Simpson v. Bird

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [9] 10 MICHAEL D. SIMPSON, CASE NO. 3:24-CV-5832-BHS 11 Plaintiff, v. ORDER RENOTING APPLICATION 12 TO PROCEED IN FORMA PAUPERIS SCOTT BIRD and TJ MARTIN, AND DIRECTING AMENDED 13 COMPLAINT Defendant. [14] 15 The District Court has referred Plaintiff Michael D. Simpson’s pending Application to 16 Proceed In Forma Pauperis (“IFP”) and proposed complaint to United States Magistrate Judge 17 David W. Christel pursuant to Amended General Order 11-22. On October 1, 2024, Plaintiff 18 filed a proposed civil complaint and application to proceed in forma pauperis (“IFP”). See Dkts. 19 1; 1-1. 20 Review of the Complaint. Because Plaintiff filed this proposed complaint pro se, the 21 Court has construed the pleadings liberally and has afforded Plaintiff the benefit of any doubt. 22 See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621 , 623 (9th Cir. 1988). In the 23 proposed complaint, Plaintiff alleges Scott Bird, a criminal justice liaison for the Washington [24] 1 State Department of Fish and Wildlife (“WDFW”), violated Plaintiff’s rights when he moved to 2 have Plaintiff’s fishing license permanently revoked. Dkt. 1-1. Plaintiff also states T.J. Martin, 3 an administrative law judge (“ALJ”) with the Washington State Office of Administrative 4 Hearings, found him guilty of a misdemeanor and revoked his fishing license. Id. Plaintiff states 5 Defendants violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Id. 6 Legal Standard. The district court may permit indigent litigants to proceed IFP upon 7 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915 (a). However, the “privilege 8 of pleading in forma pauperis . . . in civil actions for damages should be allowed only in 9 exceptional circumstances.” Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986). The Court 10 has broad discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 11 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). When the privilege is abused, permission to 12 proceed IFP may be denied. See Demos v. U.S. Dist. Court for Eastern Dist. Of Washington, 925 13 F.2d 1160 , 1160-61 (9th Cir. 1991); see also In re Sindram, 498 U.S. 177, 180 (1991) (“In order 14 to prevent frivolous petitions for extraordinary relief from unsettling the fair administration of 15 justice, the Court has a duty to deny in forma pauperis to those individuals who have abused the 16 system.”); Johnson v. Irby, 2009 WL 1973510 , at *3 (N.D. Fla. July 8, 2009) (“A court may 17 deny IFP status prospectively when the number, content, frequency, and disposition of a 18 litigant’s filings show an abusive pattern.”) (internal quotations omitted). 19 Notwithstanding IFP status, the Court must subject each civil action commenced pursuant 20 to 28 U.S.C. § 1915 (a) to mandatory screening and order the sua sponte dismissal of any case 21 that is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks 22 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915 (e)(2)(B); 23 see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 24 1 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 2 2000) (en banc) (noting that 28 U.S.C. § 1915 (e) “not only permits but requires” the court to sua 3 sponte dismiss an IFP complaint that fails to state a claim). An in IFP complaint is frivolous if “it 4 ha[s] no arguable substance in law or fact.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368 , 5 1369 (9th Cir. 1987) (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also 6 Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). 7 A pro se plaintiff’s complaint is to be construed liberally, but like any other complaint it 8 must nevertheless contain factual assertions sufficient to support a facially plausible claim for 9 relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 , (2009) (citing Bell Atlantic Corp. v. Twombly, 550 10 U.S. 544 , 570 (2007)). A claim for relief is facially plausible when “the plaintiff pleads factual 11 content that allows the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” Iqbal, 556 U.S. at 678 . 13 Unless it is clear a pro se plaintiff cannot cure the deficiencies of a complaint, the Court 14 will provide the pro se plaintiff with an opportunity to amend the complaint to state a plausible 15 claim. See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (“Dismissal 16 without leave to amend is improper unless it is clear, upon de novo review, that the complaint 17 could not be saved by any amendment.”). 18 Plaintiff’s Application to Proceed IFP. Plaintiff states he is unemployed and a review 19 of his Application to Proceed IFP shows he cannot afford the filing fee. See Dkt. 1. 20 Analysis of Plaintiffs’ Claims. Despite his inability to pay, the Court finds Plaintiff’s 21 proposed complaint fails to state a claim upon which relief can be granted. 22 Judicial Immunity. Plaintiff names ALJ Martin as a defendant. “Administrative law 23 judges ... are entitled to quasi-judicial immunity so long as they perform functions similar to [24] 1 judges and prosecutors in a setting like that of a court.” Hirsh v. Justices of Supreme Court of 2 State of Cal., 67 F.3d 708, 715 (9th Cir.1995) (citing Butz v. Economou, 438 U.S. 478 , 511-17 3 (1978)). Here, Plaintiff’s allegations against ALJ Martin arise from when ALJ Martin was acting 4 as the administrative law judge at Plaintiff’s hearing. He is, therefore, entitled to judicial 5 immunity and Plaintiff must show cause why the claims against ALJ Martin should not be 6 dismissed. See Daniels v. Davis, 2008 WL 4681597 , at *2 (W.D. Wash. Oct. 21, 2008) (finding 7 state ALJ had judicial immunity); Read v. Haley, 650 F. App'x 492, 494 (9th Cir. 2016) (finding 8 Oregon district court properly dismissed a claim against a state ALJ based on judicial immunity). 9 Prosecutorial Immunity. Plaintiff also names Scott Bird, the attorney representing the 10 WDFW, as a defendant. Dkt. 1-1. Prosecutors are entitled to absolute immunity from § 1983 11 claims for their quasi-judicial actions as long as those acts are performed within the scope of 12 their authority. See Ashelman v. Pope, 793 F.2d 1072, 1075, 1078 (9th Cir. 1986). A prosecutor 13 is entitled to absolute immunity from a § 1983 action for damages when performing a function 14 that is “intimately associated with the judicial phase of the criminal process.” Imbler v. 15 Pachtman, 424 U.S. 409, 430 (1976). 16 Prosecutorial immunity also shields state officials who perform the “functions of a 17 prosecutor in state administrative proceedings.” Butz v. Economou, 438 U.S. 478, 513 (1978). If 18 a government attorney is “representing the plaintiff or the defendant, or is conducting a civil 19 trial, criminal prosecution or an agency hearing, absolute immunity is ‘necessary to assure that 20 [the attorney] can perform her functions without harassment or intimidation.’ ” Dorsey v. Orloff, [21] 1997 WL 85016 , at *3 (N.D. Cal. Feb. 24, 1997) (citing Fry v. Melaragno, 939 F.3d 832 , 837 22 (9th Cir. 1991) (citation omitted). “The touchstone of prosecutorial immunity is whether the 23 attorney’s actions are ‘intimately’ or ‘closely’ associated with the judicial process – pre-, post-, [24] 1 or during litigation.” Dorsey, 1997 WL 85016 , at *3 (citing Fry, 939 F.2d at 837 and Demery v. 2 Kupperman, 735 F.2d 1139 , 1144 (9th Cir. 1984). 3 Here, Plaintiff alleges Defendant Bird sent Plaintiff a letter providing notice that 4 Plaintiff’s fishing license was being revoked, engaged in discovery, and represented WDFW at 5 the administrative hearing. The allegations in the proposed complaint show Defendant Bird was 6 acting within the scope of his duties, performing functions of a prosecutor during a state 7 administrative proceeding. Therefore, based on the allegations of the proposed complaint, 8 Defendant Bird is entitled to prosecutorial immunity. Plaintiff must show cause why the claims 9 against Defendant Bird should not be dismissed. 10 Failure to State a Claim. Plaintiff alleges Defendants’ conduct violated his Fourth, Fifth, 11 Sixth, and Fourteenth Amendment rights. Dkt. 1-1. Plaintiff, however, provides no explanation 12 regarding how Defendants’ conduct resulted in Fourth, Fifth and Sixth Amendment violations. 13 At most, it appears Plaintiff is alleging a procedural due process violation under the Fourteenth 14 Amendment. To make out a procedural due process claim, a plaintiff must allege (1) a liberty or 15 property interest protected by the Constitution, (2) a deprivation of that interest by the 16 government, and (3) lack of process. Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th 17 Cir. 1993). Regardless of whether Plaintiff has alleged a liberty or property interest protected by 18 the Constitution, Plaintiff has not alleged a lack of process. Dkt. 1-1. The record indicates 19 Plaintiff received written notice of the claims against him, a status hearing related to discovery 20 matters, and an administrative hearing. See id. at 9. As Plaintiff has not alleged a lack of process, 21 Plaintiff has failed to allege a procedural due process violation. 22 Further, Plaintiff alleges laws and policies were not followed when depriving him of his 23 fishing license. Only an authorized, intentional deprivation of property is actionable under the [24] 1 Due Process Clause. Hudson v. Palmer, 468 U.S. 517, 533 (1984). An unauthorized, intentional 2 deprivation of property by a state employee does not constitute a violation of the Fourteenth 3 Amendment if a meaningful post-deprivation remedy for the loss is available under state law. Id. 4 at 534. The State of Washington provides a meaningful post-deprivation remedy for the 5 intentional or negligent loss of property by state agents and employees by allowing for a suit in 6 Superior Court once a person has completed the state’s tort claim process. Jeffries v. Reed, 631 7 F. Supp. 1212 , 1216 (1986). To the extent Plaintiff is alleging he is being deprived of his 8 property based on an unauthorized action, Washington State provides a post-deprivation remedy 9 for the alleged action and, thus, Plaintiff has not alleged a viable claim for relief. 10 As Plaintiff has failed to adequately explain how his Fourth, Fifth, and Sixth Amendment 11 rights were violated and has failed to state a procedural due process claim, the proposed 12 complaint fails to state a claim upon which relief can be granted. 13 Leave to Amend. Unless it is absolutely clear that no amendment can cure the defect, a 14 pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend 15 prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995). At 16 this time, the Court finds it is improbable Plaintiff can cure the deficiencies of his proposed 17 complaint. However, in an abundance of caution, the Court will grant Plaintiff an opportunity to 18 amend his proposed complaint to try to state a claim. 19 Decision on Application to Proceed IFP. A district court may deny leave to proceed in 20 forma pauperis at the outset if it appears from the face of the proposed complaint that the action 21 is frivolous or without merit. Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998), quoting 22 Tripati v. First Nat'l Bank & Trust, 821 F. 2d 1368, 1370 (9th Cir. 1987). Based upon the above [24] 1 analysis of the deficiencies in the proposed complaint, the Court finds it appropriate to re-note 2 Plaintiff’s application to proceed IFP (Dkt. 1) to November 12, 2024. 3 Accordingly, it is hereby ORDERED that: 4 • Plaintiff’s application to proceed in forma pauperis (Dkt. 1) is RENOTED to 5 NOVEMBER 12, 2024; and 6 • Plaintiff’s proposed amended complaint, if any, IS DUE on or before NOVEMBER 12, 7 2024. 8 Dated this 15th day of October, 2024. [9] A [10] David W. Christel 11 United States Magistrate Judge