United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge.
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.
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.
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alleges this has resulted in funds being “withdrawn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.
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.
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.
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
(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.
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 ...