Silva v. Lewis County Prosecutor's Office

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:24-cv-05504-TMC-GJL 11 Plaintiff, v. ORDER DECLINING SERVICE AND LEWIS COUNTY PROSECUTOR'S 14 Defendant.

15 The District Court has referred this prisoner civil rights action to United States Magistrate 16 Judge Grady J. Leupold. After being advised of the pleading deficiencies in his initial Complaint 17 (Dkts. 1-1, 4), Plaintiff Mark Allen Silva, proceeding pro se and in forma pauperis, filed an 18 Amended Complaint (Dkt. 5). Having reviewed and screened the Amended Complaint under 28 19 U.S.C. § 1915A, the Court finds that several deficiencies remain and thus DECLINES to direct 20 service upon Defendant Lewis County Prosecutor’s Office. Instead, Plaintiff is ORDERED to 21 SHOW CAUSE why this action should not be DISMISSED for failure to state a claim and 22 without providing him another opportunity to amend. 23 // 24 2 The Court screened and declined to serve Plaintiff’s initial Complaint (Dkt. 1-1) because 3 the nature of his claims was unclear, he failed to name a proper defendant, and he did not put 4 forth sufficient facts to demonstrate liability. Dkt. 4. After informing Plaintiff of these pleading

5 deficiencies, the Court granted him thirty days of leave to amend and cure his pleadings. Id. 6 Plaintiff filed his Amended Complaint on July 15, 2024. Dkt. 5. As with his initial 7 Complaint, the sole defendant named in Plaintiff’s Amended Complaint is the Lewis County 8 Prosecutor’s Office. Id. at 3. The factual allegations in Plaintiff’s Amended Complaint vary 9 significantly from those included in his initial Complaint and concern his experience as a crime 10 victim and potential witness in an ongoing state court prosecution for assault. Id. at 4–5; Dkt. 1 at 11 4–5 (alleging speedy trial violations and due process violations related to a court ordered in- 12 patient competency evaluation). Plaintiff states that he has attempted to cooperate with the 13 prosecutors assigned to a state-court assault case by providing written statements about the 14 assault. Id. at 4–5. However, Plaintiff does not wish to formally testify out of concern for his

15 safety. Id. Although he says he has communicated these concerns to the State, Plaintiff alleges 16 that the prosecutors assigned to the assault case continue to harass him. Id. 17 As for the nature of the alleged harassment, Plaintiff states that he has been transported 18 between different institutions against his will, presumably in connection with an ongoing 19 prosecution of the assault case. Id. at 5. He also states that his criminal defense attorney informed 20 him that the outcome of his own state court prosecution may be impacted by his refusal to testify 21 in the assault case. Id. at 6. Plaintiff concludes by stating that “they have been putting holds on 22 me and hindering my life and where I could go or do on the streets and in prison for 4 years.” Id. 23

24 1 Plaintiff organizes the above allegations into a single claim labeled: “Equal protection, 2 harassment, intimidating a witness, [and] coercion.” Id. at 4 (cleaned up). As relief, Plaintiff 3 requests monetary damages and injunctive relief. Id. at 9.

5 Under the Prison Litigation Reform Act of 1996 (“PLRA”), the Court must screen 6 complaints brought by prisoners seeking relief against governmental entities and the officers and 7 employees thereof. 28 U.S.C. § 1915A(a). The Court must “dismiss the complaint, or any portion 8 of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which 9 relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such 10 relief.” 28 U.S.C. § 1915A(b); see also 28 U.S.C. §1915(e)(2)(B); Barren v. Harrington, 152 11 F.3d 1193, 1194 (9th Cir. 1998). Dismissal on these grounds counts as a “strike” under 28 U.S.C. 12 § 1915(g). 13 To sustain a 42 U.S.C. § 1983 claim, Plaintiff must show that he suffered a violation of 14 rights protected by the Constitution or created by federal statute, and that the violation was

15 proximately caused by a person acting under color of state or federal law. West v. Atkins, 487 16 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff must 17 provide more than conclusory allegations; he must set forth specific, plausible facts to support 18 his claims. Ashcroft v. Iqbal, 556 U.S. 662, 678–83 (2009). 19 After informing a pro se litigant of any pleading deficiencies, a court must generally 20 grant leave to file an amended complaint if there is a possibility the pleading deficiencies may be 21 cured through amendment. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992); Akhtar v. 22 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se 23 complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the

24 1 complaint could not be cured by amendment.’”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 2 1203–04 (9th Cir. 1988)). However, if the claims put forth in the complaint lack any arguable 3 substance in law or fact, then the complaint must be dismissed. 28 U.S.C. § 1915A(b); Neitzke v. 4 Williams, 490 U.S. 319, 327 (1989).

6 Having reviewed the Amended Complaint, the Court finds that the Plaintiff seeks relief 7 against an improper defendant for claims that do not appear to warrant relief. These deficiencies 8 prevent Plaintiff from stating a cognizable § 1983 claim and appear to be uncurable. 9 A. Improper Defendant 10 Plaintiff has not named a proper defendant in this action, and it is unlikely he will be able 11 to do so for several reasons. 12 First, Plaintiff names Lewis County Prosecutor’s Office as the sole Defendant in this 13 action. Dkt. 5 at 3. As stated previously, Lewis County—not its governmental subunits—would 14 be the proper defendant for Plaintiff’s official capacity claim against a county-level entity. Dkt. 4

15 at 4–5. 16 Second, even if Plaintiff named the proper county-level defendant, he has not alleged 17 sufficient facts to demonstrate county liability. To present a viable claim against a county, 18 Plaintiff must show that the county itself violated his rights or that it directed its employee to do 19 so. Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1994). Under this 20 theory of liability, the focus is on the county’s “policy statement, ordinance, regulation, or 21 decision officially adopted and promulgated by that body’s Officers.” City of St. Louis v. 22 Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690). A county is not 23 vicariously responsible for the acts of its employees, meaning a county cannot be held liable

24 1 simply because it employs an individual who violates the law. See Monell v. Dept. of Soc. Servs., 2 436 U.S. 658, 694 (1978). Plaintiff’s allegations lack detail about the specific decisions that 3 harmed him, who made those decisions, and the reasons those decision were made. As such, he 4 does not present sufficient facts to show county liability.

5 Third, Plaintiff does not name any individual prosecutors as defendants in this action, but 6 he does refer to the conduct of prosecutors generally. Thus, to the extent Plaintiff wishes to sue a 7 prosecutor individually, he fails to demonstrate that any prosecutor personally participated in 8 violating his rights. For individual capacity claims, the causation element is only satisfied if a 9 plaintiff demonstrates that a specific defendant committed an affirmative act, participated in 10 another’s affirmative act, or omitted to perform an act which he was legally required to do that 11 caused the deprivation of rights. Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 12 1981) (citing Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). “The inquiry into 13 causation must be individualized and focus on the duties and responsibilities of each individual 14 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer 15 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 16 Fourth, even if Plaintiff named an individual prosecutor as a defendant and demonstrated 17 their personal participation, prosecutors are immune from damages claims “when performing the 18 traditional functions of an advocate.” Calhoun v. King Cty. Prosecuting Attorney’s Office, 348 F. 19 App’x 299, 300 (9th Cir. 2009) (quotations omitted). Stated differently, prosecutorial immunity 20 protects prosecutors from monetary liability for acts done within the scope of their duties to 21 initiate criminal prosecutions and to present the State’s case. See Imbler v. Pachtman, 424 U.S. 22 409, 431 (1976). “Such immunity applies even if it leaves ‘the genuinely wronged defendant 23 without civil redress against a prosecutor whose malicious or dishonest action deprives him of 24 1 liberty.’” Asheleman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (quoting Imbler, 424 U.S. at 2 427). Plaintiff’s allegations apparently concern performance of traditional prosecutorial functions 3 and, if so, any damages claim against an individual prosecutor would be barred by prosecutorial 4 immunity.

5 B. Improper Claims 6 Next, the precise nature of Plaintiff’s claim is difficult to decipher, but, liberally 7 construed, it appears he is alleging two different constitutional violations: (1) a violation of equal 8 protection and (2) a compelled testimony claim. Both versions of his claim are deficient in a 9 manner not likely to be cured by amendment. 10 First, Plaintiff states he is bringing an equal protection claim. Dkt. 5 at 3. The Equal 11 Protection Clause “is essentially a direction that all persons similarly situated should be treated 12 alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). An 13 allegation that “different persons are treated differently is not enough without more, to [plead] a 14 denial of Equal Protection.” Griffin v. County Sch. Bd. of Prince Edward County, 377 U.S. 218,

15 230 (1964). Instead, a plaintiff must plausibly allege that his different treatment lacked rational 16 basis or was “because of” his membership to a protected class. Garnica v. Washington Dep’t of 17 Corr., 965 F. Supp. 2d 1250, 1275 (W.D. Wash. 2013), aff’d, 639 F. App’x 484 (9th Cir. 2016) 18 (quoting Seltzer–Bey v. Delo, 66 F.3d 961, 964 (8th Cir.1995)). Therefore, to state an Equal 19 Protection claim, a plaintiff must plausibly allege that a defendant acted without rational basis or 20 with an intent or purpose to discriminate against him based on his membership to a protected 21 class. See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (quotations and citations 22 omitted). 23

24 1 Plaintiff does not allege that his treatment resulted from his membership to a protected 2 class or that it lacked a rational basis. Moreover, he fails to put forth sufficient facts 3 differentiating the treatment he has received from the normal inconveniences and discomforts 4 inherent to criminal prosecution and incarceration. By way of example, Plaintiff vaguely asserts

5 that, ever since he became a victim of assault, “they have been putting holds on me and 6 hindering my life….” Dkt. 5 at 5. It is unclear what these holds and hinderances are, who 7 imposed them, and for what reason. Even without these additional details, it appears the 8 circumstances Plaintiff is describing are typical inconveniences and constraints consequent to 9 supervised release, pre-trial detention, and/or participating as a witness in a criminal prosecution. 10 Thus, Plaintiff’s allegations cannot provide the foundation for an equal protection claim. 11 Second, Plaintiff also describes his claim as one for “harassment, intimidating a witness, 12 [and] coercion.” Dkt. 5 at 3 (cleaned up). In this way, Plaintiff appears to be bringing a claim 13 akin to a Fifth Amendment compelled testimony claim. 14 However, the Fifth Amendment only shields individuals from compelled self-

15 incrimination—it does not prevent the State from compelling testimony from crime victims or 16 witnesses other than the accused. See generally United States v. Jenkins, 785 F.2d 1387, 1393 17 (9th Cir. 1986) (noting that even where a criminal defendant is subpoenaed, “the Supreme Court 18 made clear that an obligation to appear and testify truthfully does not constitute compulsion to 19 give incriminating testimony”) (citing Minnesota v. Murphy, 465 U.S. 420, 427–28 (1984)). In 20 fact, the Supreme Court has ranked “the power to compel testimony, and the corresponding duty 21 to testify,” as among the “necessary and most important of the powers of the States …to assure 22 the effective functioning of government in an ordered society.” Kastigar v. United States, 406 23 U.S. 441, 443–44 (1972).

24 1 This power is not without limitation. For example, the State may not compel false 2 testimony from a witness or otherwise engage in misconduct that undermines the fundamental 3 fairness of criminal proceedings. See, e.g., United States v. Goodwin, 625 F.2d 693, 702–03 (5th 4 Cir. 1980). But these circumstances—which affect the due process rights of criminal defendants,

5 not witnesses—are not at issue in this case. See id. (“Substantial government interference with a 6 defense witness’ free and unhampered choice to testify violates due process rights of the 7 defendant.”). 8 The Court also notes that Washington State law extends certain protections to crime 9 victims, but these statutory protections do not include a right to refuse to testify. See Wash. Rev. 10 Code Ann. § 7.69.030. Nor do they override the State’s subpoena powers or outweigh a criminal 11 defendant’s Sixth Amendment right to confront witnesses against them. See generally State v. 12 Ruiz, 176 Wash. App. 623, 638, 309 P.3d 700, 707 (2013) (noting that when the State elicits 13 testimony over a witness’s refusal “the State is not attempting to exploit a privilege, but, rather, 14 is attempting to gain evidence from a witness who has no legal basis to decline to provide the

15 information”). Thus, to the extent Plaintiff is raising a compelled testimony claim, he is unable to 16 do so based on the facts and circumstances raised in his Amended Complaint. 17 In summary, Plaintiff has failed to name a proper defendant for his claim, he has not put 18 forth sufficient facts to demonstrate liability for either an individual or official capacity claim, 19 and his specific constitutional claims are difficult to decipher and appear nonviable. The Court 20 finds it unlikely that Plaintiff will be able to cure all his pleadings deficiencies through 21 amendment. Accordingly, Plaintiff must show cause why this action should not be dismissed for 22 failure to state a claim and without leave to file a second amended complaint. The Court notes 23 that dismissal for failure to state a claim constitutes a “strike” under 28 U.S.C. § 1915(g).

24 2 For these reasons, the Court DECLINES to direct service of the Amended Complaint 3 and instead ORDERS Plaintiff to SHOW CAUSE why this action should not be DISMISSED 4 for failure to state a claim and without the opportunity to amend. Plaintiff must respond to this

5 Show Cause Order not later than September 20, 2024. Failure to show cause by the stated 6 deadline will be deemed a failure to prosecute and will result in a recommendation this action be 7 dismissed. 8 Alternatively, Petitioner may choose to voluntarily dismiss this action pursuant to Rule 9 41(a)(1)(A) of the Federal Rules of Civil Procedure on or before the stated deadline. 10 Dated this 20th day of August, 2024. 11 A 12 13 Grady J. Leupold United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24