1 U.S. FDILISETDR IINC TT HCEO URT EASTERN DISTRICT OF WASHINGTON 2 Feb 08, 2024 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 CARL ALONZO BROOKS, 9 No. 4:23-CV-05163-SAB
10 Plaintiff,
11 v. ORDER OF DISMISSAL 12 NANCY TENNEY; COREY ENDO; K. 13 GALLAGHER; LISA ROBTOY; GEORGE 14 MARLTON; JEFFREY PATNODE; LORI 15 GILKE; ELYSE BALMERT; TATEASHA 16 DAVIS; DENNIS TAUT; THOMAS 17 SAHLBER; LYNN DELANO; KECIA 18 RONGEN; JOHN AUSTIN; JOANNE 19 MAIDA; RICHARD LAROSA; PATRICIA 20 PEREIRA; DAVID WEBBER; JOHN DOE 21 PAGE; TIMOTHY JOHNSON; CAREY 22 HUFFMAN; and NINA ELMORE, 23
24 Defendants.
25 26 Before the Court is a Defendants’ Objection to Removal and Request to Stay 27 Proceedings, ECF No. 3, as requested by Department of Corrections Defendants 28 (“DOC Defendants”) Balmert, Davis, Delano, Gallagher, Larosa, Page, Patnode, 1 Pereira, Ramsdell-Gilkey, Robtoy, Rongen, Taut, Sahlberg, and Webber. 2 Plaintiff is pro se. Defendants Tenney and Endo are represented by Richard 3 Mount. DOC Defendants are represented by Kelly Fitzgerald. No notice of 4 appearance has been filed for Defendants Marlton, Austin, Maida, Johnson, 5 Huffman, and Elmore. 6 The Court directed co-defendants to respond to the Objection to Removal 7 and Request to Stay Proceedings, ECF No. 3, within 10 days of its order. ECF No. 8 4. Defendants Endo and Tenney filed a response. ECF No. 7. Defendants Marlton, 9 Austin, Maida, Johnson, Huffman, and Elmore did not file a response. 10 After reviewing the record and briefing, the Court considered the removed 11 Complaint, ECF No. 1–1, pursuant to 28 U.S.C. § 1915A. The Court sua sponte 12 dismisses the Complaint as untimely and for failure to state a claim upon which 13 relief can be granted. 14 PROCEDURAL HISTORY 15 This case was filed in Franklin County Superior Court on November 9, 16 2023, under case number 23-2-51068-11. Plaintiff brought claims under 42 U.S.C. 17 § 1985 for conspiracy to interfere with civil rights. On December 1, 2023, 18 Defendants Tenney and Endo removed the case to the Eastern District of 19 Washington, pursuant to 28 U.S.C. § 1441(a) for original jurisdiction and 28 20 U.S.C. § 1442(a)(3) for removal by an officer of the courts of the United States 21 acting under color of office or in performance of their duties. Tenney and Endo 22 represented Mr. Brooks in an appeal as Federal Defenders for the Western District 23 of Washington. 24 Plaintiff’s claims in the present case stem, in part, from his Petition for a 25 Writ of Habeas Corpus under 28 U.S.C. § 2241, which he filed on April 22, 2004. 26 He pled guilty to and was convicted of second-degree murder, first-degree rape, 27 first-degree kidnapping, first-degree assault, three counts of first-degree robbery, 28 and first-degree burglary. He received four consecutive life sentences. He did not 1 file a direct appeal of his conviction or sentence. His 2004 petition was dismissed 2 as untimely and with prejudice on January 21, 2005. He appealed the dismissal, 3 and the Ninth Circuit granted the Certificate of Appealability. Assistant Federal 4 Public Defenders, and current Defendants, Tenney and Endo were appointed to 5 represent Plaintiff in his appeal, and the Ninth Circuit affirmed the lower court’s 6 decisions and dismissed Plaintiff’s petition as untimely on March 5, 2007. Tenney 7 and Endo withdrew as counsel. 8 On November 9, 2023, Plaintiff filed the Complaint in this case in Franklin 9 County Superior Court, alleging Tenney and Endo’s representation of him violated 10 his rights under 42 U.S.C. § 1985(3). This filing came roughly 14 years after they 11 represented Plaintiff in his appeal. The claims against the other Defendants involve 12 Indeterminate Sentencing Review Board (“ISRB”) reviews and evaluations, as 13 well as Plaintiff’s representation during his 1978 trial. 14 28 U.S.C. § 1915A REVIEW 15 The Court has a duty under 28 U.S.C. § 1915A to review a prisoner 16 complaint. The statute states: 17 a) The court shall review, before docketing, if feasible or, in any event, 18 as soon as practicable after docketing, a complaint in a civil action in 19 which a prisoner seeks redress from a governmental entity or officer or 20 employee of a governmental entity. (b) On review, the court shall identify cognizable claims or dismiss the 21 complaint, or any portion of the complaint, if the complaint- 22 (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or 23 (2) seeks monetary relief from a defendant who is immune 24 from such relief. 25 26 The Court “must accept as true all allegations of material fact and must 27 construe those facts in the light most favorable to the plaintiff.” Resnick v. Hayes, 28 213 F.3d 443, 447 (9th Cir. 2000) (citing Cooper v. Pickett, 137 F.3d 616, 623 (9th 1 Cir. 1997)). 2 Based on the facts in the Complaint, Plaintiff claims violations of Section 3 1985(3), specifically, which bases the cause of action on a conspiracy to deprive 4 him of equal protection under the laws. The basis of a Section 1985(3) claim “must 5 [contain] some racial, or perhaps otherwise class-based, invidiously discriminatory 6 animus behind the conspirators' action.” Griffin v. Breckenridge, 403 U.S. 88, 102 7 (1971). Plaintiff refers to the discrimination in his case as against “my class of one 8 juvenile,” which does not meet the standard in Griffin. A class of one juvenile is 9 not a suspect class, nor a recognized class under the law. 10 Further, Washington State’s three-year statute of limitations regarding 11 personal injury actions governs federal Section 1985 claims brought in the state. 12 R.C.W. 4.16.080(2); see Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 711 (9th 13 Cir. 1993) (per curiam) (noting state personal injury statutes govern Section 1985 14 claims). 15 Plaintiff’s claim against Defendants Tenney and Endo are time barred by the 16 three-year statute of limitations because the events that underly the claim occurred 17 when Tenney and Endo represented Plaintiff in 2006 and 2007 as Federal 18 Defenders on his appeal. 19 Plaintiff’s claim against DOC Defendants Gallagher, Balmert, Ramsdell- 20 Gilkey, and Davis involve a 2022 ISRB review of Plaintiff’s 1978 sentence. But he 21 fails to explain how they entered into a conspiracy to deprive him of a 22 constitutional right or discriminate against him racially or in a class-based manner. 23 The allegations against these Defendants fail to state a claim upon which relief can 24 be granted. The claim against Defendants Robtoy and Patnode involve a 2018 25 psychological evaluation and are time barred. The claim against Defendants Taut 26 and Sahlberg was from a 2008 ISRB review and are time barred. The claim against 27 Defendant Pereira involves a 2008 ISRB review and psychological evaluation, 28 which is time barred.
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1 U.S. FDILISETDR IINC TT HCEO URT EASTERN DISTRICT OF WASHINGTON 2 Feb 08, 2024 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 CARL ALONZO BROOKS, 9 No. 4:23-CV-05163-SAB
10 Plaintiff,
11 v. ORDER OF DISMISSAL 12 NANCY TENNEY; COREY ENDO; K. 13 GALLAGHER; LISA ROBTOY; GEORGE 14 MARLTON; JEFFREY PATNODE; LORI 15 GILKE; ELYSE BALMERT; TATEASHA 16 DAVIS; DENNIS TAUT; THOMAS 17 SAHLBER; LYNN DELANO; KECIA 18 RONGEN; JOHN AUSTIN; JOANNE 19 MAIDA; RICHARD LAROSA; PATRICIA 20 PEREIRA; DAVID WEBBER; JOHN DOE 21 PAGE; TIMOTHY JOHNSON; CAREY 22 HUFFMAN; and NINA ELMORE, 23
24 Defendants.
25 26 Before the Court is a Defendants’ Objection to Removal and Request to Stay 27 Proceedings, ECF No. 3, as requested by Department of Corrections Defendants 28 (“DOC Defendants”) Balmert, Davis, Delano, Gallagher, Larosa, Page, Patnode, 1 Pereira, Ramsdell-Gilkey, Robtoy, Rongen, Taut, Sahlberg, and Webber. 2 Plaintiff is pro se. Defendants Tenney and Endo are represented by Richard 3 Mount. DOC Defendants are represented by Kelly Fitzgerald. No notice of 4 appearance has been filed for Defendants Marlton, Austin, Maida, Johnson, 5 Huffman, and Elmore. 6 The Court directed co-defendants to respond to the Objection to Removal 7 and Request to Stay Proceedings, ECF No. 3, within 10 days of its order. ECF No. 8 4. Defendants Endo and Tenney filed a response. ECF No. 7. Defendants Marlton, 9 Austin, Maida, Johnson, Huffman, and Elmore did not file a response. 10 After reviewing the record and briefing, the Court considered the removed 11 Complaint, ECF No. 1–1, pursuant to 28 U.S.C. § 1915A. The Court sua sponte 12 dismisses the Complaint as untimely and for failure to state a claim upon which 13 relief can be granted. 14 PROCEDURAL HISTORY 15 This case was filed in Franklin County Superior Court on November 9, 16 2023, under case number 23-2-51068-11. Plaintiff brought claims under 42 U.S.C. 17 § 1985 for conspiracy to interfere with civil rights. On December 1, 2023, 18 Defendants Tenney and Endo removed the case to the Eastern District of 19 Washington, pursuant to 28 U.S.C. § 1441(a) for original jurisdiction and 28 20 U.S.C. § 1442(a)(3) for removal by an officer of the courts of the United States 21 acting under color of office or in performance of their duties. Tenney and Endo 22 represented Mr. Brooks in an appeal as Federal Defenders for the Western District 23 of Washington. 24 Plaintiff’s claims in the present case stem, in part, from his Petition for a 25 Writ of Habeas Corpus under 28 U.S.C. § 2241, which he filed on April 22, 2004. 26 He pled guilty to and was convicted of second-degree murder, first-degree rape, 27 first-degree kidnapping, first-degree assault, three counts of first-degree robbery, 28 and first-degree burglary. He received four consecutive life sentences. He did not 1 file a direct appeal of his conviction or sentence. His 2004 petition was dismissed 2 as untimely and with prejudice on January 21, 2005. He appealed the dismissal, 3 and the Ninth Circuit granted the Certificate of Appealability. Assistant Federal 4 Public Defenders, and current Defendants, Tenney and Endo were appointed to 5 represent Plaintiff in his appeal, and the Ninth Circuit affirmed the lower court’s 6 decisions and dismissed Plaintiff’s petition as untimely on March 5, 2007. Tenney 7 and Endo withdrew as counsel. 8 On November 9, 2023, Plaintiff filed the Complaint in this case in Franklin 9 County Superior Court, alleging Tenney and Endo’s representation of him violated 10 his rights under 42 U.S.C. § 1985(3). This filing came roughly 14 years after they 11 represented Plaintiff in his appeal. The claims against the other Defendants involve 12 Indeterminate Sentencing Review Board (“ISRB”) reviews and evaluations, as 13 well as Plaintiff’s representation during his 1978 trial. 14 28 U.S.C. § 1915A REVIEW 15 The Court has a duty under 28 U.S.C. § 1915A to review a prisoner 16 complaint. The statute states: 17 a) The court shall review, before docketing, if feasible or, in any event, 18 as soon as practicable after docketing, a complaint in a civil action in 19 which a prisoner seeks redress from a governmental entity or officer or 20 employee of a governmental entity. (b) On review, the court shall identify cognizable claims or dismiss the 21 complaint, or any portion of the complaint, if the complaint- 22 (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or 23 (2) seeks monetary relief from a defendant who is immune 24 from such relief. 25 26 The Court “must accept as true all allegations of material fact and must 27 construe those facts in the light most favorable to the plaintiff.” Resnick v. Hayes, 28 213 F.3d 443, 447 (9th Cir. 2000) (citing Cooper v. Pickett, 137 F.3d 616, 623 (9th 1 Cir. 1997)). 2 Based on the facts in the Complaint, Plaintiff claims violations of Section 3 1985(3), specifically, which bases the cause of action on a conspiracy to deprive 4 him of equal protection under the laws. The basis of a Section 1985(3) claim “must 5 [contain] some racial, or perhaps otherwise class-based, invidiously discriminatory 6 animus behind the conspirators' action.” Griffin v. Breckenridge, 403 U.S. 88, 102 7 (1971). Plaintiff refers to the discrimination in his case as against “my class of one 8 juvenile,” which does not meet the standard in Griffin. A class of one juvenile is 9 not a suspect class, nor a recognized class under the law. 10 Further, Washington State’s three-year statute of limitations regarding 11 personal injury actions governs federal Section 1985 claims brought in the state. 12 R.C.W. 4.16.080(2); see Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 711 (9th 13 Cir. 1993) (per curiam) (noting state personal injury statutes govern Section 1985 14 claims). 15 Plaintiff’s claim against Defendants Tenney and Endo are time barred by the 16 three-year statute of limitations because the events that underly the claim occurred 17 when Tenney and Endo represented Plaintiff in 2006 and 2007 as Federal 18 Defenders on his appeal. 19 Plaintiff’s claim against DOC Defendants Gallagher, Balmert, Ramsdell- 20 Gilkey, and Davis involve a 2022 ISRB review of Plaintiff’s 1978 sentence. But he 21 fails to explain how they entered into a conspiracy to deprive him of a 22 constitutional right or discriminate against him racially or in a class-based manner. 23 The allegations against these Defendants fail to state a claim upon which relief can 24 be granted. The claim against Defendants Robtoy and Patnode involve a 2018 25 psychological evaluation and are time barred. The claim against Defendants Taut 26 and Sahlberg was from a 2008 ISRB review and are time barred. The claim against 27 Defendant Pereira involves a 2008 ISRB review and psychological evaluation, 28 which is time barred. 1 Plaintiff's claims against Defendants Maida and Austin relate to the attorneys’ actions in his 1978 plea agreement and presentation of the case, and they are time barred. Plaintiffs claims against Defendant Marlton relates to Marlton’s alleged agreement to represent Plaintiff in a 2008 attempt to attack his criminal 5|| conviction, and is time barred. Plaintiff's claims against Defendants Johnson, Huffman, and Elmore involve a March 2022 to March 2023 motion Plaintiff alleges they were working but fails to identify they conspired to deprive him of his 8|| rights. 9 Plaintiff fails to note specific factual bases for his claim against Defendants Delano, Larosa, Page, Webber, and Rongen. 11 No other defendants or claims remain to review. 12 Accordingly, IT IS HEREBY ORDERED: 13 1. Plaintiff's Complaint, ECF No. 1-1, is DISMISSED. 14 2. DOC Defendants’ Objection to Removal and Request to Stay 15|| Proceedings, ECF No. 3, is DENIED as moot. 16 IT IS SO ORDERED. The District Court Clerk is directed to enter this 17|| Order, provide copies to counsel and pro se Plaintiff, and close the file. 18 DATED this 8th day of February 2024. 19 20 21 22 23 S fo £ 74 a 24 Stanley A. Bastian 25 Chief United States District Judge 26 27 28
ORDER OFR NINMISSAT *45