1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 SHERMAN SHELBY STARTZ, CASE NO. C25-6121-KKE 8
Plaintiff(s), 28 U.S.C. § 1915 SCREENING ORDER 9 v.
10 DEPARTMENT OF DEFENSE, et al.,
11 Defendant(s).
12 Plaintiff Sherman Shelby Startz, representing himself, filed this action and applied to 13 proceed in forma pauperis (“IFP”). Dkt. No. 1. United States Magistrate Judge Grady J. Leupold 14 granted Plaintiff’s IFP application on December 22, 2025, but recommended that the Court review 15 his complaint under 28 U.S.C. § 1915(e)(2)(B) before summons are issued. Dkt. No. 4. Startz has 16 additionally filed two identical applications requesting the Court appoint counsel to represent him 17 in this action. Dkt Nos. 16, 17. For the reasons below, the Court dismisses Startz’s complaint 18 with leave to amend (Dkt. No. 5), and denies Startz’s motions to appoint counsel (Dkt. Nos. 16, 19 17). 20 I. ANALYSIS 21 A complaint filed by any person seeking to proceed IFP under 28 U.S.C. § 1915(a) is 22 subject to sua sponte review and dismissal by the Court “at any time” to the extent the complaint 23 is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary 24 1 relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 2 254 F.3d 845, 845 (9th Cir. 2001) (applying § 1915 review to non-prisoner IFP plaintiffs). 3 Dismissal is proper when there is either a “lack of a cognizable legal theory or the absence of
4 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 5 F.2d 696, 699 (9th Cir. 1988). A complaint must contain factual allegations sufficient “to raise a 6 right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 7 Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain statement 8 of the grounds for the court’s jurisdiction” and “a short and plain statement of the claim showing 9 that the pleader is entitled to relief[.]” Although Rule 8 “does not require ‘detailed factual 10 allegations,’ [] it demands more than an unadorned, the-defendant-unlawfully-harmed-me 11 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A 12 plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that
13 the defendant is liable for the misconduct alleged. Id. 14 In this case, Plaintiff brings claims against the Department of Defense, Department of the 15 Army, the Department of Defense Hotline Office, the Department of Criminal Investigative 16 Service, and the United States Army under the Administrative Procedure Act (“APA”) and the 17 Privacy Act. Dkt. No. 5 at 1. Startz also refers to requests he submitted under the Freedom of 18 Information Act (“FOIA”), which the Court construes as a separate claim for relief. Dkt. No. 5 at 19 3. Startz does not seek monetary relief, and instead seeks only to “obtain full disclosure and review 20 of all agency actions … related to any disclosure, report, complaint, communication, allegation, or 21 protected disclosure Plaintiff made at any time[.]” Dkt. No. 5 at 1–2. Plaintiff alleges that he 22 “made multiple protected disclosures” which “triggered internal actions,” that are the subject of
23 this lawsuit. Id. at 3. 24 1 As recommended by Judge Leupold (Dkt. No. 4), the Court has reviewed Plaintiff’s 2 complaint. For the reasons below, the Court finds that Startz fails to state any claim upon which 3 relief may be granted, warranting dismissal of his complaint without prejudice.
4 A. APA Claims 5 The APA provides two avenues through which a plaintiff may seek equitable relief. A 6 court may “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 7 706(1), or “hold unlawful and set aside agency action” that is, “arbitrary, capricious, an abuse of 8 discretion, or otherwise not in accordance with the law,” id. § 706(2). Plaintiff brings claims under 9 both sections. See Dkt. No. 5 at 3–4. 10 The Court turns to Plaintiff’s challenge under section 706(2). “To bring a claim under 5 11 U.S.C. § 706(2), [a] plaintiff[] must identify a final agency action upon which the claim is based.” 12 Hells Canyon Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 930 (9th Cir. 2010); 5
13 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there 14 is no other adequate remedy in a court are subject to judicial review.”). An agency action is final 15 if two conditions are met: (1) “the action must mark the ‘consummation’ of the agency’s 16 decisionmaking process—it must not be of a merely tentative or interlocutory nature,” and (2) “the 17 action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal 18 consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citation 19 omitted). Here, though Startz makes sweeping challenges to “all agency actions,” see Dkt. No. 5 20 at 3, he fails to identify any final agency action upon which his claims are based, thereby 21 precluding judicial review. Hells Canyon, 593 F.3d at 930; see Sw. Airlines Co. v. Dep’t of 22 Transp., 832 F.3d 270, 275 (D.C. Cir. 2016). Thus, Startz’s claim under Section 706(2) fails.
23 The Court turns to Startz’s claim under section 706(1), which “can proceed” only if Startz 24 “asserts that an agency failed to take a discrete agency action that it is required to take.” Norton 1 v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original). As previously described, 2 Startz generally asserts the named Defendants were required to provide various records and lodges 3 a broad challenge to “all agency action related to” several non-descript categories of activities.
4 Dkt. No. 5 at 3. Crucially, Startz has not identified any “discrete” action any named Defendant 5 must have taken—nor has he provided any authority under which the named agencies were 6 required to have acted. Norton, 542 U.S. at 64. “[T]he only agency action that can be compelled 7 under the APA is action legally required.” Id. (emphasis in original). Because Startz fails to 8 identify any particular agency action that any named Defendant was “legally required” to take, his 9 claim for relief under Section 706(1) also fails. 10 B.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 SHERMAN SHELBY STARTZ, CASE NO. C25-6121-KKE 8
Plaintiff(s), 28 U.S.C. § 1915 SCREENING ORDER 9 v.
10 DEPARTMENT OF DEFENSE, et al.,
11 Defendant(s).
12 Plaintiff Sherman Shelby Startz, representing himself, filed this action and applied to 13 proceed in forma pauperis (“IFP”). Dkt. No. 1. United States Magistrate Judge Grady J. Leupold 14 granted Plaintiff’s IFP application on December 22, 2025, but recommended that the Court review 15 his complaint under 28 U.S.C. § 1915(e)(2)(B) before summons are issued. Dkt. No. 4. Startz has 16 additionally filed two identical applications requesting the Court appoint counsel to represent him 17 in this action. Dkt Nos. 16, 17. For the reasons below, the Court dismisses Startz’s complaint 18 with leave to amend (Dkt. No. 5), and denies Startz’s motions to appoint counsel (Dkt. Nos. 16, 19 17). 20 I. ANALYSIS 21 A complaint filed by any person seeking to proceed IFP under 28 U.S.C. § 1915(a) is 22 subject to sua sponte review and dismissal by the Court “at any time” to the extent the complaint 23 is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary 24 1 relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 2 254 F.3d 845, 845 (9th Cir. 2001) (applying § 1915 review to non-prisoner IFP plaintiffs). 3 Dismissal is proper when there is either a “lack of a cognizable legal theory or the absence of
4 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 5 F.2d 696, 699 (9th Cir. 1988). A complaint must contain factual allegations sufficient “to raise a 6 right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 7 Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain statement 8 of the grounds for the court’s jurisdiction” and “a short and plain statement of the claim showing 9 that the pleader is entitled to relief[.]” Although Rule 8 “does not require ‘detailed factual 10 allegations,’ [] it demands more than an unadorned, the-defendant-unlawfully-harmed-me 11 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A 12 plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that
13 the defendant is liable for the misconduct alleged. Id. 14 In this case, Plaintiff brings claims against the Department of Defense, Department of the 15 Army, the Department of Defense Hotline Office, the Department of Criminal Investigative 16 Service, and the United States Army under the Administrative Procedure Act (“APA”) and the 17 Privacy Act. Dkt. No. 5 at 1. Startz also refers to requests he submitted under the Freedom of 18 Information Act (“FOIA”), which the Court construes as a separate claim for relief. Dkt. No. 5 at 19 3. Startz does not seek monetary relief, and instead seeks only to “obtain full disclosure and review 20 of all agency actions … related to any disclosure, report, complaint, communication, allegation, or 21 protected disclosure Plaintiff made at any time[.]” Dkt. No. 5 at 1–2. Plaintiff alleges that he 22 “made multiple protected disclosures” which “triggered internal actions,” that are the subject of
23 this lawsuit. Id. at 3. 24 1 As recommended by Judge Leupold (Dkt. No. 4), the Court has reviewed Plaintiff’s 2 complaint. For the reasons below, the Court finds that Startz fails to state any claim upon which 3 relief may be granted, warranting dismissal of his complaint without prejudice.
4 A. APA Claims 5 The APA provides two avenues through which a plaintiff may seek equitable relief. A 6 court may “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 7 706(1), or “hold unlawful and set aside agency action” that is, “arbitrary, capricious, an abuse of 8 discretion, or otherwise not in accordance with the law,” id. § 706(2). Plaintiff brings claims under 9 both sections. See Dkt. No. 5 at 3–4. 10 The Court turns to Plaintiff’s challenge under section 706(2). “To bring a claim under 5 11 U.S.C. § 706(2), [a] plaintiff[] must identify a final agency action upon which the claim is based.” 12 Hells Canyon Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 930 (9th Cir. 2010); 5
13 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there 14 is no other adequate remedy in a court are subject to judicial review.”). An agency action is final 15 if two conditions are met: (1) “the action must mark the ‘consummation’ of the agency’s 16 decisionmaking process—it must not be of a merely tentative or interlocutory nature,” and (2) “the 17 action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal 18 consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citation 19 omitted). Here, though Startz makes sweeping challenges to “all agency actions,” see Dkt. No. 5 20 at 3, he fails to identify any final agency action upon which his claims are based, thereby 21 precluding judicial review. Hells Canyon, 593 F.3d at 930; see Sw. Airlines Co. v. Dep’t of 22 Transp., 832 F.3d 270, 275 (D.C. Cir. 2016). Thus, Startz’s claim under Section 706(2) fails.
23 The Court turns to Startz’s claim under section 706(1), which “can proceed” only if Startz 24 “asserts that an agency failed to take a discrete agency action that it is required to take.” Norton 1 v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original). As previously described, 2 Startz generally asserts the named Defendants were required to provide various records and lodges 3 a broad challenge to “all agency action related to” several non-descript categories of activities.
4 Dkt. No. 5 at 3. Crucially, Startz has not identified any “discrete” action any named Defendant 5 must have taken—nor has he provided any authority under which the named agencies were 6 required to have acted. Norton, 542 U.S. at 64. “[T]he only agency action that can be compelled 7 under the APA is action legally required.” Id. (emphasis in original). Because Startz fails to 8 identify any particular agency action that any named Defendant was “legally required” to take, his 9 claim for relief under Section 706(1) also fails. 10 B. Privacy Act Claims 11 Startz also brings claims under the Privacy Act, and references FOIA once in his complaint. 12 “Under both the Privacy Act and FOIA, a requester generally must exhaust administrative
13 remedies by fulfilling an agency’s administrative appeals requirements as set forth in its 14 regulations before turning to the courts.” Haleem v. U.S. Dep’t of Def., CV 23-1471 (JEB), 2024 15 WL 230289 (D.D.C. Jan. 22, 2024) (citing Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61–62 16 (D.C. Cir. 1990)); see Hewitt v. Grabicki, 794 F.2d 1373, 1377 (9th Cir. 1986); see also Corbett 17 v. Transp. Sec. Admin., 116 F.4th 1024, 1028 (9th Cir. 2024). As written, Startz’s complaint 18 alleges no facts supporting that he has satisfied either the Privacy Act’s or FOIA’s administrative 19 exhaustion requirements. “For instance, the complaint does not allege that Plaintiff filed a request 20 for records to any government agency, what records he requested, whether the agency acted on his 21 request, or whether Plaintiff administratively appealed the agency’s determination as required 22 before suing.” LeVigne v. Sides, C25-1816-KKE, 2025 WL 3055178, at *2 (W.D. Wash. Oct. 31,
23 2025). Thus, Plaintiff fails to state a claim under either the Privacy Act or FOIA. 24 1 In sum, Startz fails to state any claim on which relief may be granted. Therefore, summons 2 will not issue and this litigation cannot proceed. 3 C. Startz’s Motion to Appoint Counsel is Denied.
4 Generally, no constitutional right to appointed counsel exists in civil actions. Storseth v. 5 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In “exceptional circumstances,” however, a 6 district court may appoint counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1). See, 7 e.g., Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). To decide whether exceptional 8 circumstances exist, the Court must evaluate both “the likelihood of success on the merits [and] 9 the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal 10 issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (cleaned up). 11 Startz filed two identical motions to appoint counsel using the form application approved 12 for use in this district. See Dkt. Nos. 16, 17. Startz contends that he has been unable to locate an
13 attorney who is willing to represent him. Dkt. No. 16 at 2. As to the merits, Startz answered the 14 question “Has [any] … state or federal agency officially determined whether there is reasonable 15 cause to believe that the allegations of his complaint are true?” in the affirmative, identifying the 16 agency which made the finding as “Office of Special Coun[sel] (sic).” Id. Startz, however, fails 17 to provide “the conclusion the agency reached.” Id. 18 The Court has no reason to question Startz’s assertions but finds them inadequate to 19 establish exceptional circumstances for purposes of appointing counsel. Startz has not shown, nor 20 does the Court find, that this case involves complex facts or law. Startz has also not shown an 21 inability to articulate the factual basis of his claims in a fashion understandable to the Court, nor 22 has he shown that he is likely to succeed on the merits of this case. As such, the Court finds that
23 Startz has failed to show the appointment of counsel is appropriate at this time, and will thus deny 24 both of Startz’s applications to appoint counsel. Dkt. Nos. 16, 17. 1 II. CONCLUSION 2 For the foregoing reasons, it is ORDERED that: 3 1) Plaintiff’s complaint (Dkt. No. 5) is DISMISSED without prejudice and WITH
4 LEAVE TO AMEND; 5 2) Plaintiff must file a Second Amended Complaint by May 27, 2026; and 6 3) Plaintiff’s motions to appoint counsel are DENIED (Dkt. Nos. 16, 17). 7 The clerk shall mail Plaintiff a copy of this order along with a copy of the Pro Se Guide to 8 Filing Your Lawsuit in Federal Court. 9 Dated this 27th day of April, 2026. 10 A 11 Kymberly K. Evanson 12 United States District Judge
14 15 16 17 18 19 20 21 22 23 24