Fisenko v. Torres

• Court: District Court, W.D. Washington
• Decided: July 8, 2025
• Docket: 3:25-cv-05365
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 OLGA FISENKO, et al., CASE NO. 3:25-cv-05365-KKE-GJL 9 Plaintiffs, v. ORDER DECLINING SERVICE 10 AND TO SHOW CAUSE FLOR TORRES, et al., 11 Defendants. 12

13 Plaintiffs Olga Fisenko, proceeding pro se and on behalf of her brother, Plaintiff 14 Vladimir Nikolenko, initiated what she identifies as a civil rights action under 42 U.S.C. § 1983, 15 42 U.S.C. § 1985, Rule 60(b)(3) and (6) of the Federal Rules of Civil Procedure, Bivens v. Six 16 Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),1 and “related 17 constitutional doctrines.” Dkts. 1, 4. The filing fee has been paid. See Dkt. Having reviewed and 18 screened the Complaint under 28 U.S.C. § 1915A, the Court DECLINES to serve the Complaint 19 and, instead, DIRECTS Plaintiffs to SHOW CAUSE why the claims should not be raised in a 20 habeas corpus petition filed solely by Plaintiff Nikolenko rather than a civil rights action filed by 21 both Plaintiffs. 22

23 1 Damages actions against federal officials for Constitutional violations must be brought under Bivens, which is the judicially crafted counterpart to 42 U.S.C. § 1983 that is virtually identical except for the replacement of a state 24 actor with a federal actor. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). 1 I. BACKGROUND 2 This action was initiated on April 30, 2025.2 See Dkt. 4. While the Court references both 3 Plaintiffs, it is important to note that all filings in this action are signed by Plaintiff Fisenko 4 only—either on her own behalf or on behalf of Plaintiff Nikolenko. Plaintiff Fisenko is an

5 individual currently residing in Brush Prairie, Washington, while her brother, Plaintiff 6 Nikolenko, is a state prisoner currently incarcerated at Coyote Ridge Corrections Center 7 (“CRCC”) in Connell, Washington. See id. 8 In the Complaint, Plaintiffs allege Defendants, a mix of ostensible state and federal 9 officials, violated their federal constitutional rights in connection with the criminal conviction of 10 Plaintiff Nikolenko in Clark County Superior Court. See id. Plaintiffs request declaratory and 11 injunctive relief, and damages. Id. 12 II. SCREENING STANDARD 13 Because this action was filed listing Mr. Nikolenko, an incarcerated individual, as a 14 Plaintiff, the Court will review and screen the Complaint under 28 U.S.C. § 1915A.

15 Under the Prison Litigation Reform Act of 1996, the Court must screen proposed 16 complaints brought by prisoners seeking relief against a governmental entity or officer or 17 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the 18 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to 19 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant 20 who is immune from such relief.” 28 U.S.C. § 1915A(b); see also 28 U.S.C. §1915(e)(2)(B); 21 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 22

23 2 On May 2, 2025, Plaintiff Fisenko filed a Motion to Accept Late Filing Nunc Pro Tunc, which the Court construes as a Motion for Leave to File an Amended Complaint. See Dkt. 5. Upon review, the Court GRANTS the Motion. 24 Dkt. 5. The Complaint at Dkt. 4 shall serve as the operative Complaint in this action. 1 The Court is required to liberally construe pro se documents. Estelle v. Gamble, 429 U.S. 2 97, 106 (1976). However, a complaint must contain “a short and plain statement of the claim 3 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Each allegation must be 4 simple, concise, and direct.” Fed. R. Civ. P. 8(d). Even pro se pleadings must raise the right to

5 relief beyond the speculative level and must provide “more than labels and conclusions, and a 6 formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 7 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A plaintiff must 8 set forth specific, plausible facts to support their claims. Ashcroft v. Iqbal, 556 U.S. 662, 678–83 9 (2009). 10 After screening a pro se complaint, the Court must generally grant leave to file an 11 amended complaint if there is a possibility the pleading deficiencies may be cured through 12 amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992); Akhtar v. Mesa, 698 13 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint without 14 leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be

15 cured by amendment.’”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 16 1988)). However, if the claims put forth in the complaint are frivolous or lack any arguable 17 substance in law or fact, then the Court should dismiss the complaint without leave to amend. 28 18 U.S.C. § 1915A(b); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (claims properly dismissed as 19 frivolous under the PLRA are “those claims whose factual contentions are clearly baseless” and 20 “claims describing fantastic or delusional scenarios”). 21 // 22 // 23

24 1 III. DISCUSSION 2 Having reviewed the Complaint, the Court notes the following deficiencies. 3 A. Plaintiff Vladimir Nikolenko 4 Initially, the Court notes that Plaintiff Fisenko purports to file this action on behalf of

5 herself and her brother, Mr. Nikolenko. See Dkts. 1, 4, 5–8. However, Plaintiff Fisenko filed this 6 action pro se and only Plaintiff Fisenko signed the Complaint. See Dkt. 4-1 at 121; Dkt. 4-2 at 7 121 (document signed as “/s/ Olga Fisenko, Olga Fisenko, attorney-in-fact for Plaintiff Vladimir 8 Nikolenko”). The Ninth Circuit has made clear that a pro se litigant has no authority to appear as 9 an attorney for others. See C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 10 1987) (citing Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962); McShane v. United States, 11 366 F.2d 286, 288 (9th Cir. 1966). Because Plaintiff Fisenko has not shown she is an attorney 12 authorized to serve as her brother’s legal representative in this case, any claims she has asserted 13 on his behalf are not properly before the Court.3 14 The same is true with respect to any Motion Plaintiff Fisenko has filed on her brother’s

15 behalf. For instance, Plaintiff Fisenko has filed a Motion to Sever, requesting the Court open a 16 separate case for her brother, Mr. Nikolenko, using the Complaint already docketed in this case 17 to open the new case while proceeding here with Plaintiff Fisenko as the sole named Plaintiff. 18 See Dkt. 10. However, as with the Complaint, Plaintiff Fisenko appears to be filing the Motion to 19 Sever on behalf of herself and Mr. Nikolenko. See id. Because Plaintiff Fisenko does not have 20

21 3 Additionally, it is not apparent that Plaintiff Fisenko has established standing in this case. See Wasson v. Sonoma Cnty. Junior Coll., 203 F.3d 659, 663 (9th Cir. 2000) (“Parties ordinarily are not permitted to assert constitutional 22 rights other than their own.”). Standing is determined as of the commencement of litigation. Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir. 2002). At a “constitutional minimum,” standing requires proof (1) that the plaintiff suffered an injury in fact that is “concrete and particularized” and “actual or imminent, not 23 conjectural or hypothetical,” (2) of a causal connection between that injury and the complained-of conduct, and (3) that a favorable decision will likely redress the alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 24 (1992). The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561. 1 authority to represent her brother, the Court cannot grant the relief she seeks, as it would 2 terminate Mr. Nikolenko as a Plaintiff in this case purportedly without his concurrence. As such, 3 the Motion to Sever is STRICKEN. Dkt. 10. 4 In addition to the Motion to Sever, Plaintiff Fisenko has filed a number of other Motions,

5 again filed on behalf of herself and Plaintiff Nikolenko. See Dkts. 7, 11, 12, 14. For the reasons 6 set forth above, these Motions (Dkts. 7, 11, 12, 14) are STRICKEN. 7 B. General Deficiencies in the Complaint 8 As to the allegations set forth in the pleading itself, the Court finds the Complaint is 9 generally deficient because it does not comply with the requirements of Rule 8(a). More 10 specifically, the Complaint does not contain a short and plain statement of Plaintiffs’ claims and, 11 instead, is a 121-page document with attachments for a total of 254 pages, naming 73 12 Defendants. Dkt. 4. The 121-page Complaint is drafted in what Plaintiffs characterize as five 13 “tiers,” with each “tier” subdivided into further sections. Id. at 3–4. The Complaint is then 14 further subdivided into eleven counts, which are themselves subdivided. Id. at 13–116. Notably,

15 these “tiers,” counts, and sub-counts do not set forth allegations against each of the 73 named 16 Defendants.4 See Dkt. 4. Rather, examining the Complaint in its entirety, it appears to contain a 17 vast array of general allegations relating to the investigation into offenses committed by Plaintiff 18 19 4 Plaintiffs set forth 12 categories of Defendants: (1) “Civilian Defendants,” (2) “Law Enforcement and Related 20 Personnel,” (3) “Prosecutors,” (4) “Defense Attorneys and Investigators,” (5) “Judges, Clerks, and Court Personnel,” (6) “Local and State Institutional Defendants,” (7) “Federal Defendants,” (8) “Institutional Medical Defendants and Respondent Superior,” (9) “King County Actors (Separate Case Involvement),” (10) “Separate Case Civilian 21 Actors,” (11) Corporate or Private Entity Defendants (Non-Medical),” and (12) “DOE Participants.” Dkt. 4 at 7–11. A number of these categories contain improperly named Defendants for this § 1983 action. However, because the 22 Court is directing Plaintiffs to show cause why claims set forth in the Complaint should not be raised in a habeas corpus petition filed by Plaintiff Nikolenko, the Court need not discuss the nature of these 12 categories prior to a 23 response to this Order to Show Cause. To that end, the Court notes the proper respondent for a § 2254 habeas corpus petition is the “state officer having custody” of the petitioner, which is ordinarily “the warden of the facility in 24 which the petitioner is incarcerated.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). 1 Nikolenko, as well as the convictions and sentence of Plaintiff Nikolenko for those offenses. 2 Because of this, the Court cannot discern civil rights allegations forming the factual basis of 3 Plaintiffs’ claims against each Defendant. 4 C. Habeas Corpus versus § 1983 Action

5 To the extent the Complaint represents a challenge to the criminal proceedings against 6 Plaintiff Nikolenko, such claims in the Complaint must be raised in a habeas corpus petition 7 rather than in a § 1983 complaint. 8 “Congress has determined that habeas corpus is the appropriate remedy for state prisoners 9 attacking the validity of the fact or length of their confinement.” Preiser v. Rodriguez, 411 U.S. 10 475, 490 (1973). A habeas petition under 28 U.S.C. § 2254 would—after exhaustion of state 11 court remedies—be the appropriate vehicle to challenge confinement pursuant to a final 12 judgment of conviction. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser, 411 13 U.S. at 498–99))(“A civil rights action, in contrast, is the proper method of challenging 14 conditions of confinement.”).

15 Here, the Complaint appears to challenge, at least in part, the fact of Plaintiff Nikolenko’s 16 confinement and seeks his immediate release. See Dkt. 4. As expressly stated in the Complaint, 17 the violations set forth in the eleven counts relate to, among other things, the pretrial, trial, and 18 post-trial phases of Plaintiff Nikolenko’s criminal proceedings in Clark County. See id. at 12. 19 This is further evidenced by the Complaint’s “Prayer for Relief,” 20 This is not a case of negligence or oversight. This is a case of systemic fraud upon the court, prosecutorial misconduct, deliberate suppression of evidence, and the 21 unlawful detention of an innocent man.

22 The factual record shows not one isolated violation, but a coordinated failure of multiple institutions—spanning law enforcement, prosecution, defense, the 23 judiciary, and state and federal oversight bodies.

24 1 Plaintiff seeks not only relief for past harm but immediate correction of an ongoing constitutional injustice, including the release and full exoneration of Vladimir 2 Nikolenko, who remains incarcerated under a conviction built on fabricated narratives, falsified records, and intentional concealment of exculpatory evidence. 3 Dkt. 4 at 118. 4 Accordingly, because Plaintiff Nikolenko appears to be challenging the fact of his 5 custody and seeks immediate release, those claims are properly raised in a petition for writ of 6 habeas corpus pursuant to 28 U.S.C. § 2254, not a § 1983 complaint. 7 IV. INSTRUCTIONS 8 Due to the deficiencies described above, the Court WILL NOT SERVE Plaintiffs’ 9 Complaint. Dkt. 4. Instead, if Plaintiffs intend to pursue this § 1983 civil rights action, they must 10 SHOW CAUSE why the claims related to Plaintiff Nikolenko’s state conviction and sentence 11 should not be raised in a habeas corpus petition filed solely by Plaintiff Nikolenko rather than a 12 civil rights action filed by both Plaintiffs. In addition, Plaintiff Fisenko must SHOW CAUSE 13 why she should not be dismissed from this case, as the allegations in the Complaint appear to be 14 related solely to the state criminal proceedings against Plaintiff Nikolenko and it does not appear 15 Plaintiff Fisenko is authorized to prosecute such claims on his behalf. 16 // 17 // 18 // 19

24 1 If Plaintiffs do not file a response to this Order or should they fail to adequately address the 2 issues raised herein on or before August 6, 2025, the undersigned will RECOMMEND 3 DISMISSAL of this action. The Court WILL NOT ACCEPT any filings signed only by Plaintiff 4 Fisenko that purport to be filed on behalf of Plaintiff Nikolenko. Both Plaintiffs are advised that

5 any such filings will be SUMMARILY STRICKEN from the record in this case. 6 7 Dated this 8th day of July, 2025. 8 A 9 10 Grady J. Leupold United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24