Lay v. Olson
This text of Lay v. Olson (Lay v. Olson) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 SCOTT T LAY, Case No. 3:25-cv-05122-BHS 7 Plaintiff, v. ORDER 8 ESTATE OF MICHAEL DAVID OLSEN et 9 al, 10 Defendants. 11 This matter comes before the Court on plaintiff’s motion to proceed in forma 12 pauperis (“IFP”) regarding his proposed complaint. Dkt. 1. Plaintiff is unrepresented by 13 counsel. This matter has been referred for review of the IFP application. Mathews, 14 Sec’y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule 15 MJR 4(a)(4). 16 Because there are deficiencies in the complaint (discussed below), the Court will 17 not direct service of the complaint at this time. On or before April 15, 2025, plaintiff is 18 ORDERED to either (1) show cause why this cause of action should not be dismissed 19 or (2) file an amended complaint addressing the deficient aspects of the proposed 20 complaint. 21 DISCUSSION 22 The district court may permit indigent litigants to proceed IFP upon completion of 23 a proper affidavit of indigency. See 28 U.S.C. §1915(a). But the court has broad 24 1 discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 2 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). 3 A court should “deny leave to proceed in forma pauperis at the outset if it 4 appears from the face of the proposed complaint that the action is frivolous or without
5 merit.” Tripati v. First Nat’l Bank & Tr., 821 F.2d 1368, 1369 (9th Cir. 1987) (citations 6 omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis complaint is 7 frivolous if “it ha[s] no arguable substance in law or fact.” Tripati, 821 F.2d at 1370 8 (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 9 745 F.2d 1221, 1228 (9th Cir. 1984). 10 A pro se plaintiff’s complaint is to be construed liberally, but like any other 11 complaint it must nevertheless contain factual assertions sufficient to support a facially 12 plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 13 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when 14 “the plaintiff pleads factual content that allows the court to draw the reasonable
15 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 16 678. 17 Unless it is clear that no amendment can cure the defects of a complaint, a pro 18 se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to 19 amend prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 20 (9th Cir.1995). Leave to amend need not be granted “where the amendment would be 21 futile or where the amended complaint would be subject to dismissal.” Saul v. United 22 States, 928 F.2d 829, 843 (9th Cir. 1991). 23
24 1 A. Rule 8 2 Under Federal Rule of Civil Procedure (Fed. R. Civ. P.) 8(a), a complaint must 3 contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to 4 relief.” Fed. R. Civ. P. 8(a). Plaintiff must allege facts that would plausibly show they are
5 entitled to any relief. Mere conclusory statements in a complaint and “formulaic 6 recitation[s] of the elements of a cause of action” are not sufficient. Ashcroft v. Iqbal, 7 556 U.S. 662, 681 (2009); Chavez v. United States, 683 F.3d 1102, 1108-09 (9th Cir. 8 2012). “Dismissal can be based on the lack of a cognizable legal theory or the absence 9 of sufficient facts alleged under a cognizable legal theory.” Ballistreri v. Pacifica Police 10 Dept., 901 F.2d 696, 699 (9th Cir. 1990). 11 Here plaintiff names twelve defendants and asserts claims based on allegations 12 that an unlicensed mortgage broker committed various acts and that fiduciary duties 13 were breached, owed by individuals who had a knowledge of the broker’s actions. Dkt. 14 1-1.
15 Plaintiff alleges that the partnership of Olson, Blair, Macleod, Gruenkemier and 16 others violated multiple Washington State laws and federal laws related to the sale of 17 property in Gig Harbor, but he does not explain what actions the individuals took or how 18 the acts constituted a violation of these laws. See Dkt. 1-1 at 4-5. Plaintiff also alleges 19 these violations were caused using a commercial deed of trust in a primary residence or 20 finance without a licensed mortgage broker who is placing the loan against the 21 company, but again, plaintiff does not explain which defendants committed an act or 22 omission, or how any act or failure to act, by any individual, led to the violations alleged. 23 See id. at 5-7. Plaintiff has not alleged sufficient factual assertions to support a facially
24 1 plausible claim for relief. See Iqbal, 556 U.S. at 678. Therefore, plaintiff must either 2 show cause why this matter should not be dismissed for failure to state a claim, or file 3 an amended complaint. 4 In addition, plaintiff attaches as an exhibit an “Amended Complaint” to alert the
5 Court that he filed a lawsuit in Pierce County Superior Court. See Dkt. 1-2. If plaintiff 6 files an amended complaint, it is permissible to have attachments to the amended 7 complaint. Evidentiary exhibits are allowed as attachments in support of plaintiff’s 8 allegations – but an attachment is not a substitute for a complaint. Therefore, plaintiff is 9 directed to include relevant facts in the body of the amended complaint. 10 CONCLUSION 11 Due to the deficiencies described above, the Court will not serve the Proposed 12 Complaint (Dkt. 1-1). If plaintiff intends to pursue this action, he must file an amended 13 complaint to cure, if possible, the deficiencies noted herein, on or before April 15, 14 2025.
15 The amended complaint will act as a complete substitute for the original 16 complaint, and not as a supplement. Any fact or cause of action alleged in the original 17 complaint that is not alleged in the amended complaint is waived. Forsyth v. Humana, 18 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds, Lacey v. 19 Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).
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