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Comstock v. State of Washington Child Protective Services

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

August 27, 2019



          J. Richard Creatura United States Magistrate Judge.

         The District Court has referred this matter to the undersigned pursuant to General Order 02-19. Before the Court are plaintiff's application to proceed in forma pauperis (Dkt. 1), Proposed Amended Complaint (Dkt. 5), and Motion for Default (Dkt. 8).

         On June 26, 2019, this Court determined that plaintiff's initial complaint failed to state a claim and granted plaintiff leave to amend her complaint. See Dkt. 2. On July 24, 2019, plaintiff timely submitted a Proposed Amended Complaint. Dkt. 5. On August 15, 2019, plaintiff filed a Motion for Default. Dkt. 8. Curiously, defendant has appeared in this matter despite the lack of an operative complaint, issuance of a summons signed by the clerk, and proper service. See Dkts. 3, 4, 6, 7; see also Fed. R. Civ. P. Rules 4 and 5.

         Because plaintiff seeks to proceed IFP, 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).

         Plaintiff's proposed amended complaint appears to state claims related to her child being removed from her custody by Child Protective Services. The amended complaint does not state a valid claim for relief because plaintiff appears to use a State of Washington form to file her complaint, does not make a short and plain statement of her claim, and does not properly name the persons who allegedly committed the harms for purposes of a § 1983 claim. Nonetheless, because plaintiff's proposed amended complaint appears to attempt to correct the errors from her initial complaint, this Court again grants plaintiff leave to amend her complaint.


         I. Form of Complaint

         The first page of plaintiff's amended complaint appears to use a form for the District Court at Pierce County, State of Washington. See Dkt. 5 at 1. To the extent that plaintiff intends to file a claim with the State of Washington, rather than in a federal court, plaintiff must submit her claim to the proper court. To file a claim in federal court, plaintiff must direct her claims to the federal district court and must allege a claim that can be brought in federal court. The proper forms and information for pro se filers, including a pro se handbook, can be found on the district court's website at

         At page eight of plaintiff's amended complaint, plaintiff appears to use the proper form for United States District Court for the Western District of Washington, however, the pages of the document appear to be out of order. Dkt. 5 at 8. In her third amended complaint, plaintiff should ensure that the pages of the document are in the proper order.

         II. Jurisdiction

         Plaintiff states that she has “the right to invoke common law.” Dkt. 5 at 20. Only three types of cases may be filed in federal court: (1) Cases where the United States is either the plaintiff or defendant; (2) Cases brought under federal laws; and (3) Cases where the parties reside in different states. Plaintiff also appears to allege a § 1983 civil rights claim, which is based on the “federal question statute, 28 U.S.C. § 1331, which grants federal district courts original jurisdiction over cases ‘arising under the Constitution, laws, or treaties of the United States.'” Wright v. Associated Ins. Companies, Inc., 29 F.3d 1244, 1250 (7th Cir. 1994) (quoting 28 U.S.C. § 1331). The requirements for bringing a § 1983 claim are discussed further below.

         III. Defendants and Claims

         Plaintiff appears to name as defendant the State of Washington Child Protective Services (“CPS”) (see Dkt. 5 at 12), as well as multiple individually named CPS employees, several public defenders, and several case workers and guardians ad litem. Dkt. 5 at 9-11.

         Plaintiff states the following claims: “trespassing, stealing property, violating civil right, perjury fraud, [sic] neglected of my property, [denied] right for fair [hearing], and abuse of my property[.]” Dkt. 5 at 11. It appears that plaintiff's “property” refers to her child who was removed from her care by Washington State Child Protective Services. See Dkt. 5 at 20 (“my mother she helped cps steal my property. . . [and] they said they would release my property to me and we even did a safety plan . . . my property was still in the hospital”). Plaintiff appears to claim that an unnamed female committed perjury and fraud by lying on paperwork that plaintiff used illegal substances to induce a judge to sign a court order to remove plaintiff's child from her ...

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