Brenden v. Carlson et al, No. 2:2012cv00872 - Document 4 (W.D. Wash. 2012)
Court Description: ORDER denying 2 Plaintiff's Motion for TRO; denying 3 Plaintiff's Motion to Proceed In Forma Pauperis and Dismissing the complaint with leave to amend. The court ORDERS Mr. Brenden, within 20 days of the date of this order, to file an amended complaint which corrects the deficiencies described below or to otherwise show cause why his complaint should not be dismissed for lack of subject matter jurisdiction and for failure to state a claim under Federal Rules of Civil Procedure 8 and 12, by Judge James L. Robart.(MD, mailed copy of order, IFP form to pltf)
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Brenden v. Carlson et al Doc. 4 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JERRY A. BRENDEN, Plaintiff, 11 v. 12 13 LORI CARLSON, et al., Defendants. 14 15 16 CASE NO. C12-872 JLR I. ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS, DENYING MOTION FOR TEMPORARY RESTRAINING ORDER, AND DISMISSING THE COMPLAINT WITH LEAVE TO AMEND INTRODUCTION Before the court is pro se Plaintiff Jerry A. Brenden’s motions for temporary 17 restraining order (Dkt. # 2) and to proceed in forma pauperis (Dkt. # 3). Having 18 reviewed the motions, the court DENIES Mr. Brenden’s motion for a temporary 19 restraining order, and DENIES Mr. Brenden’s motion to proceed in forma pauperis but 20 without prejudice. 21 In addition, the court has reviewed Mr. Brenden’s complaint (Dkt # 1), which fails 22 to allege any grounds for the court’s exercise of subject matter jurisdiction and is largely ORDER- 1 Dockets.Justia.com 1 incomprehensible. Accordingly, the court ORDERS Mr. Brenden, within 20 days of the 2 date of this order, to file an amended complaint which corrects the deficiencies described 3 below or to otherwise show cause why his complaint should not be dismissed for lack of 4 subject matter jurisdiction and for failure to state a claim under Federal Rules of Civil 5 Procedure 8 and 12. 6 7 II. BACKGROUND Mr. Brenden has filed at least two prior actions in this court against Defendant 8 Sellen Construction. (See Brenden v. Sellen Construction, Case No. C05-1681RSL 9 (W.D. Wash.) & Brenden v. Sellen Construction, Case No. C05-0427RSM (W.D. 10 Wash.).) Although the allegations in Mr. Brenden’s prior actions are difficult to discern, 11 his previous complaints appear to relate to a claim that he filed with the Washington State 12 Department of Labor and Industries for worker’s compensation benefits arising out of an 13 injury he sustained in 1999 while employed at Sellen Construction. Both of Mr. 14 Brenden’s prior actions were dismissed either on summary judgment or for failure to 15 state a claim. (See Case No. C05-1681RSL (Dkt. ## 59, 60); Case No. C05-0427RSM 16 (Dkt. ## 14, 15).) 17 On May 18, 2012, Mr. Brenden filed the present action alleging claims not only 18 against Sellen Construction, but several other defendants as well, including Lori Carlson, 19 Lisa Vivial, Eberl Vivian, Gary K. Weeks, the Department of Labor and Industries, Dave 20 Treaty, Division I of the Washington State Court of Appeals, and “Others.” (See Compl. 21 (Dkt. # 1) at 1.) Based on the court’s review of Mr. Brenden’s present complaint, the 22 court believes that the instant action may relate again in some way to Mr. Brenden’s prior ORDER- 2 1 worker’s compensation claim, his prior employment with Defendant Sellen Construction, 2 and an order from the Department of Labor and Industries denying payment to one of Mr. 3 Brenden’s healthcare providers in 2003. (See generally Compl. (Dkt. # 1).) However, 4 the specifics of any wrongs alleged by Mr. Brenden are impossible to discern. The few 5 allegations that Mr. Brenden has stated are generally incomprehensible and include 6 statements such as the following: 7 8 My Body is at Risk to me and to others today and as it was in 2000 when the legal course was for the defendants to stand on the part of my back that was not the primary injurt of Lumbar over Thourastic part of my back. 9 (Compl. at 2.) In addition, Mr. Brenden’s complaint contains no factual allegations 10 referencing any defendant other than the Department of Labor and Industries. Finally, 11 his complaint also fails to allege any grounds for the court’s exercise of subject matter 12 jurisdiction here. 13 Mr. Brenden also styled his complaint as an emergency motion for a temporary 14 restraining order and as a request to proceed in forma pauperis. (See id. at 1.) Despite 15 his request to proceed in forma pauperis, at the time that Mr. Brenden filed his complaint, 16 he paid his filing fee in full. (See Dkt. # 1 (referencing “Receipt # SEA049247”).) 17 On May 25, 2012, Mr. Brenden filed two motions. He filed a second motion for a 18 temporary restraining order. (See TRO Mot. (Dkt. # 2).) He also filed another motion to 19 proceed in forma pauperis, and included in this motion a third request for a temporary 20 restraining order. (See IFP Mot. (Dkt. # 3).) Like his initial filing, both of these motions 21 are largely incomprehensible. (See generally TRO Mot. & IFP Mot.) 22 ORDER- 3 1 III. ANALYSIS 2 A. Motion to Proceed In Forma Pauperis 3 Mr. Brenden initiated this action on May 18, 2012, by filing a complaint and 4 paying the filing fee. (See Dkt. # 1.) The court, therefore, construes Mr. Brenden’s 5 motion to proceed in forma pauperis as including a request for a refund of his previously 6 paid fee. See, e.g., Corbella v. Friedman, No. CIV S-07-1020 RRB EFB PS, 2007 WL 7 2070333, at *1 (E.D. Cal. July 17, 2007). Mr. Brenden’s motion, however, fails to 8 inform the court whether he “is unable to pay . . . [the filing] fees or give security” for 9 them, and therefore fails to meet the requirement of 28 U.S.C. § 1915(a)(1). 1 10 Accordingly, the court denies Mr. Brenden’s motion to proceed in forma pauperis 11 without prejudice. Within 20 days of the date of this order, Mr. Brenden may file a 12 completed application to proceed in forma pauperis. The court directs the clerk to send 13 Mr. Brenden a copy of the court’s in forma pauperis application. 14 B. Motions for Temporary Restraining Order 15 Mr. Brenden has asked for a temporary restraining order three times in less than 16 two weeks. (See Dkt. ## 1, 2, 3.) The standards governing the issuance of temporary 17 restraining orders are “substantially identical” to those governing the issuance of 18 preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., 19 Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2011). Accordingly, Mr. Brenden must establish 20 1 Despite language in the statute which refers to “prisoners,” see 28 U.S.C. § 1915(a)(1), all persons may seek in forma pauperis status under the statute. Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 891 (9th Cir. 2011) (citing Andrews v. Cervantes, 493 F.3d 1047, 22 1052 n.1 (9th Cir. 2007)). 21 ORDER- 4 1 (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable 2 harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, 3 and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, 4 Inc., 555 U.S. 7, 20 (2008). In addition, a “preliminary injunction is appropriate when a 5 plaintiff demonstrates that serious questions going to the merits were raised and the 6 balance of hardships tips sharply in the plaintiff’s favor,” provided the plaintiff also 7 demonstrates irreparable harm and that the injunction is in the public interest. Alliance 8 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). 9 As noted above, Mr. Brenden’s complaint is nearly incomprehensible, and the 10 same is true of his motion for a temporary restraining order. (See generally TRO Mot.) 11 Accordingly, Mr. Brenden has failed to establish the requirements for injunctive relief, 12 including that he is likely to succeed on the merits, that he will suffer irreparable harm, or 13 that an injunction is in the public interest. Further, Mr. Brenden has failed to describe or 14 explain any efforts to give notice to Defendants of his motion for a temporary restraining 15 order or the reasons supporting a claim that notice should not be given. See Fed. R. Civ. 16 P. 65(b)(1)(B). For all of the foregoing reasons, the court denies Mr. Brenden’s motion 17 for a temporary restraining order. 18 C. Dismissal of Complaint 19 Pursuant to Federal Rule of Civil Procedure 8(a), a complaint shall include “(1) a 20 short and plain statement of the grounds for the court's jurisdiction . . . , (2) a short and 21 plain statement of the claim showing that the pleader is entitled to relief; and (3) a 22 demand for the relief sought . . . .” Fed. R. Civ. P. 8(a). “Each allegation must be simple, ORDER- 5 1 concise and direct.” Fed. R. Civ. P. 8(d)(1). A district court has the power to dismiss a 2 complaint when a plaintiff fails to comply with Federal Rule of Civil Procedure 8. See 3 McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. N. Coast Life Ins. Co., 4 651 F.2d 671, 673 (9th Cir. 1981). Further, “[a] trial court may dismiss a claim sua 5 sponte under [Federal] Rule [of Civil Procedure]12(b)(6).” Omar v. Sea-Land Serv., Inc., 6 813 F.2d 986, 991 (9th Cir. 1987). “Such dismissal may be made without notice where 7 the claimant cannot possibly win relief.” Id.; see also Sparling v. Hoffman Constr. Co., 8 864 F.2d 635, 638 (9th Cir. 1988) (trial court may sua sponte dismiss for failure to state a 9 claim without notice or an opportunity to respond where the plaintiff “cannot possibly 10 win relief”) (alteration, citation and internal quotations omitted); Shoop v. Deutsche Bank 11 Nat. Trust Co., No. 10-16440, 2012 WL 32137, at *1 (9th Cir. Jan. 6, 2012) 12 (unpublished) (holding that district court did not err in sua sponte dismissing pro se 13 complaint). 14 Although pro se complaints are to be construed liberally, see Haines v. Kerner, 15 404 U.S. 519, 520-21 (1972), the court may not supply essential elements that are not 16 pled. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Vague and conclusory 17 allegations are not sufficient to withstand dismissal. Id. As noted above, Mr. Brenden’s 18 complaint fails to even mention any defendant listed in his caption other than Defendant 19 Sellen Construction. (See generally Compl.) His allegations are generally 20 incomprehensible. (See id.) In addition, he has failed to aver any basis for the court’s 21 exercise of subject matter jurisdiction. (Id.) Finally, it also appears that at least some of 22 the issues raised by Mr. Brenden may have been previously disposed of in his prior suits ORDER- 6 1 against Defendant Sellen Construction described above. Accordingly, the court finds that 2 (1) Mr. Brenden’s complaint does not meet the minimal pleading requirements of the 3 federal rules, (2) it further fails to establish a basis for the court’s exercise of subject 4 matter jurisdiction, and (3) claim and issue preclusion may be applicable with respect to 5 at least some of his claims. 6 Based on the foregoing, the court dismisses Mr. Brenden’s complaint for failure to 7 state a claim under Federal Rules of Civil Procedure 8 and 12. Mr. Brenden may file an 8 amended complaint, curing the deficiencies noted above, or otherwise show cause why 9 his complaint should not be dismissed, within 20 days of the date of this order. 10 11 IV. CONCLUSION Based on the foregoing, the court DENIES Mr. Brenden’s motion for a temporary 12 restraining order (Dkt. # 2). In addition, the court DENIES Mr. Brenden’s motion for in 13 forma pauperis status, but without prejudice for reapplication within 20 days of the date 14 of this order (Dkt. # 3). The court further DIRECTS the clerk to mail a copy of the 15 court’s application for in forma pauperis status to Mr. Brenden along with a copy of this 16 order. Finally, the court DISMISSES Mr. Brenden’s complaint for failure to state a claim 17 or properly aver a basis for the court’s exercise of subject matter jurisdiction under 18 Federal Rules of Civil Procedure 8 and 12 (Dkt. # 1). The court’s dismissal, however, is 19 without prejudice to filing an amended complaint which cures the deficiencies described 20 above, or to otherwise showing cause why his complaint should not be dismissed, within 21 20 days of the date of this order. The court further advises Mr. Brenden that failure to 22 file an amended complaint curing the noted deficiencies or to otherwise show cause why ORDER- 7 1 his complaint should not be dismissed within the timeframe set forth by the court will 2 result in dismissal of his action with prejudice. 3 Dated this 30th day of May, 2012. 4 6 A 7 JAMES L. ROBART United States District Judge 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 8
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