# Card v. Pierce County Sheriffs Department > District Court, W.D. Washington · October 18, 2024 URL: https://www.frixlaw.com/law-library/cases/10713115 ## Case - **Court:** District Court, W.D. Washington - **Decided:** October 18, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10713115 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 TONY LAMAR CARD, Case No. 3:24-cv-05814-BHS 7 Plaintiff, v. ORDER GRANTING PLAINTIFF’S 8 MOTION TO PROCEED IN MICHAEL COONEY, et al., FORMA PAUPERIS AND ORDER 9 TO SHOW CAUSE Defendants. 10 11 This matter comes before the Court on pro se plaintiff Tony Card’s motion to 12 proceed in forma pauperis. Dkt. 1. This matter has been referred to the undersigned 13 Magistrate Judge. Mathews, Sec’y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. 14 § 636(b)(1)(B); Local Rule MJR 4(a). The motion for IFP is granted, because plaintiff 15 does not have sufficient funds to afford the filing fee. But, because plaintiff has not 16 established whether the Court has jurisdiction to adjudicate this case, and because the 17 complaint does not contain sufficient facts to state a plausible claim plaintiff is ordered 18 to show cause why this cause of action should not be dismissed – or file an amended 19 complaint – on or before November 12, 2024. 20 DISCUSSION 21 The district court may permit indigent litigants to proceed IFP upon completion of 22 a proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad 23 24 1 discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 2 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). 3 The Court must subject each civil action commenced pursuant to 28 U.S.C. § 4 1915(a) to mandatory screening and order the sua sponte dismissal of any case that is 5 “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks 6 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 7 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 8 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 9 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 10 only permits but requires” the court to sua sponte dismiss an IFP complaint that fails to 11 state a claim). A claim is frivolous if “it ha[s] no arguable substance in law or fact.” 12 Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citing Rizzo v. 13 Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 14 1221, 1228 (9th Cir. 1984). 15 A. Lack of Subject Matter Jurisdiction 16 Although plaintiff states that this Court has federal question jurisdiction over this 17 complaint, plaintiff’s IFP application does not clearly demonstrate that this Court does in 18 fact have subject matter jurisdiction to hear his claim. Federal courts are courts of 19 limited jurisdiction; only cases arising under a federal question or cases where there is 20 complete diversity of the parties may be heard. U.S. Const. Art. III §2, cl. 1; 28 U.S.C. 21 §§ 1331, 1332. 22 To establish federal question jurisdiction pursuant to 28 U.S.C. § 1331, a claim 23 must arise “under the Constitution, laws, or treaties of the United States.” “Presence or 24 1 absence of federal-question jurisdiction is governed by the “well-pleaded complaint 2 rule,” which provides that federal jurisdiction exists only when a federal question is 3 presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar v. 4 Williams., 482 U.S. 386, 386 (1987). 5 Federal question jurisdiction has not been established in this case. When asked 6 to identify the basis for federal question jurisdiction, plaintiff alleges his claims “stem 7 from family court” and states this Court has subject matter jurisdiction over all claims 8 arising “under the Constitution, laws, or treaties of the United States.” Dkt. 1-1 at 3. 9 While the latter is true, plaintiff has not presented facts that would support a cause of 10 action under the federal statutes or constitution or other federal law. Matters of federal 11 question arise under federal law only when the federal questions arise on the face of the 12 well-pleaded complaint. See Caterpillar, 482 U.S. at 392. Criminal trespass, plaintiff’s 13 primary cause of action, is traditionally a question of state law, and plaintiff does not 14 allege facts establishing that his trespass claim arises under federal law or otherwise 15 raises a federal question. 16 B. Failure to State a Claim 17 Assuming for purposes of this analysis that plaintiff would potentially be able to 18 establish that the court has jurisdiction over his claim, he would still be required to 19 amend his complaint to allege sufficient factual assertions. An unrepresented plaintiff’s 20 complaint is to be construed liberally; but – like any other complaint – factual assertions 21 must be sufficient to support a facially plausible claim for relief. Ashcroft v. Iqbal, 556 22 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 23 A claim for relief is facially plausible when “the plaintiff pleads factual content that allows 24 1 the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Iqbal, 556 U.S. at 678. 3 Under Federal Rule of Civil Procedure (Fed R. Civ P.) 8(a), a complaint must 4 contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to 5 relief.” Fed. R. Civ. P. 8(a). Plaintiff must allege a plausible set of facts that would show 6 he is entitled to any relief.  Iqbal, 556 U.S. at 678. Mere conclusory statements in a 7 complaint and “formulaic recitation[s] of the elements of a cause of action” are not 8 sufficient. Id. at 681; Chavez v. United States, 683 F.3d 1102, 1108-09 (9th Cir. 2012). 9 The factual allegations of a complaint must be “enough to raise a right to relief above 10 the speculative level.” Bell Atlantic Corp., 550 U.S. at 555. “Dismissal can be based on 11 the lack of a cognizable legal theory or the absence of sufficient facts alleged under a 12 cognizable legal theory.” Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 13 1990). 14 Unless it is absolutely clear that no amendment can cure the defects of a 15 complaint, a plaintiff who is unrepresented by counsel is entitled to notice of the 16 complaint’s deficiencies and an opportunity to amend prior to dismissal of the action. 17 See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995). Leave to amend need not 18 be granted “where the amendment would be futile or where the amended complaint 19 would be subject to dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 20 Here, plaintiff does not provide sufficient facts to support a claim for relief or a 21 cognizable legal theory. It is unclear from the complaint what events gave rise to this 22 suit. Plaintiff states Michael Cooney is “constantly leaving voicemails” to serve plaintiff 23 documents from King County Superior Court, and Linda Ridge and King County 24 1 Superior Court Judge Aimee Sutton1 “have been served documents rescinding all 2 previous contracts and powers of attorney.” Dkt. 1-1 at 5. Plaintiff has failed to provide 3 clarity regarding the nature of his claims sufficient to show what happened, when it 4 happened, who was involved, and how those acts violated his rights. As such, plaintiff 5 has not stated a short and plain statement of a claim showing he is entitled to relief. 6 In order to properly address this issue, plaintiff must specifically describe acts or 7 failures to act, taken by the defendants, causing a violation of law that would be within 8 this Court’s jurisdiction (as described above). 9 CONCLUSION 10 Plaintiff’s motion for IFP is GRANTED. 11 It appears that plaintiff’s complaint is subject to dismissal. The Court ORDERS 12 plaintiff to either: (1) file a memorandum describing (show cause) why the complaint 13 should not be dismissed, or (2) alternatively, plaintiff may file a proposed amended 14 complaint to cure, if possible, the deficiencies noted herein, on or before November 12, 15 2024. If an amended complaint is filed, it must be legibly written or retyped in its entirety 16 and contain the same case number. Any cause of action alleged in the original 17 complaint that is not alleged in the amended complaint is waived. Forsyth v. Humana, 18 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds, Lacey v. 19 Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012). 20 21 22 1 It is unclear from plaintiff’s complaint what the nature of his claims are against Judge Aimee Sutton. A judge is immune from liability unless the actions were nonjudicial, or the actions were “taken in the 23 complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per curiam) (citing Stump v. Sparkman, 435 U.S. 349, 356-357 (1978)). Plaintiff has not shown how Judge Sutton’s actions 24 were non-judicial. 1 The Court will screen the amended complaint to determine whether it states a 2 claim and names proper defendants. If the amended complaint is not timely filed or fails 3 to address the issues raised herein, the undersigned will recommend dismissal of this 4 action for lack of jurisdiction, or as frivolous, under 28 U.S.C. § 1915. 5 The Clerk is directed to send plaintiff a copy of this order. 6 7 Dated this 18th day of October, 2024. 8 9 A 10 Theresa L. Fricke 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10713115. Public record. Not legal advice.