Card v. Owens

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 TONY LAMAR CARD, CASE NO. 3:24-cv-05839-DGE 11 Plaintiff, v. REPORT AND RECOMMENDATION 12 CHERIE CHRISTINE OWENS, Noting Date: December 4, 2024 13 Defendant. 14

15 The District Court has referred Plaintiff Tony Lamar Card’s pending Application to 16 Proceed In Forma Pauperis (“IFP”) and Proposed Complaint to United States Magistrate Judge 17 Grady J. Leupold pursuant to Amended General Order 11-22. 18 On October 1, 2024, Plaintiff filed a Proposed Complaint and an Application to Proceed 19 IFP, that is, without paying the filing fee for a civil case. See Dkts. 1, 1-1. The IFP Application 20 was referred to the undersigned on October 2, 2024. See Dkt. 3. On October 7, 2024, the Court 21 screened Plaintiff’s Proposed Complaint and found it was deficient because, pursuant to Federal 22 Rule of Civil Procedure 8, Plaintiff failed to state a claim upon which relief may be granted. See 23 Dkt. 4. In that Order, the Court gave Plaintiff leave to file an amended complaint to cure the 24 1 deficiencies by November 7, 2024, and re-noted the pending IFP Application. Id. The Court 2 warned that failure to file a proposed amended complaint would result in the Court 3 recommending the dismissal of this matter without prejudice. Id. 4 Prior to the due date for filing an amended complaint, Plaintiff filed three documents with

5 the Court outlining his grievances against several federal and state officials and including 6 potential accusations of “treason” on the part of these officials. See Dkts. 5–7. Two of these 7 documents, docketed as “Affidavit of Truth,” and “Notice to the Court,” include a recitation of 8 facts in numbered paragraphs which he asserts are in compliance with Federal Rule of Civil 9 Procedure 10 and relate to Plaintiff’s allegations of unlawful arrest and kidnapping. See Dkt. 5 at 10 2–4; Dkt. 7 at 8–10. 11 Not one of the three tendered documents can be construed as an amended complaint, as 12 none contain “a short and plain statement of the claim showing that the pleader is entitled to 13 relief.” Fed. R. Civ. P. 8(a). See also Dkts. 5–7. Further, in addition to finding these documents 14 lack the form and substance of a complaint, the Court also notes they do not describe, or show

15 cause, why the Proposed Complaint (Dkt. 1-1) should not be dismissed, as none provide 16 sufficient facts to support a claim for relief or a cognizable legal theory. See Dkts. 5–7; see also 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (“Dismissal [of a 18 complaint] can be based on the lack of a cognizable legal theory or the absence of sufficient facts 19 alleged under a cognizable legal theory.”). 20 The date for filing an amended complaint has now passed and Plaintiff has failed to 21 comply with the Court’s October 7, 2024, Order (Dkt. 4). He has not filed a proposed amended 22 complaint correcting the deficiencies contained within the Proposed Complaint or otherwise 23 responded to the Court’s Order. As Plaintiff has failed to respond to the Court’s Order and

24 1 prosecute this case, the Court recommends this case be DISMISSED without prejudice and the 2 IFP Application (Dkt. 1) be DENIED as moot. 3 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties 4 shall have fourteen (14) days from service of this report to file written objections. See also Fed.

5 R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of 6 de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of 7 those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda 8 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time 9 limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on 10 December 4, 2024, as noted in the caption. 11 Dated this 19th day of November, 2024. 12 A 13 14 Grady J. Leupold United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24