 (9th
Cir. 1987) (“A trial court may dismiss a claim sua
sponte under Fed.R.Civ.P. 12(b)(6) . . . . Such a
dismissal may be made without notice where the claimant
cannot possibly win relief.”).
plaintiff's amended proposed complaint continues to fail
to state a claim upon which relief can be granted. It is
unclear whether plaintiff intends to bring a cause of action
under 42 U.S.C. § 1983 for a civil rights violation, as
plaintiff initially alleged (see Dkt. 1-1), to
institute a “civil contempt action, ” or to take
some other action.
plaintiff seeks to bring a claim for civil contempt, his
complaint is deficient because “‘there is no such
thing as an independent cause of action for civil
contempt.'” D. Patrick, Inc. v. Ford Motor
Co., 8 F.3d 455, 459 (7th Cir. 1993) (quoting
Blalock v. United States, 844 F.2d 1546, 1550 (11th
Cir. 1988) (per curiam)); see also 4 Fed. Prac.
& Proc. Civ. § 1017 (4th ed. 2019) (“Civil
contempt proceedings are considered to be a part of the
action that is the source of the order that is the subject of
plaintiff intends to bring a § 1983 action, it is
inadequate because a state agency like defendant is not a
“person” for § 1983 purposes. See
Howlett v. Rose, 496 U.S. 356, 365 (1990); Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
Thus, if plaintiff intends to bring a § 1983 action,
plaintiff must identify a proper defendant or defendants, in
addition to specifically articulating the other elements
required for relief under § 1983. See Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991)
(“Traditionally, the requirements for relief under
[§] 1983 have been articulated as: (1) a violation of
rights protected by the Constitution or created by federal
statute, (2) proximately caused (3) by conduct of a
‘person' (4) acting under color of state
plaintiff intends to pursue this action, he must file a
second amended proposed complaint with a short, plain
statement telling the Court: (1) the constitutional right
that plaintiff believes was violated; (2) the name or names
of the person or persons who violated the right; (3) exactly
what each individual or entity did or failed to do; (4) how
the action or inaction of each individual or entity is
connected to the violation of plaintiff's constitutional
rights; and (5) what specific injury plaintiff suffered
because of the individuals' conduct. See Rizzo v.
Goode, 423 U.S. 362, 371-72, 377 (1976).
shall present the second amended proposed complaint on the
form provided by the Court, if he intends to file a §
1983 action. The second amended proposed complaint must be
legibly rewritten or retyped in its entirety, it should be an
original and not a copy, it should contain the same case
number, and it may not incorporate any part of the other
proposed complaints by reference. The second amended proposed
complaint will act as a complete substitute for any prior
proposed complaint, and not as a supplement. An amended
complaint supersedes all previous complaints. Forsyth v.
Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997)
overruled in part on other grounds, Lacey v. Maricopa
County, 693 F.3d 896 (9th Cir. 2012). Therefore, the
second amended proposed complaint must be complete in itself
and all facts and causes of action alleged in any other
proposed complaint that are not alleged in the second amended
proposed complaint are waived. Forsyth, 114 F.3d at
plaintiff submits an adequate proposed complaint, then the
Court will consider his motion to proceed IFP. The Clerk
shall renote plaintiff's IFP motion for consideration on
June 21, 2019 and shall provide plaintiff with the form for a
§ 1983 complaint. Plaintiff shall file a second amended
proposed complaint no later than June 21, 2019. Failure to
file the amended proposed complaint will result in the
undersigned recommending denial of ...