Adrian G Sassen Van Elsloo v. Whatcom County, et al.

• Court: District Court, W.D. Washington
• Decided: October 15, 2025
• Docket: 2:24-cv-02049
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 ADRIAN G SASSEN VAN ELSLOO, Case No. 2:24-cv-02049-RSM-TLF 7 Plaintiff, v. REPORT AND 8 RECOMMENDATION WHATCOM COUNTY, et al., 9 Noted for October 30, 2025 Defendants. 10 11 BACKGROUND 12 The District Court has referred this action to United States Magistrate Judge 13 Theresa L. Fricke. On December 6, 2024, plaintiff filed a motion to proceed in forma 14 pauperis (IFP) and a proposed civil rights complaint under 42 U.S.C. 1983. Dkt. 1. 15 After screening the proposed complaint, the Court ordered plaintiff to show cause 16 why the Court should not dismiss his complaint for failure to state a claim. Dkt. 4. The 17 Court ordered plaintiff to either show cause by February 11, 2025, why the complaint 18 should not be dismissed without prejudice, or file an amended complaint. Id. 19 Plaintiff subsequently requested four extensions of time to respond to the Court’s 20 order to show cause. Dkts. 5, 7, 9, 10. The Court granted plaintiff’s motions. Dkts. 6, 8, 21 11. 22 On May 27, 2025, the Court’s most recent order granting plaintiff’s motion for 23 extension of time was returned to the Court as undeliverable. Dkt. 12. The Court 24 1 instructed plaintiff to provide a new mailing address by July 28, 2025. Dkt. 13. On July 2 24, 2025, the Court re-sent, to an alternate address, the order granting plaintiff an 3 extension of time to respond to the Court’s order to show cause. On September 16, 4 2025, the Court sua sponte granted plaintiff another opportunity to amend his complaint;

5 plaintiff was instructed to file his proposed amended complaint by October 7, 2025. Dkt. 6 15. The Court informed plaintiff that if he did not file a timely amended complaint or 7 indicate a willingness to prosecute his case, the Court would recommend that his case 8 be dismissed for failure to prosecute. Dkt. 15. 9 Plaintiff has failed to respond to the Court’s order to show cause or communicate 10 with the Court to indicate a willingness to prosecute his case. 11 DISCUSSION 12 i. Failure to Prosecute 13 Federal Rule of Civil Procedure 41(b) provides that “[f]or failure of the plaintiff to 14 prosecute or to comply with these rules or any order of court, a defendant may move for

15 dismissal of an action.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), 16 the Supreme Court recognized that a federal district court has the inherent power to 17 dismiss a case sua sponte for failure to prosecute, even though the language of Rule 18 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a party. 19 And, in appropriate circumstances, the Court may dismiss a complaint for failure to 20 prosecute even without notice or hearing. See id. at 633. 21 In determining whether plaintiff's failure to prosecute warrants dismissal of the case, 22 the Court must weigh the following five factors: “(1) the public's interest in expeditious 23 resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice

24 1 to the defendants; (4) the public policy favoring disposition of cases on their merits; and 2 (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th 3 Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The 4 first two of these factors favor the imposition of sanctions in most cases, while the fourth

5 factor cuts against a default or dismissal sanction. Thus, the key factors are prejudice 6 and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 7 1990). 8 Here, the first and second factors favor dismissal of the case. The third factor weighs 9 against dismissal because the defendants have not been served in this case. The fourth 10 factor, as always, weighs against dismissal. The fifth factor requires the Court to 11 consider whether a less drastic alternative is available. The Court has already ordered 12 plaintiff to show cause why this matter should not be dismissed and has given plaintiff 13 more than one opportunity to amend the complaint. Plaintiff has not responded to the 14 Court’s most recent order. The Court finds that only one less drastic sanction is

15 realistically available. 16 Rule 41(b) provides that a dismissal for failure to prosecute operates as an 17 adjudication upon the merits “[u]nless the court in its order for dismissal otherwise 18 specifies.” In the instant case, the Court finds that a dismissal with prejudice would be 19 unnecessarily harsh. The complaint and this action should therefore be dismissed 20 without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 21 ii. Failure to State Claim 22 Additionally, plaintiff’s proposed complaint (Dkt. 1-1), and this action, should be 23 dismissed without prejudice for failure to state a claim.

24 1 The Court must dismiss the complaint of a prisoner proceeding in forma pauperis 2 “at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) 3 “fails to state a claim on which relief may be granted”’ or (c) “seeks monetary relief 4 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C.

5 § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. 6 Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984), abrogated on other grounds 7 by Neitzke v. Williams, 490 U.S. 319 (1989). 8 Before the Court may dismiss the complaint as frivolous or for failure to state a 9 claim it “must provide the [prisoner] with notice of the deficiencies of [the] complaint and 10 an opportunity to amend the complaint prior to dismissal.” McGuckin v. Smith, 974 F.2d 11 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 12 104 F.3d 1133 (9th Cir. 1997); see also Sparling v. Hoffman Construction, Co., Inc., 864 13 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987). 14 Leave to amend need not be granted “where the amendment would be futile or where

15 the amended complaint would be subject to dismissal.” Saul v. United States, 928 F.2d 16 829, 843 (9th Cir. 1991) (citing Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 17 Cir.1990); Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir.1989)). 18 The Court liberally construes pro se documents. Estelle v. Gamble, 429 U.S. 97, 19 106 (1976). Yet, Rule 8(a) of the Federal Rules of Civil Procedure provides that in order 20 for a pleading to state a claim for relief it must contain a short and plain statement of the 21 grounds for the court’s jurisdiction, a short and plain statement of the claim showing that 22 the pleader is entitled to relief, and a demand for the relief sought. The statement of the 23

24 1 claim must be sufficient to “give the defendant fair notice of what the plaintiff’s claim is 2 and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). 3 To avoid dismissal, a complaint must contain sufficient factual matter, accepted 4 as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.

5 662, 664 (2009). The factual allegations must be “enough to raise a right to relief above 6 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 7 complaint may be dismissed if it lacks a cognizable legal theory or states insufficient 8 facts to support a cognizable legal theory. Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 9 2013). A complaint is frivolous if it “lacks an arguable basis in law or in fact.” Neitzke v. 10 Williams, 490 U.S. 319, 325 (1989); Wainscott v. San Diego Cty., 9 F.3d 1555 (9th Cir. 11 1993). 12 To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the 13 conduct complained of was committed by a person acting under color of state law, and 14 (2) the conduct deprived a person of a right, privilege, or immunity secured by the

15 Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), 16 overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). The first step in a 17 § 1983 claim is therefore to identify the specific constitutional right allegedly infringed. 18 Albright v. Oliver, 510 U.S. 266, 271 (1994). To satisfy the second prong, a plaintiff must 19 allege facts showing how individually named defendants caused, or personally 20 participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637 F.2d 21 1350, 1355 (9th Cir. 1981). Section 1983 is the appropriate avenue to remedy an 22 alleged wrong only if both of these elements are present. Haygood v. Younger, 769 23 F.2d 1350, 1354 (9th Cir. 1985).

24 1 1. Habeas Corpus 2 Plaintiff alleges he has experienced significant procedural errors concerning a 3 criminal case currently pending, including “unwarranted delays, arbitrary rulings, and 4 denial of access to necessary court records and exculpatory evidence” in violation of his

5 Fourteenth Amendment and Sixth Amendment rights. Dkt. 1-1 at 3. He further alleges 6 his counsel is “ineffective” and “unqualified.” Id. 7 Plaintiff’s speedy trial, ineffective assistance of counsel, and due process claims—to 8 the extent that his due process claims challenge criminal proceedings against him— 9 must be raised in a habeas corpus petition rather than in a Section 1983 complaint. An 10 “action lying at the core of habeas corpus is one that goes directly to the constitutionality 11 of the prisoner's physical confinement itself and seeks either immediate release from 12 that confinement or the shortening of its duration.... With regard to such actions, habeas 13 corpus is now considered the prisoner's exclusive remedy.” Preiser v. Rodriguez, 411 14 U.S. 475, 503 (1973) (internal quotation omitted). “A habeas petition under section 2241

15 is the appropriate vehicle for a challenge to a person's detention when the person is in 16 custody, but not pursuant to the judgment of a state court, e.g., it is the appropriate 17 basis for a challenge to detention by a pretrial detainee.” Dyer v. Allman, No. 18-CV- 18 04513-RS (PR), 2018 WL 4904910, at *1 (N.D. Cal. Oct. 9, 2018) (citing Hoyle v. Ada 19 Cty, 501 F.3d 1053, 1058 (9th Cir. 2007)). “A civil rights action, in contrast, is the proper 20 method of challenging conditions of confinement.” Badea v. Cox, 931 F.2d 573, 574 (9th 21 Cir. 1991). 22 Here, plaintiff’s speedy trial, ineffective assistance of counsel, and due process 23 claims—to the extent that his due process claims challenge the criminal proceedings

24 1 against him—must be raised in a habeas corpus petition rather than in a § 1983 2 complaint. Plaintiff therefore fails to state a claim upon which relief can be granted. 3 2. Younger Abstention 4 Further, if this case is filed as a § 1983 action, or is filed as a habeas corpus petition,

5 the speedy trial, ineffective assistance of counsel, and due process claims challenging 6 pending state criminal charges should not be heard in federal court under the Younger 7 abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). 8 Under Younger, abstention from interference with pending state judicial proceedings 9 is appropriate when: “(1) there is ‘an ongoing state judicial proceeding’; (2) the 10 proceeding ‘implicate[s] important state interests’; (3) there is ‘an adequate opportunity 11 in the state proceedings to raise constitutional challenges’; and (4) the requested relief 12 ‘seek[s] to enjoin’ or has ‘the practical effect of enjoining’ the ongoing state judicial 13 proceeding.” Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (quoting 14 ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir.

15 2014)). Federal courts, however, do not invoke the Younger abstention if there is a 16 “showing of bad faith, harassment, or some other extraordinary circumstance that would 17 make abstention inappropriate.” Middlesex Cty Ethics Comm'n v. Garden State Bar 18 Ass'n, 457 U.S. 423, 435 (1982). 19 First, plaintiff asserts he is a pre-trial detainee with ongoing state proceedings. 20 Second, as these proceedings involve a criminal prosecution, they implicate important 21 state interests. See Kelly v. Robinson, 479 U.S. 36, 49 (1986); Younger, 401 U.S. at 22 43–44. Third, plaintiff has failed to allege facts showing he has been denied an 23 adequate opportunity to address the alleged constitutional violations in the state court

24 1 proceedings. Finally, plaintiff raises claims that would effectively enjoin the ongoing 2 state judicial proceeding. 3 As Younger abstention applies to plaintiff's claims, plaintiff's speedy trial, ineffective 4 assistance of counsel, and due process claims are not properly raised in federal court.

5 3. Legal Mail 6 Plaintiff next alleges his legal mail was opened outside of his presence. Dkt. 1-1 7 at 4. He does not allege who opened his mail or when it happened. Plaintiff is required 8 to allege facts showing how individually named defendants caused, or personally 9 participated in causing, the harm alleged in the complaint. See Leer v. Murphy, 844 10 F.2d 628, 633 (9th Cir. 1988); Arnold v. Int'l Bus. Machines Corp., 637 F.2d 1350, 1355 11 (9th Cir. 1981). Sweeping conclusory allegations against an official are insufficient to 12 state a claim for relief. Leer, 844 F.2d at 633. 13 A person subjects another to a deprivation of a constitutional right when 14 committing an affirmative act, participating in another's affirmative act, or omitting to

15 perform an act which is legally required. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 16 1978). Further, a § 1983 suit cannot be based on vicarious liability alone, but must 17 allege the defendant's own conduct violated the plaintiff's civil rights. City of Canton v. 18 Harris, 489 U.S. 378, 385–90 (1989). 19 Therefore, because plaintiff did not identify the defendants who allegedly opened 20 his mail, explain which defendant did what particular acts (or failed to act) or when that 21 occurred, plaintiff has failed to state a claim under Section 1983. 22 4. 42 U.S.C. 1985 and 1986 23

24 1 Finally, plaintiff alleges defendants conspired to deprive plaintiff of his civil rights, 2 “including withholding evidence, providing unqualified legal counsel, and maintaining 3 unlawful detention” in violation of 42 U.S.C. 1985 and 1986. To state a claim under 4 section 1985, a plaintiff must allege: (1) the purpose of the conspiracy was to deprive

5 the plaintiff of equal protection or to obstruct the course of justice in the state; (2) the 6 defendant intended to discriminate against the plaintiff; (3) the defendant acted under 7 color of state law; and (4) the acts done in furtherance of the conspiracy resulted in an 8 injury to the plaintiff's person or property. Sykes v. California Dep't of Motor Vehicles, 9 497 F.2d 197, 200 (9th Cir. 1974). “[T]he second of these four elements requires that in 10 addition to identifying a legally protected right, a plaintiff must demonstrate a deprivation 11 of that right motivated by some racial, or perhaps otherwise class-based, invidiously 12 discriminatory animus behind the conspirators’ action.” Sever v. Alaska Pulp Corp., 978 13 F.2d 1529, 1536 (9th Cir. 1992) (quotation marks and citation omitted). 14 Here, the proposed complaint does not contain sufficient allegations supporting

15 the required elements of a 42 U.S.C. § 1985 claim. Plaintiff does not identify which 16 defendant allegedly conspired against him. He further does not allege that a particular 17 defendant was motivated to deprive plaintiff of his rights. 18 To plead a Section 1986 claim, a plaintiff must first plead a “preexisting violation 19 of § 1985.” Benshoof v. Admon, No. 2:23-CV-1392, 2024 WL 3227137, at *18 (W.D. 20 Wash. June 28, 2024) (citing Gattineri v. Town of Lynnfield, Massachusetts, 58 F.4th 21 512, 516 (1st Cir. 2023)). Because plaintiff fails to allege a Section 1985 claim, he also 22 fails to allege a claim under Section 1986. 23

24 1 In sum, plaintiff has failed to state a claim, his IFP motion should be denied, and his 2 complaint should be dismissed without prejudice. 3 CONCLUSION 4 Plaintiff’s IFP motion should be DENIED, and his proposed complaint (Dkt. 1) should

5 be DISMISSED without prejudice. 6 Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have 7 fourteen (14) days from service of this report to file written objections. See also Fed. R. 8 Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes 9 of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a 10 waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 11 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). 12 Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is directed to 13 set the matter for consideration on October 30, 2025, as noted in the caption. 14

15 16 Dated this 15th day of October, 2025. 17 18 19 A

Theresa L. Fricke 20 United States Magistrate Judge

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