United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Theresa L. Fricke, United States Magistrate Judge.
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.
Plaintiff's Proposed Amended Complaint
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.
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.
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.
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
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.
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.
Standard of Review of a Proposed Complaint
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).
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 ...