United States District Court, W.D. Washington, Tacoma
ORDER RENOTING IN FORMA PAUPERIS APPLICATION,
DISMISSING PROPOSED COMPLAINT WITHOUT PREJUDICE, AND TO
SUBMIT A NEW PROPOSED COMPLAINT
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
who proceeds pro se and is currently incarcerated,
requests to proceed in forma pauperis
(“IFP”) in this civil matter alleging federal
question jurisdiction. Pursuant to Amended General Order
02-19, the District Court has referred plaintiff's
application to the undersigned.
claims that various Charles Schwab entities and employees
conspired with his wife-whom he is also suing-to open joint
accounts in his and his wife's names, which allowed her
to drain the accounts of funds that plaintiff alleges were
his separate property. He alleges violations of a myriad of
federal and state laws by eleven identified defendants and
one hundred unknown defendants.
plaintiff relies on federal criminal statutes that do not
provide private causes of action and because he fails to
state cognizable claims of securities fraud, “federal
common law fraud, ” and violation of the Racketeering
Influenced and Corrupt Organizations Act
(“RICO”), plaintiff's proposed complaint does
not sufficiently allege any federal claim upon which relief
could be granted. Nor will this Court exercise supplemental
jurisdiction over his state law claims absent a cognizable
claim based on federal law. Therefore, the undersigned
dismisses plaintiff's proposed complaint from his IFP
application without prejudice. If plaintiff wishes to proceed
with this matter, he must file a proposed amended complaint
that adequately states a claim on or before September
6, 2019. Failure to comply with this Court's
order will result in the undersigned recommending dismissal
of this matter.
who is incarcerated at the Clallum Bay Corrections Center,
initiated this matter by filing an IFP motion in July 2019.
See Dkt. 1. His application includes a proposed
complaint, which brings a variety of claims against Tracy
Simms (his wife), five Charles Schwab corporate entities, two
corporate officers (Charles Schwab and Walter Bettinger II),
a Charles Schwab “Client Advocacy Team, ” Michael
Campion (allegedly the Senior Manager of the Compliance
Department of Charles Schwab Enterprises),
“Daniel” Doe (a Charles Schwab Enterprises
employee), and 100 unknown employees of Charles Schwab
Enterprises. See Dkt. 1-1, at 2-3.
alleges that defendant Simms owed him $20, 000 and that he
and defendant Simms had a prenuptial agreement stating that
all funds earned before their marriage were considered
separate. See Dkt.1-1, at 5, 7, 50. According to
plaintiff, he and defendant Simms agreed to open a
“Joint ‘convenience' Account, ” which
would allow defendant Simms to “withdraw funds [only]
at Plaintiff's direction or for Plaintiff's
benefit.” Dkt. 1-1, at 6-7. Apparently, defendant Simms
had plaintiff's power of attorney at the time that she
went to open the account. See Dkt. 1-1, at 9.
plaintiff alleges that defendant Simms, defendant Doe, and
other, unknown defendant employees instead opened joint
brokerage and bank accounts in plaintiff's and his
wife's names and without his knowledge or authorization
to open joint accounts. See Dkt. 1-1, at 7.
Plaintiff alleges that unlike a “convenience”
account, the joint accounts gave defendant Simms the right to
withdraw plaintiff's funds without his consent or
agreement. See Dkt. 1-1, at 7-8.
alleges that he was unaware of the true nature of the
accounts opened and that defendant Simms not only failed to
repay the existing $20, 000 debt but also withdrew $33,
245.96 of his own, separate money that he transferred to the
accounts. See Dkt. 1-1, at 9. Subsequently,
plaintiff alleges that the defendant companies changed his
address without informing him of the change, causing him to
“lose track of his funds” when he stopped
receiving account statements. Dkt. 1-1, at 11. He alleges
that defendants ignored his requests to change the address
back, allowing defendant Simms to withdraw an additional $5,
000 without plaintiff's knowledge. See Dkt. 1-1,
alleges that the Charles Schwab entity defendants and
defendant Client Advocacy Team received his request to
provide monthly statements and responded by warning defendant
Simms that they would close his accounts-allowing defendant
Simms to “drain” the accounts. See Dkt.
1-1, at 14, 16. Plaintiff alleges that he attempted to
initiate a proceeding in state court for protection of a
vulnerable adult-himself-but that defendants' failure to
provide him with monthly transaction statements thwarted his
attempt. See Dkt. 1-1, at 15, 19.
more requests to have the address changed back and to receive
his financial statements, plaintiff then alleges that he
contacted various state and federal agencies, to no avail.
See Dkt. 1-1, at 25. He claims that defendants made
false statements about plaintiff-namely that he had failed to
disclose that he was incarcerated when he opened the
accounts-to these agencies, causing most of the agencies to
close his complaints without action. See Dkt. 1-1,
at 31. Plaintiff alleges that he wrote to the Charles Schwab
defendants demanding certain disclosures but that they did
not respond. See Dkt. 1-1, at 39-40.
on these allegations, plaintiff seeks thirty million dollars
in damages. See Dkt. 1-1, at 53.
plaintiff wishes to proceed IFP, “[n]otwithstanding any
filing fee, or portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court
determines that . . . the action or appeal . . . (i) is
frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2).
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This requirement demands
“more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint must provide more than “‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action[.]'” Id.
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Moreover, the complaint “must contain