Opinion
CASE NO. 3:18-cv-05799-BHS-TLF
11-20-2018
ATALAMI TILI, Plaintiff, v. PIERCE COUNTY JAIL, LAKEWOOD POLICE DEPARTMENT, CPS, Defendants.
REPORT AND RECOMMENDATION Noting Date: December 7, 2018
This matter is before the Court on plaintiff's proposed civil rights complaint under 42 U.S.C. § 1983 (Dkt. 1-1). Because plaintiff has not paid the Court filing fee or submitted a proper in forma pauperis ("IFP") application, and because of deficiencies in the proposed complaint, the undersigned recommends the Court dismiss the complaint, with leave to file an amended complaint upon payment of the filing fee.
PROCEDURAL HISTORY
On October 1, 2018, plaintiff filed her proposed complaint, but did not submit an IFP application or pay the required filing fee. Dkt. 1. On October 4, 2018, the Clerk sent plaintiff a letter informing her of the IFP deficiency, and directing her to submit a proper IFP application or pay the filing fee by November 5, 2018. Dkt. 2. The Clerk also attached an IFP application form to that letter. Id.
On October 17, 2018, the Court received a copy of plaintiff's prison trust account and a letter from plaintiff stating that the Washington Corrections Center for Women - where she is presently incarcerated - does not have the IFP application form, and requesting a copy of that form. Dkt. 3. However, there is no indication plaintiff did not receive the IFP application form sent to her by the Clerk on October 4, 2018. To date, plaintiff has not submitted a completed IFP application form or paid the filing fee.
PLAINTIFF'S PROPOSED COMPLAINT
In her proposed complaint, plaintiff requests help with a lawsuit against Child Protective Services ("CPS") for the removal of her children from her custody, alleging she was blackmailed - by CPS, Pierce County Jail or both - "into taking a plea." Dkt. 1, p. 4. Plaintiff also complains that CPS took and interrogated her children "without any parental rights," and asks for assistance in getting her and her children's freedom back. Id. at pp. 5-6.
Plaintiff further alleges that one or more attorneys at the Pierce County Jail ("PCJ") used her children against her, telling her to take the plea or she would sit in jail for up to a year without seeing her children. Id. at p. 5. In addition, plaintiff alleges the Lakewood Police Department ("LPD") kept her at the PCJ for at least six or seven hours without food, even though she was pregnant at the time. Id.
Plaintiff refers to "the attorney at Pierce County", to the prosecutor at the Pierce County Jail - Erica Ergusen, and to another attorney Leslie Tolzan. Dkt. 1, p. 5. None of these individuals are named as defendants.
Plaintiff also indicates her desire to file a lawsuit for "misconduct of representation" against a Liza Prescott, who is not a party to this lawsuit, regarding the neglect of a child. Id. at p. 6. Plaintiff claims as well that her attorney - who also is not named as a defendant - went against her instead of fighting for her in relation to the plea offer she received. Id. at p. 7. Lastly, plaintiff claims she was wrongfully convicted. Id.
STANDARD OF REVIEW
The district court may allow a litigant to proceed IFP upon the submission of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). However, IFP status is a privilege not a right, and the district court has discretion to deny such status. O'Laughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). The district court, furthermore, must screen prisoner lawsuits, and dismiss them sua sponte if they fail to state a claim on which relief may be granted. Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (citing 28 U.S.C. § 1915(e)(2)).
A complaint fails to state a claim on which relief may be granted if it lacks a cognizable legal theory or if it fails to allege sufficient facts under a cognizable legal theory. Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). A claim is factually sufficient if the district court can reasonably infer from the claim that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Before the district court may dismiss the complaint for failure to state a claim, in general it must notify the plaintiff of the deficiencies in his or her complaint and provide the plaintiff with an opportunity to amend the complaint prior to dismissal. Lee v. City of Los Angeles, 250 F.2d 668, 683 n.7 (9th Cir. 2001). The district court may deny leave to amend the complaint "only where the plaintiff 'cannot possibly win relief.'" Id. (quoting Wong v. Bell, 642 F.2d 359, 362 (9th Cir. 1981)).
DISCUSSION
1. Coerced Plea Agreement; Wrongful Conviction
Plaintiff alleges she was "blackmailed" into taking a plea - including being threatened with the removal of her children if she did not agree to take it - and seeks "freedom" for both herself and her children. Plaintiff also alleges that her attorney worked against her in relation to her plea offer, and that she was wrongly convicted.
A writ of habeas corpus, however, is "the exclusive remedy" for those state prisoners who challenge the fact or duration of their confinement and who seek "immediate or speedier release." Heck v. Humphrey, 512 U.S. 477, 481 (1994); Ramirez v. Galaza, 334 F.3d 850, 855 (9th Cir. 2003). A § 1983 action brought by a state prisonter is therefore "barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of his suit (state conduct leading to the conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in the original).
To the extent plaintiff can prove she was blackmailed into taking a plea or was otherwise coerced into doing so, those claims are barred under Heck as success on those claims necessarily would invalidate her conviction. Nor has plaintiff shown that her conviction has previously been invalidated. A habeas corpus petition is her sole avenue for relief.
2. CPS Claims
A state has Eleventh Amendment immunity to lawsuits brought by its own citizens in federal court. Tennessee v. Lane, 541 U.S. 509, 517 (2004). This is true "regardless of the nature of the relief sought." Krainski v. Nevada ex rel. Bd. of Regents of Nevada System of Higher Ed., 616 F.3d 963, 967 (9th Cir. 2010) (citing Papason v. Allain, 478 U.S. 265, 276 (1986)). A state agency, as an arm of the state, is also immune from such suits. Flint v. Dennison, 488 F.3d 816, 824 (9th Cir. 2007). Further, a state agency is not a "person" under § 1983. Id.
Section 1983 provides in relevant part that every "person" who, under color of state law, "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983.
Plaintiff's claims against CPS, an agency of the State of Washington, are therefore barred by the Eleventh Amendment.
To the extent plaintiff seeks to overturn a state court judgment regarding the removal of her children, this Court should abstain from addressing the matter. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003) (only the United States Supreme Court may hear a direct appeal from a state court judgment). If state court proceedings are ongoing, the Court should abstain on this basis as well to avoid interference. Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 437 (1982); Canatella v. California, 404 F.3d 1106, 1109-1110 (9th Cir. 2005) (abstention required absent "extraordinary circumstances").
3. PCJ and LPD Claims
The PCJ and LPD may be liable under § 1983 if they deprive plaintiff of her rights or cause her to be subjected to such deprivation. Connick v. Thompson, 563 U.S. 51, 60 (2011). To impose liability plaintiff must prove an action taken pursuant to official local government policy caused the alleged injury. Id. Plaintiff also may establish liability by showing the deprivation occurred as a result of a local government "custom". Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). Mere allegations of liability, however, will not suffice. Sandoval v. Las Vegas Metro. Police Dep't, 756 F.3d 1154, 1167-68 (9th Cir. 2014).
Here, plaintiff merely alleges the PCJ used her children against her to force her to take a plea. Likewise, plaintiff alleges only that the LPD kept her for at least six or seven hours without food. Plaintiff does not allege or otherwise show that the actions taken by the PCL and LPD were due to any custom or official policy. Accordingly, plaintiff has failed to establish liability on the part of either entity.
4. Claims Against PCJ Attorneys
Although not named as a defendant, plaintiff may be asserting a claim against prosecutor Erica Ergusen for using plaintiff's children against her to force her to take the plea. While Ms. Ergusen is not entitled to prosecutorial immunity in this case as plaintiff seeks injunctive relief only, Gobel v. Maricopa Cty., 867 F.2d 1201, 1203 (9th Cir. 1989), because this claim if proven would necessarily call into question the legaility of the plea agreement, it is barred under Heck. Wilkinson, 544 U.S. at 81-82.
To the extent plaintiff is asserting the same claim against "the attorney at Pierce County" or attorney Leslie Tolzan, the claim against them is barred for the same reason. The claim further fails because plaintiff has not shown that either individual was acting under color of state law at the time of the alleged injury, i.e. that they were acting in the capacity of a state or local official. Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015).
5. Claim Against Liza Prescott
Plaintiff's desire to sue an individual named Liza Prescott for "misconduct of representation" regarding the neglect of a child also fails. Plaintiff has made no showing that Ms. Prescott is a state actor. Naffe, 789 F.3d at 1035. Such a lawsuit would be inappropriate under § 1983, as there is no indication any wrongdoing that may have occurred has resulted in the deprivation of plaintiff's federal rights. Id.
6. Claim Against Plaintiff's Attorney
Plaintiff's claim that her attorney did not fight for her in relation to her plea offer again implicates the legality of her conviction, and therefore is barred under Heck. It is barred as well because plaintiff has not shown her attorney acted under color of state law. Wilkinson, 544 U.S. at 81-82; Naffe, 789 F.3d at 1035.
RECOMMENDATION
Plaintiff has neither filed a proper IFP application nor paid the Court filing fee. Further, for the reasons set forth above, plaintiff's proposed complaint is fatally deficient, in that it fails to state a claim upon which relief may be granted. Accordingly, the Court should dismiss plaintiff's proposed complaint (Dkt. 1).
If the Court allows plaintiff to proceed with this matter, the Court should require her to pay the filing fee and file an amended complaint - correcting, if possible, the deficiencies noted above - within thirty (30) days of the Court's adoption of this Report and Recommendation. If plaintiff fails to pay the filing fee or file an amended complaint as directed, the Court should dismiss this matter with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure ("FRCP") 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also FRCP 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by FRCP 72(b), the clerk is directed to set the matter for consideration on December 7, 2018, as noted in the caption.
Dated this 20th day of November, 2018.
/s/_________
Theresa L. Fricke
United States Magistrate Judge