Alem v. Ter-veen

• Court: District Court, W.D. Washington
• Decided: April 29, 2022
• Docket: 2:22-cv-00409
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6

7 EZRA ALEM, Case No. C22-409RSM 8 Plaintiff, ORDER REVOKING IN FORMA 9 PAUPERIS ON APPEAL v. 10

11 WILLIAM TER-VEEN, et al.,

12 Defendants. 13 This matter comes before the Court on a referral from the Ninth Circuit Court of 14 Appeals to determine whether in forma pauperis (“IFP”) status should continue on appeal. Dkt. 15 16 #30. Pro se Plaintiff Ezra Alem was granted leave to proceed in forma pauperis in this matter 17 on April 4, 2022. Dkt. #5. At the time, the reviewing Magistrate Judge stated he “recommends 18 the complaint be reviewed under 28 U.S.C. § 1915(e)(2)(B) before issuance of summons.” Id. 19 The Court conducted that review, permitted Mr. Alem to amend his complaint, reviewed again, 20 issued an Order to Show Cause, reviewed the many responses from Mr. Alem, and ultimately 21 22 concluded that his claims were properly dismissed as frivolous under that statute. Mr. Alem 23 has appealed this decision dismissing his claims. Dkt. #27. 24 Where, as here, a party was permitted to proceed IFP in the District Court, the party 25 may proceed on appeal in forma pauperis without further authorization unless the District Court 26 certifies in writing that the appeal is not taken in good faith or that the party is not otherwise 27 28 entitled to proceed IFP. Fed. R. App. P. 24(a)(3); 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good 1 2 faith.”). An appeal is taken in “good faith” where it seeks review of at least one issue or claim 3 that is found to be “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th 4 Cir. 2002). An issue is “frivolous” where it “lacks an arguable basis either in law or in fact.” 5 Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are those “based on an 6 indisputably meritless legal theory,” such as claims against defendants who are immune from 7 8 suit or for infringement of a legal interest that clearly does not exist. Id. at 327. 9 In this case, Mr. Alem brought suit against Snohomish Patrol Sergeant William Ter- 10 veen, Snohomish County Prosecuting Attorney Constance M. Crawley, and Special Agent in 11 Charge Donald M. Voiret. Dkt. #11 at 2. Plaintiff alleged violations of the Due Process Clause 12 13 and False Claims Act, as well as police and prosecutorial misconduct. Id. The incident 14 involving these Defendants and these claims clearly occurred in 2013. Id. at 8. Plaintiff 15 alleged that Sgt. Ter-Veen was dispatched to a Crisis Residential Center in Arlington. Id. He 16 was then “detained for the alleged crime of an assault in the 4th degree against a civilian.” Id. 17 He pleaded that he was the real victim in the altercation, and that Sgt. Ter-Veen threatened him 18 19 to get down on the ground and that he was afraid he was going to get shot during the arrest. Id. 20 He said that he was confused during the prosecution, did not think people would believe him, 21 and that he “pleaded guilty before receiving a trial or the opportunity to know what happened.” 22 Id. at 9. He was then placed on the “Violent Person File” by Prosecutor Constance M. 23 Crawley. Id. After this incident and prosecution, he experienced numerous other interactions 24 25 with law enforcement, including the Seattle Police in 2019, at the Social Security 26 Administration building in 2019, and an unknown off duty police officer at Bartell Drugs in 27 2020. Id. at 9–10. He believes that many of these incidents are due in part to him being placed 28 on the “Violent Person File” or some other kind of FBI watch list. He sought 10 million 1 2 dollars. Id. at 4. 3 Plaintiff subsequently submitted records from the Snohomish County Sheriff’s Office. 4 See Dkt. #21-1. These records refer to the placement of a subject on the “NCIC Violent Person 5 File” in 2014, 2015, 2016, 2017, and 2018. See id. The name of the subject is redacted. 6 The Court, after reviewing the entire record, concluded as follows: 7 8 Plaintiff’s Amended Complaint suffers from deficiencies that require dismissal. See 28 U.S.C. § 1915(e)(2)(B). It is devoid of 9 sufficient citations to law to bring a cause of action against these Defendants for these claims. Even if Plaintiff were to cite to §1983 10 or another valid source of law, any such claim is untimely given 11 that eight years have passed since the encounter with these Defendants. The Amended Complaint fails to sufficiently allege 12 how these Defendants are legally responsible for the ongoing 13 placement of Plaintiff on a cautionary watchlist, or how placement on that list has proximately caused Plaintiff the alleged injuries. 14 The Court notes that Plaintiff, given the opportunity to address the issue of timeliness, has attached records indicating placement on 15 the Violent Person File only as of February 2018, more than three 16 years prior to filing this lawsuit.

17 Plaintiff has failed to adequately allege how Defendant Ter-Veen has violated the law by applying for Plaintiff to be placed on this 18 list. Plaintiff admits he was convicted of the underlying crime. 19 Plaintiff repeatedly indicates that his placement on this list is based on a lie, however Plaintiff cannot challenge his conviction for the 20 underlying crime through these claims, and any such challenge is likely untimely. In any event, Plaintiff has failed to show how 21 Defendants have proximately caused his alleged damages. Given 22 all of the above, dismissal under U.S.C. § 1915(e)(2)(B) is warranted. 23 Dkt. #24 at 3–4. 24 25 For the reasons set forth above, the Court continues to believe that any appeal of this 26 ruling necessarily lacks an arguable basis in law or in fact. The Court cannot find that 27 28 Plaintiff’s appeal has been taken in good faith, and maintains that, by its assessment of the 1 2 Amended Complaint, Plaintiff’s claims are legally frivolous. 3 Accordingly, the Court hereby FINDS AND ORDERS that Plaintiff’s in forma pauperis 4 status is REVOKED. 5 DATED this 29th day of April, 2022. 6 7 A 8 RICARDO S. MARTINEZ 9 CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28