granting qualified immunity in the present case but 13 denying it moving forward
How later courts described this case
- granting qualified immunity in the present case but 13 denying it moving forward
- “Under what has 20 come to be known as the Rooker-Feldman doctrine, lower federal courts are precluded from 21 exercising appellate jurisdiction over final state-court judgments.”
- “Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right 3 to have counsel present during custodial interrogation.”
Written by the judges who cited it.
The opinion
1
2
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7
UNITED STATES DISTRICT COURT
8
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
9
10
WILLIE L. TOLBERT, CASE NO. 3:25-cv-05694-DGE
11
Plaintiff, ORDER DISMISSING
12 v. COMPLAINT WITH LEAVE TO
AMEND
13 RICHARD WEYRICH et al.,
14 Defendants.
15
16 I INTRODUCTION
17 This matter comes before the Court on sua sponte review pursuant to 28 U.S.C.
18 § 1915(a).
19 II BACKGROUND
20 Plaintiff, proceeding pro se and in forma pauperis (“IFP”), filed a complaint against
21 prosecutor Richard Weyrich,1 county district judge Timothy Ashcraft, public defender Peter
22
23
1 Plaintiff identifies Weyrich as the prosecutor for Pierce County. (Dkt. No. 4 at 2.) Weyrich
appears to be a prosecutor for Skagit County.
24
1 Reich, and Tacoma Police Department officers Victor Batres; Timothy R. Caber; Angel
2 Castaneda; Kayla Dupliech;2 Jerome Justin Duray; Nicholas Fallis; Kevin Hanley; Shawn
3 Gustason, Jr.; Wyatt Gustason; and Kenneth P. Smith. (Dkt. No. 4.)
4 Plaintiff first alleges unlawfulness during a traffic stop. He alleges he was unlawfully
5 detained on the morning of May 16, 2024, by Tacoma Police Department officers. (Id. at 11.)
6 Plaintiff alleges he was blocked on all sides by four unmarked Tacoma Police Department
7 vehicles. (Id.) He alleges one of the four cars made contact with the vehicle he was driving.
8 (Id.) He states two officers pointed guns at him: Officer Dupliech while searching him and
9 Officer Wyatt Gustason while threatening to kill him. (Id. at 6.) Plaintiff alleges this was
10 particularly traumatic and caused him “significant alarm” because of his diagnoses of post-
11 traumatic stress disorder, bipolar disorder, and paranoia. (Id. at 11.) He also alleges injuries to
12 his neck and face from being grabbed by the officers, as well as damage to the vehicle he was
13 driving. (Id. at 7.)
14 Second, Plaintiff alleges errors with police processing. Plaintiff alleges he was detained
15 at police headquarters for multiple hours. (Id. at 11.) Plaintiff alleges he was not read his
16 Miranda rights. (Id.) He also alleges he was denied access to an attorney, despite his request for
17 an attorney. (Id.) Plaintiff alleges he was subject to eight fingerprint attempts. (Id.) Plaintiff
18 also alleges he was told he would be sent to a federal holding facility “for up to 12 days without
19 access to communication, pending an FBI identity analysis.” (Id.)
20 Finally, Plaintiff alleges errors with his court proceedings by the prosecutor, the presiding
21 judge, and his public defender. First, Plaintiff alleges Weyrich “falsely claimed that drugs found
22 during the unlawful stop tested positive for fentanyl” to justify probable cause. (Id.) Lab results
23
2 Defendant Dupliech’s name appears to occasionally be spelled Dupleich.
24
1 four months later, however, identified the substance to be acetaminophen. (Id.) Plaintiff further
2 alleges Weyrich coerced him into an Alford plea for assault in the second degree “despite a lack
3 of evidence, an identified victim, or probable cause.” (Id. at 12.) He alleges Weyrich required
4 this plea as a condition to dismiss a Tennessee felony conviction, which was “illegally
5 reclassified in Washington as a class B felony.” (Id.) Second, Plaintiff alleges Ashcraft denied
6 his Knapstad motion “solely due to Plaintiff’s 40-day detention. (Id.) Third, Plaintiff alleges
7 Reich provided ineffective assistance of counsel, citing Reich’s “inaction on challenging
8 fabricated evidence and the unlawful stop.” (Id.) He further alleges Reich is “a friend of Judge
9 Ashcraft” and “supported” Ashcraft in denying his Knapstad motion. (Id.)
10 Plaintiff’s claims are not a model of clarity, but they can be broadly organized around six
11 causes of actions. (Id. at 13–14.) Plaintiff’s first cause of action is under the Fourth Amendment
12 for an “illegal search and seizure.” (Id.) Plaintiff’s second cause of action is against Weyrich
13 under the Fourteenth Amendment for “misrepresentation of drug test results.” (Id. at 14.)
14 Plaintiff’s third cause of action is under the Sixth Amendment for “failure to provide Miranda
15 warnings, denial of legal representation, and extended detention without due process.” (Id.)
16 Plaintiff’s fourth cause of action is for a “due process violation” stemming from a “coercive plea
17 agreement.” (Id.) Plaintiff’s fifth cause of action is an “ex post facto violation” for reclassifying
18 “Plaintiff’s Tennessee conviction as a Class B felony.” (Id.) Plaintiff’s sixth cause of action is
19 for “civil conspiracy under color of state law.” (Id.) Plaintiff also alleges that the use of
20 unmarked vehicles violates Wash. Revised Code § 46.08.065. (Id. at 11.)
21 Plaintiff seeks compensatory damages including $4,200 for damages to the vehicle he
22 was driving, punitive damages, injunctive relief, attorney fees and costs, and any other relief
23 deemed “just and equitable” by this Court. (Id. at 14.)
24
1 III DISCUSSION
2 Any complaint filed by a person proceeding IFP pursuant to 28 U.S.C. § 1915(A) is
3 subject to a mandatory and sua sponte review. Complaints will be dismissed if they fail to state a
4 claim or are otherwise frivolous or malicious. 28 U.S.C. § 1915(a). They will also be dismissed
5 if they seek monetary relief from a defendant who is immune from such relief. Id.
6 “The standard for determining whether [a] Plaintiff has failed to state a claim upon which
7 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure
8 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
9 2012). While a pro se plaintiff’s complaint must be construed liberally, it must nevertheless
10 contain factual assertions sufficient to support a facially plausible claim for relief.” Ashcroft v.
11 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
12 (2007)). A claim for relief is facially plausible when “the plaintiff pleads factual content that
13 allows the court to draw the reasonable inference that the defendant is liable for the misconduct
14 alleged.” Iqbal, 556 U.S. at 678.
15 The first question is on what grounds Plaintiff is bringing his suit. Two grounds are
16 plausible. The first claim is that Plaintiff is challenging the constitutionality of his conviction.
17 This claim will fail. Plaintiff’s conviction occurred in state court and, accordingly, this Court
18 cannot provide redress. To the extent Plaintiff wishes to challenge his criminal conviction, this
19 is not the right avenue to do so. See Lance v. Dennis, 546 U.S. 459, 463 (2006) (“Under what has
20 come to be known as the Rooker-Feldman doctrine, lower federal courts are precluded from
21 exercising appellate jurisdiction over final state-court judgments.”). Plaintiff must go through
22 the state court appeals process to challenge his state court conviction.
23
24
1 The second option available to Plaintiff is 42 U.S.C. § 1983. “A litigant complaining of a
2 violation of a constitutional right must utilize 42 U.S.C. § 1983.” Azul-Pacifico, Inc. v. City of
3 Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992). To successfully state a claim under 42 U.S.C.
4 § 1983, a complaint must allege that (1) the conduct complained of was committed by a person
5 acting under color of state law, and that (2) the conduct deprived a person of a right, privilege, or
6 immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
7 527, 535 (1981), overruled on other grounds; Daniels v. Williams, 474 U.S. 327 (1986). Both
8 elements are required. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert. denied,
9 478 U.S. 1020 (1986).
10 The plaintiff must set forth a specific factual basis upon which he claims each defendant
11 is liable. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each
12 Government-official defendant, through the official’s own individual actions, has violated the
13 Constitution.”); see also Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Vague and
14 conclusory allegations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.
15 1982).
16 Additionally, to the extent Plaintiff wishes to challenge his criminal conviction under
17 § 1983, he cannot. There is no requirement that an individual exhaust state claims before
18 bringing a federal § 1983 claim. Heck v. Humphrey, 512 U.S. 477, 483 (1994). However, “in
19 order to recover damages for allegedly unconstitutional conviction or imprisonment . . . a § 1983
20 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged
21 by executive order, declared invalid by a state tribunal authorized to make such determination, or
22 called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
23
24
1 claim for damages bearing that relationship to a conviction or sentence that has not been so
2 invalidated is not cognizable under § 1983.” Heck, 512 U.S. at 486–487.
3 This limitation on § 1983 extends to police officers. Szajer v. City of Los Angeles, 632
4 F.3d 607 (9th Cir. 2011). In Szajer, Defendant officers sold Plaintiff—an owner of a gun shop—
5 illegal weapons even after Plaintiff expressed concern about their legality. Id. at 609. Plaintiff
6 tried to report the weapons to the Sheriff’s Department. Id. However, officers still executed a
7 search warrant against him, found other illegal weapons, and charged him with unlawful
8 possession of firearms. Id. Plaintiff filed a no contest plea, then brought suit under § 1983
9 claiming that the search warrant was executed under knowingly false information in violation of
10 the Fourth Amendment. Id. at 609-610. The Supreme Court held the case was barred under
11 Heck because “[Plaintiff’s] civil claims necessarily challenge the validity of the undercover
12 operation and in doing so imply that there was no probable cause to search for weapons.” Id. at
13 612.
14 A. Count I
15 Plaintiff’s first cause of action alleges a violation of the Fourth Amendment for an illegal
16 search and seizure. (Dkt. No. 4 at 13–14.) Plaintiff’s Complaint will be liberally construed to be
17 a claim under 42 U.S.C § 1983.3 Plaintiff possibly alleges both a Fourth Amendment violation
18 in the form of excessive force by Officers Dupliech and Wyatt Gustason and a Fourth
19 Amendment violation in the form of a seizure without reasonable suspicion or probable cause.
20 (Id. at 6, 11–12.)
21
22
23
3 To the extent Plaintiff intends to exclude evidence under the Fourth Amendment, this
Complaint is not the right avenue. (See Dkt. No. 4 at 13.)
24
1 A complaint under § 1983 must be pled with sufficient individualized particularity to
2 show Defendant’s actions caused “a deprivation of the plaintiff’s rights.” Arnold v. Int’l
3 Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). The plaintiff must first “allege[]
4 a constitutional violation.” Robinson v. Solano County, 278 F.3d 1007, 1012 (9th Cir. 2002). If
5 the plaintiff alleges a constitutional violation, the officer is then entitled to qualified immunity
6 analysis. Pearson v. Callahan, 555 U.S. 223, 231 (2009). An officer is entitled to qualified
7 immunity as long as their conduct “does not violate clearly established statutory or constitutional
8 rights of which a reasonable person would have known.” Id. (quoting Harlow v. Fitzgerald, 457
9 U.S. 800, 818 (1982)). Qualified immunity bars a suit. Id. (quoting Mitchell v. Forsyth, 472
10 U.S. 511, 526 (1985)).
11 Plaintiff’s claim that the traffic stop violated the Fourth Amendment because “reasonable
12 suspicion” is required for a lawful stop fails under Heck and Szajer. Plaintiff’s claim appears to
13 be that, without this unlawful stop, Plaintiff would not have a conviction for assault. (Dkt. No. 4
14 at 12–13.) Even without this bar, the claim would fail for a lack of specificity. Plaintiff fails to
15 identify which of the ten named officers were involved in the stop. Even liberally construing
16 Plaintiff’s Complaint, it is inappropriate to conclude that the “four unmarked Tacoma Police
17 Department vehicles” were necessarily manned by the ten named officers. (Id. at 11.)
18 However, Plaintiff’s potential claim that by Officers Dupliech and Wyatt Gustason used
19 excessive force arguably could go forward, but it is not clear whether this claim is being
20 advanced. Plaintiff’s first cause of action only vaguely asserts an “illegal search and seizure.”
21 (Id. at 12–13.) But Plaintiff alleges elsewhere that Dupliech pointed a gun at him and illegally
22 searched him. (Id. at 6.) He further alleges Wyatt Gustason pointed a gun at him and threatened
23 his life. (Id.) These assertions survive an initial Heck analysis because they do not appear to be
24
1 related to the constitutionality of Plaintiff’s criminal conviction for assault. While it remains
2 unclear why Plaintiff was stopped, why Plaintiff was taken into detention, or why Plaintiff was
3 charged with assault, those unknown circumstance may not support being detained at gunpoint
4 by these two officers. Therefore, the threshold issue is whether “the plaintiff alleged a
5 constitutional violation.” Robinson, 278 F.3d at 1012. A police officer who points a gun at a
6 member of the community can be liable under the Fourth Amendment based on the specific
7 circumstances presented. Id. at 1013.
8 Plaintiff, arguably, also states facts that might survive an initial qualified immunity
9 analysis. Officers are entitled to qualified immunity if the alleged violation was not a clearly
10 established constitutional or statutory violation. The Ninth Circuit has held, at times, pointing a
11 loaded gun at a suspect is a “clearly established constitutional violation.” Thompson v. Rahr,
12 885 F.3d 582, 584, 590 (9th Cir. 2018) (granting qualified immunity in the present case but
13 denying it moving forward). Specifically, some of the factors the Thompson court considered
14 were whether the gun was pointed at the individual’s head; the size, age, and criminal record of
15 the suspect; the number of officers; and the time of day. Id. Plaintiff fails to allege enough facts
16 sufficient to show he would survive a thorough qualified immunity analysis but the basic facts he
17 has alleged indicate there may be a plausible claim that could survive such analysis.
18 Accordingly, because it is unclear whether Plaintiff is advancing an excessive force claim
19 and because the facts supporting such claim are rather sparse, Plaintiff is granted leave to amend
20 his complaint. The amended complaint should identify the specific facts he relies on to support
21 an excessive force claim under the Fourth Amendment against Dupliech and Wyatt Gustason.
22 B. Count II
23
24
1 Plaintiff’s second cause of action is under the Fourteenth Amendment against Weyrich on
2 the grounds Weyrich misrepresented Plaintiff’s drug results. (Dkt. No. 4 at 13.) Plaintiff’s
3 Complaint will be liberally construed to be a claim under 42 U.S.C § 1983. Plaintiff alleges
4 Weyrich falsely claimed the drugs in his vehicle contained fentanyl when a lab test “four months
5 later” revealed the substance to be only acetaminophen. (Id. at 11.) Plaintiff cites Brady v.
6 Maryland, 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264 (1959) for the proposition
7 Weyrich’s actions violate the Fourteenth Amendment. (Id.)
8 It is not clear whether Plaintiff’s claim is barred by Heck. Plaintiff alleges that without
9 Weyrich’s misrepresentation, there would not have been probable cause. However, Weyrich’s
10 misrepresentation was related to drugs whereas Plaintiff’s conviction is for assault. But even if
11 the two are separate, Plaintiff’s claim fails.
12 Plaintiff is correct Brady and Napue require, respectively, prosecutors turn over
13 exculpatory evidence when it favors the defendant and correct false evidence. Brady, 373 U.S.
14 at 87–88; Napue, 360 U.S. at 269. Plaintiff misapplies these cases to this case, however. First,
15 both Brady and Napue require the prosecutor to knowingly allow the misrepresentation to occur.
16 Brady, 373 U.S. at 87–88; Napue, 360 U.S. at 269. Here, Plaintiff admits that the lab results
17 only came back four months later. (Dkt. No. 4 at 11.) There is no evidence Weyrich knowingly
18 made a misrepresentation when he stated the drugs contained fentanyl. (Id.) Second, both Brady
19 and Napue require the information be material. Brady, 373 U.S. at 88; Napue, 360 U.S. at 272.
20 Plaintiff makes no allegations Weyrich’s “misrepresentation” was material to his conviction.
21 This is particularly lacking considering his charge appears to be for assault and not for drug
22 possession. (Id. at 12.)
23
24
1 Moreover, even if Plaintiff did raise a colorable claim under the Fourteenth Amendment,
2 Weyrich is protected by prosecutorial immunity. Prosecutorial immunity extends to all actions
3 by a prosecutor acting “within the scope of his prosecutorial duties.” Imbler v. Pachtman, 424
4 U.S. 409, 420 (1976). Absolute prosecutorial immunity applies where the prosecutor is acting as
5 an advocate in judicial proceedings, such as initiating or pursuing a suit. Kalina v. Fletcher, 522
6 U.S. 118, 124 (1997) (citing Imbler, 424 U.S. at 410). Only qualified immunity exists, however,
7 when a prosecutor is acting in investigative or other non-prosecutorial roles. Id. at 127 (citing
8 Buckley v. Fitzsimmons, 509 U.S. 259, 273–274 (1993).
9 Plaintiff alleges Weyrich failed to disclose evidence and falsely used evidence. (Dkt. No.
10 4 at 11.) Both failing to disclose evidence and knowingly using false testimony are protected by
11 absolute prosecutorial immunity. Broam v. Bogan, 320 F.3d 1023, 1029–1030 (9th Cir. 2003).
12 Accordingly, Plaintiff’s second cause of action against Weyrich under the Fourteenth
13 Amendment is dismissed.
14 C. Count III
15 Plaintiff’s third cause of action is under the Sixth Amendment for Defendants “failure to
16 provide Miranda warnings, denial of legal representation, and extended detention without due
17 process.” (Dkt. No. 4 at 13.) Plaintiff’s Complaint will be liberally construed to be a claim
18 under 42 U.S.C § 1983.
19 Again, it is unclear whether Plaintiff’s claims are barred by Heck. It is not clear whether
20 Plaintiff is alleging he would not have been convicted absent the failure to provide Miranda
21 warnings, the failure to provide him with legal representation, and/or the failure to release him or
22 provide him due process. If so, Heck would bar this claim. But even if he is alleging these
23 violations are distinct from his conviction, they will fail.
24
1 Plaintiff’s claim for a failure to provide Miranda warnings will be liberally construed and
2 considered under the Fifth Amendment. See Miranda v. Arizona, 384 U.S. 436, 439 (1966).
3 Miranda warnings are required when an individual is in “custodial interrogation.” Id. at 444.
4 An individual is in custodial interrogation if they are subject to “questioning initiated by law
5 enforcement officers after [being] taken into custody or otherwise deprived of [their] freedom of
6 action in any significant way.” Id. An individual is in custody if there was a “formal arrest” or
7 “restraint on freedom of movement of the degree associated with a formal arrest.” Yarborough
8 v. Alvarado, 541 U.S. 652, 663 (9th Cir. 2004) (quoting Thompson v. Keohane, 516 U.S. 99, 116
9 (1995). An individual can be in custody without being in custodial interrogation. Rhode Island
10 v. Innis, 446 U.S. 291, 301 (1980). Interrogation requires “words or actions on the part of the
11 police (other than those normally attendant to arrest and custody) that the police should know are
12 reasonably likely to elicit an incriminating response.” Id.
13 Plaintiff’s allegations do not explicitly confirm whether he was subject to custodial
14 interrogation. Further analysis of Plaintiff’s claim for “failure to provide Miranda warnings” is
15 not required, however, because it cannot constitute a colorable claim. The Supreme Court has
16 held a violation of Miranda does not provide a basis for a claim under § 1983. Vega v. Tekoh,
17 597 U.S. 134, 141 (2022). Because Miranda imposes only prophylactic rules, violations of
18 Miranda do not “necessarily constitute a Fifth Amendment violation.” Id. at 142. Plaintiff
19 alleges only a violation of Miranda, not a violation of the Fifth Amendment. Thus, Plaintiff’s
20 claim cannot constitute a colorable claim.
21 Plaintiff’s claim regarding denial of legal counsel will be liberally construed under both
22 the Fifth and Sixth Amendment. While a Miranda violation on its own cannot constitute a
23 colorable claim under § 1983, a claim that officers failed to provide an individual subject to
24
1 custodial interrogation with counsel when requested can. See Edwards v. Arizona, 451 U.S. 477,
2 481 (1981) (“Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right
3 to have counsel present during custodial interrogation.”).
4 However, Plaintiff’s specific allegations, even liberally construed, do not rise to a
5 colorable claim. Plaintiff does not identify any specific officer who detained or questioned him.
6 It would be inappropriate to allow suit against the ten named officers without additional
7 information. See Ashcroft, 556 U.S. at 676 (2009). Therefore, this claim fails without any
8 further consideration of whether Plaintiff alleges custodial interrogation or whether qualified
9 immunity applies.
10 Plaintiff’s claim for legal counsel also fails under the Sixth Amendment. The Sixth
11 Amendment right to counsel only attaches when a criminal prosecution is commenced. McNeil
12 v. Wisconsin, 501 U.S. 171, 175 (1991). A criminal prosecution has commenced when there is
13 an “adversary proceeding” such as a formal charge, a preliminary hearing, indictment,
14 information, or arraignment. United States v. Pace, 833 F.2d 1307, 1310 (9th Cir. 1987) (citing
15 Kirby v. Illinois, 406 U.S. 682, 689 (1972)). Plaintiff appears to only allege he was denied
16 access to counsel during his initial investigation. Plaintiff makes no allegation he was charged
17 formally at this point. Therefore, Plaintiff’s Sixth Amendment right had not yet attached.
18 Finally, Plaintiff’s claim for extended detention without due process will be interpreted to
19 be under the Fourth Amendment. Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1167
20 (9th Cir. 2013). Plaintiff alleges that he was detained “for hours,” during which time he was
21 subjected to “eight fingerprint attempts.” (Dkt. No. 4 at 11.) Plaintiff’s claim again fails,
22 however, for lack of specificity because Plaintiff fails to identify which of the ten named officers
23 detained him. It would be inappropriate to allow suit against all ten named officers. Ashcroft,
24
1 556 U.S. at 676 (2009). This Court declines to further analyze Plaintiff’s Fourth Amendment
2 claim or Defendants’ possible qualified immunity responses given this failure to allege a proper
3 named defendant.
4 Accordingly, Plaintiff’s third cause of action for violations of Miranda, denial of counsel,
5 and extended detention is dismissed.
6 D. Count IV
7 Plaintiff’s fourth cause of action alleges a “due process violation” for a “coercive plea.”
8 (Dkt. No. 4 at 13.) Plaintiff alleges he “was coerced into an Alford plea for Assault in the
9 Second Degree.” (Id. at 12.) Plaintiff alleges he was coerced into this plea “as a condition to
10 dismiss a Tennessee Class C felony conviction, which was illegally reclassified in Washington as
11 a Class B felony.” (Id. at 12.) Plaintiff cites Boykin v. Alabama, 395 U.S. 238 (1969) for the
12 proposition a coercive plea violates due process. (Id.) Boykin holds only that a trial judge must
13 make an affirmative showing that a guilty plea is intelligent and voluntary. Boykin, 395 U.S. at
14 242. It has no bearing on Plaintiff’s claim for civil liability.
15 However, Plaintiff’s claim will be liberally construed to be a claim under § 1983. This
16 claim is barred under Heck because it is explicitly about the plea deal. Accordingly, Plaintiff’s
17 fourth cause of action relating to his plea deal is dismissed.
18 E. Count V
19 Plaintiff’s fifth cause of action alleges a “ex post facto violation” for the “retroactive
20 classification” of his Tennessee conviction as a “Class B felony.” (Dkt. No. 4 at 13.) Plaintiff’s
21 claim is at best murky. Plaintiff alleges his Tennessee conviction was “illegally reclassified in
22 Washington as a Class B felony” from a Class C felony. (Id. at 12.) Plaintiff then states
23 Weyrich required him to take the Washington plea to dismiss this Tennessee conviction. (Id.)
24
1 It is unclear what Plaintiff means when he states his conviction was “reclassified” or in
2 what capacity Weyrich would have been able to reclassify or dismiss a Tennessee conviction as a
3 Washington prosecutor. Even assuming a reclassification of Plaintiff’s Tennessee felony
4 conviction, it is unclear what harm this had on Plaintiff as he states Weyrich dismissed this
5 conviction as part of the plea deal. It is also unclear why Plaintiff alleges Weyrich “forced” him
6 to accept this plea deal, given that Plaintiff could have gone to trial. Plaintiff’s citation to Collins
7 v. Youngblood, 497 U.S. 37 (1990) for the proposition Weyrich’s actions violate the Ex Post
8 Facto Clause lends no clarity to the issue. (Id.) Collins held a statute “allow[ing] reformation of
9 improper verdicts” was only a “procedural change” and thus did not violate the Ex Post Facto
10 Clause. 497 U.S. at 44. Collins does not address civil liability.
11 Even the most liberal interpretation of this claim cannot turn it into a cognizable claim.
12 Plaintiff does not identify who reclassified his Tennessee conviction. He also does not identify
13 how any alleged reclassification of his Tennessee conviction “alter[ed] the definition of a crime”
14 for which he was convicted or “increase[ed] the punishment for which he is eligible as a result of
15 that conviction.” Id. Finally, to the extent this claim is related to plea negotiations by Weyrich,
16 Plaintiff fails to explain how it is not barred either by Heck or by absolute prosecutorial
17 immunity. See Banks v. San Mateo Cnty. District Attorney’s Office, No. 24-cv-08681-SI, 2025
18 WL 1150702, at *4 (N.D. Cal. Apr. 18, 2025); Cotton v. Cnty. of San Bernadino, No. EDCV 15-
19 2314-VAP (AGR), 2016 WL 7187442, at *10 (C.D. Cal. Nov. 9, 2016); Law v. Johnson, No. 11-
20 CV-06163-LHK, 2012 WL 2906570, at *3 (N.D. Cal. Jul. 13, 2012).
21 Accordingly, Plaintiff’s fifth cause of action for an ex post facto clause violation relating
22 to his “reclassification” is dismissed.
23
24
1 F. Count VI
2 Plaintiff’s sixth cause of action is for “civil conspiracy under color of state law.” (Dkt.
3 No. 4 at 14.) Plaintiff alleges “Defendants conspired to deprive Plaintiff of constitutional rights,
4 violating 42 U.S.C. § 1983. (Id.) However, Plaintiff’s entire Complaint is best understood as
5 being under § 1983. Accordingly, this cause of action is dismissed as it has been absorbed into
6 the other causes of action.
7 F. Miscellaneous claims
8 Plaintiff’s Complaint also alleges three separate claims that are not included in his counts
9 one through six. (Id. at 12–13.)
10 First, Plaintiff alleges that Judge Ashcraft, “supported by Plaintiff’s court-appointed
11 attorney Peter Reich,” denied Plaintiff’s Knapstad motion in violation of “Plaintiff’s due process
12 rights under the Fourteenth Amendment”.4 (Id. at 12.) The Court will liberally construe this to
13 be a constitutional claim against Ashcraft under § 1983. Plaintiff’s claim, however, is barred by
14 judicial immunity. When judicial immunity applies, it serves as a bar to suit. Mireles v. Waco,
15 509 U.S. 9, 10 (1991). Judicial immunity extends to all acts “normally performed by a judge”
16 where the “expectation[] of the parties” is that they are “deal[ing] with the judge in his judicial
17 capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). Judicial immunity ends only where a
18 judge has acted in “clear absence of all jurisdiction.” Id. at 357 (quoting Bradley v. Fisher, 80
19 U.S. 335, 351 (1871)).
20 Here, Ashcraft was ruling on a motion. (Dkt. No. 4 at 12.) Ruling on a motion is a pure
21 judicial act where parties expect the judge to be acting in his or her judicial capacity. Plaintiff
22
23
4 While none explicitly mention this allegation, this claim could have been intended to be brought
under Plaintiff’s second, fourth, or sixth causes of action.
24
1 does not allege that this was a situation where the judge lacked jurisdiction. Accordingly, this
2 claim, to the extent it is made, is dismissed.
3 Second, Plaintiff alleges that Raich provided him with ineffective assistance of counsel.
4 (Id.) The Court construes this claim to be a claim under § 1983. However, ineffective assistance
5 of counsel claims are not valid claims under § 1983. See Nelson v. Campbell, 541 U.S. 637, 643
6 (2004); see also William v. Trimpey, No. 2:24-cv-02148 SCR P, 2025 WL 2029238, at *3 (E.D.
7 Cal. July 2025); Christensen v. Ngyyen, No. 2:20-cv-01770-APG-DJA, 2020 WL 6136220, at *4
8 (D. Nev. Oct. 2020). Accordingly, to the extent Plaintiff makes this claim, it is dismissed.
9 Finally, Plaintiff alleges a violation of Washington Revised Code § 46.08.065, which
10 requires publicly owned vehicles to be marked. (Dkt. No. 4 at 11.) This Court can exercise
11 supplemental jurisdiction over state law claims when “claims [] are so related to claims in the
12 action within such original jurisdiction that they form part of the same case or controversy under
13 Article III of the United States Constitution.” 28 U.S.C. § 1367(a). The Court can decline to
14 exercise supplemental jurisdiction if “the claim substantially predominates over the claim or
15 claims over which the district court has original jurisdiction” or if “the district court has
16 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(b).
17 The only potential remaining issue is whether Wyatt Gustason and Dupliech used
18 excessive force when detaining Plaintiff. There is no specific allegation that the two were in
19 unmarked vehicles during this incident. There is no other allegation that the unmarked vehicles
20 are so closely linked with Plaintiff’s remaining claim that they form part of the same case or
21 controversy. Accordingly, this claim is also dismissed.
22
23
24
1 IV ORDER
2 Based on the foregoing, Plaintiff’s claims are DISMISSED pursuant to 28 U.S.C.
3 § 1915(e)(2)(B)(ii). However, Plaintiff may file an amended complaint to address the
4 deficiencies noted in this order. Plaintiff should also clearly state whether he is pursuing an
5 excessive force claim against Officers Dupliech and Wyatt Gustason and identify facts
6 specifically supporting such claim. Plaintiff’s amended complaint shall be filed no later than
7 October 1, 2025.5
8 The Clerk shall calendar this event.
9 Dated this 10th day of September, 2025.
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a
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David G. Estudillo
12 United States District Judge
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5 Plaintiff requests that his partner be made “overseer” of this case based on his health issues.
(Dkt. No. 4-1.) Federal Rule of Civil Procedure 17(c) identifies when a person may act on behalf
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of a person who is deemed incompetent. Plaintiff has offered no medical evidence establishing
he is incompetent. Moreover, the representative of an incompetent person may not proceed
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without an attorney because “a non-lawyer ‘has no authority to appear as an attorney for others
than himself.’” Provstgaard v. Nye County, Case No. 2:25-cv-00649-CDS-NJK, 2025 WL
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1656690, *1 (D. Nev. Jun 11, 2025) (quoting Johns v. Cnty. of San Diego, 114 F.3d 874, 876
(9th Cir. 1997)).
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