United States District Court, W.D. Washington, Tacoma
ORDER DISMISSING PLAINTIFF'S PROPOSED COMPLAINT
WITHOUT PREJUDICE, RENOTING MOTION TO PROCEED IN FORMA
PAUPERIS, AND TO AMEND PROPOSED COMPLAINT
Richard Creatura, United States Magistrate Judge
matter is before the Court on plaintiff's application to
proceed in forma pauperis (“IFP”) and
proposed complaint. See Dkts. 1, 1-1, 1-2. Pursuant
to Amended General Order 02-19, the District Court has
referred plaintiff's application to the undersigned.
Because plaintiff's proposed complaint fails to state a
claim upon which relief can be granted, it is dismissed with
leave to amend. The Court will consider plaintiff's IFP
motion once plaintiff has submitted an adequate proposed
filed an IFP application and proposed complaint on June 12,
2019. See Dkt. 1-1. The Complaint is difficult to
follow, but plaintiff appears to allege that starting on
March 18, 2018, defendant State of Washington Child
Protection Services (“CPS”) trespassed upon
plaintiff's property and stole her child, who she alleges
is her property. Id. at 1. She claims that
defendant's actions violated her civil rights and
“hippa law” and constituted harassment and
perjury. Id. at 1.
appears that defendant placed plaintiff under an
administrative “safety plan” pursuant to the
policies of Washington State Department of Children, Youth,
and Families. See Washington State Dep't of
Children, Youth, & Families, 2331 Child Protective
Services (CPS) Investigation (2018). Plaintiff claims that she is
“removing myself from CPS's saf[e]ty pla[n]”
and that defendant is “now trying to ste[a]l my
property.” Dkt. 1-1, at 2. Plaintiff seeks $80 for
every hour that her child remains in defendant's custody,
$371, 520, 000 in damages, and the return of her
“property.” Id. at 1-2.
seeks to proceed IFP. Therefore, her complaint is subject to
sua sponte dismissal if it fails to state a claim
upon which relief is granted. See 28 U.S.C. §
1915(e)(2). However, because plaintiff is pro se, if
the complaint is subject to dismissal, the Court will afford
her the opportunity to amend her complaint unless it is clear
that no amendment could save the complaint. See Jackson
v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).
Eleventh Amendment states that “the judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the Unites States by Citizens of another state[.]” U.S.
Const. amend. XI. The language of the Eleventh Amendment does
not expressly bar lawsuits brought by citizens against their
own state, but federal courts have held that they cannot
preside over these disputes. Edelman v. Jordan, 415
U.S. 651, 663 (1974).
plaintiff's proposed complaint lists CPS as defendant.
See Dkt. 1-1, at 1. CPS is an agency of the State of
Washington. Following the Eleventh Amendment and subsequent
case law, this Court does not have the authority to resolve
this dispute between plaintiff (a private citizen) and
defendant (a state government agency). Hennessey v. State
of Wash., Dep't of Soc. & Health Servs., 627
F.Supp. 137, 139 (E.D. Wash. 1985); see Bd. of
Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363
(2001). The Eleventh Amendment bars not only her federal
“hippa” claim, but also all of her state law
claims of trespass, harassment, and perjury. Cholla Ready
Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004).
Therefore, plaintiff's complaint is subject to dismissal.
plaintiff wishes to proceed, she must submit a proposed
complaint that adequately states the factual allegations and
legal argument underlying her claims and address why this
case is not barred under the Eleventh Amendment. In addition
to citing constitutional amendments and statutes, plaintiff
should relate her factual allegations to the elements of the
particular type of claim or claims that she intends to bring.
See Ivey v. Bd. of Regents of Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982) (“[A] liberal
interpretation of a civil rights complaint may not supply
essential elements of the claim that were not initially
amended 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 original complaint by reference. The amended
complaint will act as a complete substitute for the original
complaint, and not as a supplement. An amended complaint
supersedes the original complaint. Forsyth v. Humana,
Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled
in part on other grounds, Lacey v. Maricopa Cty., 693
F.3d 896 (9th Cir. 2012). Therefore, the amended complaint
must be complete in itself and all facts and causes of action
alleged in the original complaint that are not alleged in the
amended complaint are waived. Forsyth, 114 F.3d at
1474. The Court will screen the amended complaint to
determine whether it states a claim upon which relief can be
proposed complaint (Dkt. 1-1) is dismissed without prejudice.
If plaintiff submits an adequate proposed complaint, then the
Court will consider her IFP motion.
Clerk shall re-note plaintiff's proposed motion (Dkt. 1)
for consideration on July 26, 2019.
Plaintiff shall file an amended proposed complaint no later
than July 26, 2019. Failure to file an
amended proposed ...