1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Apr 16, 2024 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 GENEVA LANGWORTHY, No. 2:24-CV-00089-MKD 8 Plaintiff, ORDER DISMISSING PLAINTIFF’S COMPLAINT WITH PREJUDICE 9 v. ECF No. 1 10 ZACH MYERS,
11 Defendant.
12 Before the Court is Plaintiff’s pro se Complaint, filed on March 21, 2024. 13 ECF No. 1. By separate Order, the Court granted Plaintiff leave to proceed in 14 forma pauperis. This is the second case Plaintiff has filed in this District this 15 year.1 See Langworthy v. Perky, No. 2:24-CV-00060-MKD (E.D. Wash. Feb. 21, 16 2024). Having reviewed Plaintiff’s Complaint, the Court is fully informed. 17
18 1 Plaintiff has filed multiple actions in other courts in recent years. See, e.g., 19 Langworthy v. Clallam Cnty., No. 23-35204, 2023 WL 10450437, at *1 (9th Cir. 20 Dec. 18, 2023) (dismissing appeal as frivolous); Langworthy v. Settle, No. 3:24- 1 BACKGROUND 2 Plaintiff alleges her right to effective assistance of counsel under the Sixth
3 Amendment of the U.S. Constitution has been violated. ECF No. 1 at 3. Plaintiff 4 alleges Defendant Zach Myers is an attorney who was assigned to represent her in 5 “bogus misdemeanor charges from Clallam County”. Id. at 4. Plaintiff alleges that
6 “[Mr. Meyers] has never spoken to [her] nor taken any action in [her] defense” and 7 that “when [she has] attempted to call his office, the receptionist screams at [her] 8 and then hangs up”. Id. Plaintiff claims that she has been unable to set foot on her 9 property in Clallam County, Washington since June of 2022 because of the
10 inaction of Defendant, and that she cannot access her personal items on the 11 property because there are two warrants against her. Id. at 5. 12 Plaintiff further claims that she cannot obtain her commercial drone license
13 or enter Canada due to the warrants against her, and that she was forced to “flee the 14
15 CV-05080-SAB, 2024 WL 381148 (W.D. Wash. Feb. 1, 2024); Langworthy v. 16 App. L. Firm, No. 2:22-CV-12564, 2023 WL 3186956, at *1 (E.D. Mich. May 1, 17 2023), appeal dismissed, No. 23-1435, 2023 WL 5163989 (6th Cir. May 15, 2023), 18 and appeal dismissed, No. 23-1396, 2023 WL 5841955 (6th Cir. June 7, 2023); 19 Langworthy v. New Mexico State Police, No. 123CV00684DHUJFR, 2023 WL
20 6144505, at *1 (D.N.M. Sept. 20, 2023). 1 State of Washington because of the extraordinary violations of her civil rights.” Id. 2 Plaintiff alleges that Defendant attempted to withdraw from representing her after
3 being appointed for about a year without seeking leave of the Court, but the Court 4 reappointed him. Id. Plaintiff alleges that the “Court is grossly biased against 5 [her]” and the Court reappointed Defendant to continue representing her to thwart
6 her attempts to defend herself. Id. 7 In her Complaint, Plaintiff seeks a jury trial, $500,000 in damages, and an 8 injunction requiring Defendant to seek leave of the Court to withdraw from 9 representing her. Id. at 7.
10 ANALYSIS 11 A. 28 U.S.C. § 1915 Review 12 When an individual seeks to proceed in forma pauperis, the Court is
13 required to review the complaint and dismiss such complaint, or portions of the 14 complaint, if it is “(i) frivolous or malicious; (ii) fails to state a claim upon which 15 relief may be granted; or (iii) seeks monetary relief from a defendant who is 16 immune from such relief.” 28 U.S.C. § 1915(e)(2); Wong v. Bell, 642 F.2d 359,
17 361-62 (9th Cir. 1981). A plaintiff’s claim is frivolous “when the facts alleged rise 18 to the level of the irrational or the wholly incredible, whether or not there are 19 judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504
20 U.S. 25, 32-33 (1992). 1 A claim is legally frivolous when it lacks an arguable basis either in law or 2 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), superseded by statute on other
3 grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 4 banc); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Therefore, the 5 Court may dismiss a claim as frivolous where it is “based on an indisputably
6 meritless legal theory” or where the “factual contentions are clearly baseless.” 7 Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim has 8 an arguable basis in law and fact. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 9 Cir. 1989), superseded by statute on other grounds, Lopez, 203 F.3d at 1130-31;
10 Franklin, 745 F.2d at 1227. 11 The facts alleged in a complaint are to be taken as true and must “plausibly 12 give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
13 Mere legal conclusions “are not entitled to the assumption of truth.” Id. The 14 complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 16 complaint must plead “enough facts to state a claim to relief that is plausible on its
17 face.” Id. at 570. Liberally construing the complaint in the light most favorable to 18 Plaintiff, the Court finds that Plaintiff has failed to state a claim upon which relief 19 may be granted.
20 1 1. Ineffective Assistance of Counsel Claim 2 The issue here is whether Plaintiff has stated a plausible claim that she was
3 denied the effective assistance of counsel. The Supreme Court has recognized that 4 the Sixth Amendment right to counsel exists and is needed to protect the 5 fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 685
6 (1984). To prevail on an ineffective assistance of counsel claim, “a defendant must 7 show (1) that an error by counsel was professionally unreasonable and (2) that 8 there was a reasonable probability that but for counsel’s unprofessional errors, the 9 result of the proceeding would have been different. A reasonable probability is a
10 probability sufficient to undermine confidence in the outcome.” U.S. v. 11 Carmichael, 372 F. Supp. 2d 1331, 1333 (M.D. Ala. 2005) (citing Strickland, 466 12 U.S. at 691-94) (emphasis in original) (quotation marks altered).
13 First, an ineffective assistance of counsel claim cannot be brought in a civil 14 action. See Nelson v. Campbell, 541 U.S. 637, 643 (2004). “Claims for ineffective 15 assistance of counsel are not recognized under § 1983, despite the statute’s ‘literal 16 applicability’ to the Sixth Amendment, because specific appellate and habeas
17 statutes apply.” See id. Plaintiff is not bringing a Section 1983 claim here, 18 however the reasoning of Campbell forecloses her civil action for ineffective 19 assistance of counsel.
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1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Apr 16, 2024 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 GENEVA LANGWORTHY, No. 2:24-CV-00089-MKD 8 Plaintiff, ORDER DISMISSING PLAINTIFF’S COMPLAINT WITH PREJUDICE 9 v. ECF No. 1 10 ZACH MYERS,
11 Defendant.
12 Before the Court is Plaintiff’s pro se Complaint, filed on March 21, 2024. 13 ECF No. 1. By separate Order, the Court granted Plaintiff leave to proceed in 14 forma pauperis. This is the second case Plaintiff has filed in this District this 15 year.1 See Langworthy v. Perky, No. 2:24-CV-00060-MKD (E.D. Wash. Feb. 21, 16 2024). Having reviewed Plaintiff’s Complaint, the Court is fully informed. 17
18 1 Plaintiff has filed multiple actions in other courts in recent years. See, e.g., 19 Langworthy v. Clallam Cnty., No. 23-35204, 2023 WL 10450437, at *1 (9th Cir. 20 Dec. 18, 2023) (dismissing appeal as frivolous); Langworthy v. Settle, No. 3:24- 1 BACKGROUND 2 Plaintiff alleges her right to effective assistance of counsel under the Sixth
3 Amendment of the U.S. Constitution has been violated. ECF No. 1 at 3. Plaintiff 4 alleges Defendant Zach Myers is an attorney who was assigned to represent her in 5 “bogus misdemeanor charges from Clallam County”. Id. at 4. Plaintiff alleges that
6 “[Mr. Meyers] has never spoken to [her] nor taken any action in [her] defense” and 7 that “when [she has] attempted to call his office, the receptionist screams at [her] 8 and then hangs up”. Id. Plaintiff claims that she has been unable to set foot on her 9 property in Clallam County, Washington since June of 2022 because of the
10 inaction of Defendant, and that she cannot access her personal items on the 11 property because there are two warrants against her. Id. at 5. 12 Plaintiff further claims that she cannot obtain her commercial drone license
13 or enter Canada due to the warrants against her, and that she was forced to “flee the 14
15 CV-05080-SAB, 2024 WL 381148 (W.D. Wash. Feb. 1, 2024); Langworthy v. 16 App. L. Firm, No. 2:22-CV-12564, 2023 WL 3186956, at *1 (E.D. Mich. May 1, 17 2023), appeal dismissed, No. 23-1435, 2023 WL 5163989 (6th Cir. May 15, 2023), 18 and appeal dismissed, No. 23-1396, 2023 WL 5841955 (6th Cir. June 7, 2023); 19 Langworthy v. New Mexico State Police, No. 123CV00684DHUJFR, 2023 WL
20 6144505, at *1 (D.N.M. Sept. 20, 2023). 1 State of Washington because of the extraordinary violations of her civil rights.” Id. 2 Plaintiff alleges that Defendant attempted to withdraw from representing her after
3 being appointed for about a year without seeking leave of the Court, but the Court 4 reappointed him. Id. Plaintiff alleges that the “Court is grossly biased against 5 [her]” and the Court reappointed Defendant to continue representing her to thwart
6 her attempts to defend herself. Id. 7 In her Complaint, Plaintiff seeks a jury trial, $500,000 in damages, and an 8 injunction requiring Defendant to seek leave of the Court to withdraw from 9 representing her. Id. at 7.
10 ANALYSIS 11 A. 28 U.S.C. § 1915 Review 12 When an individual seeks to proceed in forma pauperis, the Court is
13 required to review the complaint and dismiss such complaint, or portions of the 14 complaint, if it is “(i) frivolous or malicious; (ii) fails to state a claim upon which 15 relief may be granted; or (iii) seeks monetary relief from a defendant who is 16 immune from such relief.” 28 U.S.C. § 1915(e)(2); Wong v. Bell, 642 F.2d 359,
17 361-62 (9th Cir. 1981). A plaintiff’s claim is frivolous “when the facts alleged rise 18 to the level of the irrational or the wholly incredible, whether or not there are 19 judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504
20 U.S. 25, 32-33 (1992). 1 A claim is legally frivolous when it lacks an arguable basis either in law or 2 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), superseded by statute on other
3 grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 4 banc); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Therefore, the 5 Court may dismiss a claim as frivolous where it is “based on an indisputably
6 meritless legal theory” or where the “factual contentions are clearly baseless.” 7 Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim has 8 an arguable basis in law and fact. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 9 Cir. 1989), superseded by statute on other grounds, Lopez, 203 F.3d at 1130-31;
10 Franklin, 745 F.2d at 1227. 11 The facts alleged in a complaint are to be taken as true and must “plausibly 12 give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
13 Mere legal conclusions “are not entitled to the assumption of truth.” Id. The 14 complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 16 complaint must plead “enough facts to state a claim to relief that is plausible on its
17 face.” Id. at 570. Liberally construing the complaint in the light most favorable to 18 Plaintiff, the Court finds that Plaintiff has failed to state a claim upon which relief 19 may be granted.
20 1 1. Ineffective Assistance of Counsel Claim 2 The issue here is whether Plaintiff has stated a plausible claim that she was
3 denied the effective assistance of counsel. The Supreme Court has recognized that 4 the Sixth Amendment right to counsel exists and is needed to protect the 5 fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 685
6 (1984). To prevail on an ineffective assistance of counsel claim, “a defendant must 7 show (1) that an error by counsel was professionally unreasonable and (2) that 8 there was a reasonable probability that but for counsel’s unprofessional errors, the 9 result of the proceeding would have been different. A reasonable probability is a
10 probability sufficient to undermine confidence in the outcome.” U.S. v. 11 Carmichael, 372 F. Supp. 2d 1331, 1333 (M.D. Ala. 2005) (citing Strickland, 466 12 U.S. at 691-94) (emphasis in original) (quotation marks altered).
13 First, an ineffective assistance of counsel claim cannot be brought in a civil 14 action. See Nelson v. Campbell, 541 U.S. 637, 643 (2004). “Claims for ineffective 15 assistance of counsel are not recognized under § 1983, despite the statute’s ‘literal 16 applicability’ to the Sixth Amendment, because specific appellate and habeas
17 statutes apply.” See id. Plaintiff is not bringing a Section 1983 claim here, 18 however the reasoning of Campbell forecloses her civil action for ineffective 19 assistance of counsel.
20 1 Second, criminal defendants must initially seek post-conviction relief in 2 state courts. Christensen v. Nguyen, No. 220CV01770APGDJA, 2020 WL
3 6136220, at *4 (D. Nev. Oct. 19, 2020) (citing Morgano v. Smith, 879 P.2d 735, 4 739 n.3 (Nev. 1994) (where instances of alleged negligence are based primarily on 5 the ineffective assistance of counsel, post-conviction proceedings, rather than civil
6 proceedings, provide litigants with a more appropriate forum to present their 7 claims)). As such, a civil action in federal court is not the appropriate forum for 8 the plaintiff to present her claim. 9 Third, an action for legal malpractice or ineffective assistance of counsel
10 does not accrue until the underlying proceeding or criminal case is resolved. Dunn 11 v. Christensen, 2018 WL 615671, at *8 (D. Nev. Jan. 29, 2018). A criminal 12 defendant cannot state a claim of ineffective assistance of counsel until she has
13 suffered prejudice (i.e., damages), even though she reasonably believes counsel 14 committed errors or omissions during the course of the proceedings. Id. (citing 15 Clark v. Robinson, 944 P.2d 788, 790 (Nev. 1997)). Supreme Court precedent 16 shows that an ineffective assistance of counsel claim must be raised in direct
17 appeals, post-conviction, or habeas corpus proceedings. See Campbell, 541 U.S. at 18 643; accord Carmichael, 372 F. Supp. 2d at 1333 (discussing that claims for 19 ineffective assistance of counsel can only be raised in post-conviction proceedings
20 because the very standard used to evaluate such claims presupposes that the claim 1 is raised post-trial). Here, Plaintiff asserts an ineffective assistance of counsel 2 claim without alleging any facts that her criminal trial has concluded, or even that
3 she will proceed to trial on any charges. 4 Putting aside the fact that Plaintiff’s claim is premature, she has not stated a 5 plausible claim for relief. Even construing the sparse facts liberally in favor of
6 Plaintiff, the Court cannot determine how Defendant allegedly deprived Plaintiff of 7 any rights. Plaintiff claims that Defendant is an attorney who was appointed to 8 defend her against “bogus misdemeanor charges” in Clallam County, Washington. 9 ECF No. 1 at 4. However, she has not provided a case number, specified what the
10 charges were, what stage the proceedings are in, or provided any facts to support 11 her contention that Defendant was appointed to defend her against such charges. 12 See id. at 7. Plaintiff claims that she has been forced to “flee the State of
13 Washington because of the extraordinary violations of her civil rights” but does not 14 specify why she has had to flee the state or which of her civil rights were violated. 15 See id. Last, Plaintiff claims that the “Court” is “grossly biased” against her and is 16 conspiring to thwart her attempts to defend herself by reappointing Defendant to
17 represent her. See id. It is not clear which court she refers to, nor does she allege 18 any facts supporting the assertion that a court is conspiring against her. See id. 19 Plaintiff has not demonstrated that Defendant has violated any of her federal
20 constitutional rights. 1 Further, Plaintiff’s claims are mere legal conclusions as she states Defendant 2 has deprived her of her rights and caused damages but does not plead enough facts
3 to state a claim to relief that is plausible on its face. See ECF No. 1; see Iqbal, 556 4 U.S. at 664; see also Twombly, 550 U.S. at 555. Her legal conclusions are not 5 entitled to the presumption of truth. Iqbal, 556 U.S. at 664. In sum, Plaintiff has
6 not demonstrated that this Court has jurisdiction over the case, nor has Plaintiff 7 stated a plausible claim. As such, the Court must dismiss the case with prejudice 8 pursuant to 28 U.S.C. § 1915. 9 The Court declines to grant Plaintiff an opportunity to amend. Unless it is
10 clear that an amendment would be futile, a pro se litigant must be given the 11 opportunity to amend his complaint to correct any deficiencies. Noll v. Carlson, 12 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute on other grounds, 28
13 U.S.C. § 1915(e)(2), as stated in Aktar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 14 2012). Plaintiff cannot overcome the fact that the Sixth Amendment does not 15 create a civil cause of action, nor could she cure the fact that her ineffective 16 assistance of counsel claim was premature by alleging further facts. As the
17 deficiencies cannot be cured, allowing amendment would be futile. Fed. R. Civ. P. 18 15(a)(2); Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing 19 Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988)).
20 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Complaint, ECF No. 1, is DISMISSED WITH
3 PREJUDICE. 4 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order, 5 provide copies to pro se Plaintiff, and CLOSE the file.
6 DATED April 16, 2024.
7 s/Mary K. Dimke MARY K. DIMKE 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16
17 18 19