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Johnson v. Rembert

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

October 10, 2019

BRENDA M JOHNSON, Plaintiff,
v.
TERRY LEE REMBERT, Defendants.

          REPORT AND RECOMMENDATION

          Theresa L. Fricke, United States Magistrate Judge.

         This matter has been referred to Magistrate Judge Theresa Fricke. 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 3 and 4. On June 11, 2019, plaintiff filed an application to proceed in forma pauperis and a proposed complaint. Dkt. 1; Dkt. 1-1. In light of the deficiencies in the proposed complaint, the undersigned ordered that plaintiff show cause why the complaint should not be dismissed or file an amended complaint. Dkt. 3. Plaintiff filed a proposed amended complaint. Dkt. 4. For the reasons set forth below, plaintiff's amended complaint remains fatally deficient, and therefore the Court should deny plaintiff's application to proceed in forma pauperis.

         DISCUSSION

         A. Plaintiff's Proposed Amended Complaint

         Plaintiff's amended complaint alleges violations of her constitutionally protected rights and no longer alleges a cause of action for negligence. Dkt. 4 at p. 1. Plaintiff alleges that she is bringing this action against state or local officials pursuant to 42 U.S.C. § 1983 and against federal officials pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dkt. 4 at p. 5. The proposed amended complaint names the following defendants, Terry Lee Rembert (“Rembert”), “Pierce County Sherriff of Correction (presumably Pierce County Sherriff's Department) (“Sherriff's Department”), Jana Stealing (“Stealing”), and the “Department of Social and Health” (presumably the Washington State Department of Social and Health Services) (“DSHS”). Id. at p. 2-3.

         In the section entitled “Statement of Claim, ” plaintiff alleges that she was married to Defendant Rembert in 1989 and she filed for divorce in 1999. Id. at p. 8. Plaintiff alleges that subsequent to divorcing Defendant Rembert, she petitioned for and received custody of their three children. Id. at p. 8, 17. Plaintiff also alleges that she was awarded child support payments, which Defendant Rembert failed to pay despite plaintiff's efforts to collect the purportedly required payments. Id. at p. 9-10, 17.

         Next, plaintiff contends that Defendant Rembert committed fraud on the court by making false allegations in proceedings to remove the children from plaintiff's custody and to vacate the award of child custody. Id. at p. 8-9, 18. Plaintiff also alleges that Defendant Rembert made a deal with “Prosecuting Attorney Rebecca Fox” wherein Rembert and Fox reached a settlement without plaintiff's knowledge. Id. at p. 8.

         Plaintiff does not explain what deal Defendant Rembert and Rebecca Fox allegedly reached, why plaintiff would need to be notified of any settlement or how it relates to the current litigation. Next, plaintiff contends that Defendant Rembert initiated proceedings to take custody of their children without serving plaintiff. Id. at p. 8, 10. Plaintiff expressly states that, “because Terry [Rembert] did not serve the petition within 90 days of filing the petition to modify child support under the terms of the child support order, the court erred in not entering an order of volunteer [sic] dismissal with a motion to dismiss.” Id. at p. 10, 17. Plaintiff further contends that the court erred by not dismissing Defendant Rembert's petition to change custody for failure to file within the statute of limitation and for failure to properly serve plaintiff. Id. at p. 10.

         Next, plaintiff alleges that a DSHS employee named Jana Sterling (presumably Defendant Stealing) failed to report a crime for obstruction of justice or investigate allegations which caused harm to plaintiff. Id. at p.14. Plaintiff provided no factual allegations explaining how Defendant Stealing failed to report a purported crime or failed to investigate any allegations. Further, plaintiff alleges that the DSHS improperly took taxes from her checks and that she reported this alleged error. Id. at p. 15.

         Finally, in addition to the above allegations, plaintiff also makes conclusory allegations that the defendants violated her rights under the First, Fourth, Fifth, and Fourteenth Amended of the United States Constitution. Id. at p. 5-7, 12, 13, 17.

         B. Standard of Review of a Proposed Complaint

         The Court must dismiss the complaint of an individual proceeding in forma pauperis “at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) “fails to state a claim on which relief may be granted”' or (c) “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).

         Pursuant to Federal Rule of Civil Procedure (FRCP) 8(a), a pleading that states a claim for relief must contain:

(1) A short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs ...

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