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Frazier v. Collier

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

October 7, 2019

ISAAC DEPRE FRAZIER JR., Plaintiff,
v.
SCOTT A. COLLIER, et al., Defendants.

          REPORT AND RECOMMENDATION

          Theresa L. Fricke United States Magistrate Judge.

         This matter is before the Court on plaintiff's filing of a motion to proceed in forma pauperis (IFP) and a proposed 42 U.S.C. § 1983 civil rights complaint. Dkts. 1, 3. Plaintiff is proceeding pro se in this matter, which 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). For the reasons below, the Court recommends that plaintiff's complaint be dismissed prior to service pursuant to 28 U.S.C. § 1915A. The Court further recommends that plaintiff's motion to proceed IFP (Dkt. 1) be stricken as moot in light of the recommended dismissal.

         Plaintiff fails to state a claim upon which relief may be granted. First, to the extent plaintiff's complaint seeks to challenge the fact of his custody, his remedy lies in habeas corpus and the Court recommends that these claims be dismissed without prejudice with leave to re-file a 28 U.S.C. §2241 or §2254 habeas petition. Second, the Court recommends that these claims be dismissed without prejudice pursuant to Younger v. Harris 401 U.S. 37, 45, 46 (1971), in light of plaintiff's ongoing state criminal proceedings. The Court recommends that leave to amend these claims be denied because any amendment would be futile.

         BACKGROUND

         Plaintiff alleges the judges presiding in his criminal case, defendants Collier, Fairgrieve, Clark, and Gonzalez, violated his rights by taking “private property” for “public use” and subjecting him to “cruel and unusual punishment.” Dkt. 1-1, 3. Plaintiff alleges that the judicial defendants “used my customer name, ecclesiastical property, and/or corporate entity which is my name all upper case captionalized against me without my consent and authorization to misrepresent me as such.” Id. Plaintiff alleges defendants have had “authority to offer relief and remedy” in various court proceedings but chose otherwise. Id. Plaintiff alleges this has resulted in funds being “withdrawn from Treasury Direct Account without my consent and authorization.” Id. Plaintiff contends the judicial defendants have “committed the crime of forgery, in open court, by signing on behalf of the defendant” despite the fact that he had clearly stated previously “I do not consent to be misrepresented as the defendant.” Id.

         Plaintiff contends that “funds [are] being unlawfully transferred from his personal account” because of defendants' actions. Id. Plaintiff contends defendant Collier also raised an incompetency issue and that both he and defendant Fairgrieve “had me sent to Western State Hospital against my will” to be evaluated. Id. Plaintiff alleges he has been subjected to “cruel and unusual punishment” by the judicial defendants due to their failure to release him from “unlawful imprisonment.” Id. Plaintiff alleges he was shackled and forced to endure a two and a half hour ride in a vehicle to Western State Hospital and was forced to endure an environment of mentally ill patients. Id. Plaintiff alleges defendants Clark, and Gonzalez, who have also presided as judges in his criminal case, also violated his rights by refusing to release him and “using my corporate entity against me without my consent to misrepresent me.” Id.

         Plaintiff alleges defendant Kasey T. Vu, a prosecuting attorney, has violated his rights by refusing to dismiss the charges against him and “signed contracts offered where I am being misrepresented as the defendant.” Id. Plaintiff alleges defendant Jeffrey D. Barrar has acted as a defense attorney on his behalf and “misrepresented him as a corporate entity within an insubstantial contract offered” and has contributed to plaintiff's unlawful imprisonment. Id. He alleges defendant Barrar has represented him without his consent and that he also misrepresented him as the defendant and made it seem as though plaintiff had agreed to go to Western State Hospital. Id. Plaintiff alleges defendant Whitney L. Hauke has also played a role as a defense attorney in his case and has “knowingly … misrepresent[ed] me as Isaac Depre Frazier Jr.” and has contributed to the unlawful imprisonment he has had to endure. Id.

         DISCUSSION

         Pursuant to 28 U.S.C.A. § 1915A,

(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

         Before the Court may dismiss the complaint as frivolous or for failure to state a claim, though, 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.” McGucken v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also Sparling v. Hoffman Constr., Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987). On the other hand, leave to amend need not be granted “where the amendment ...


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