WA – Clark v Rasmussen – USDC EDWA 2009

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
JIMMY CLARK, Plaintiff, vs. TIMOTHY RASMUSSEN, et al., Defendants.

NO. CV-09-375-JLQ
December 22, 2009, Filed

SUBSEQUENT HISTORY: Reconsideration denied by Clark v. Rasmussen, 2010 U.S. Dist. LEXIS 9360 (E.D. Wash., Feb. 3, 2010)

JUDGES: JUSTIN L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE.

OPINION BY: JUSTIN L. QUACKENBUSH

OPINION

ORDER TO DISMISS

BEFORE THE COURT is Mr. Clark’s Complaint (Ct. Rec. 4) alleging that there are no valid judges in the State of Washington by virtue of their alleged failure to timely take and file the oath of office, a failure to act which necessarily vacates judgeships under Washington law. See RCW 42.12.010(6). Mr. Clark’s Complaint arises from two Stevens County Superior Court civil actions in which he has sought to compel the Stevens County prosecutor to investigate and prosecute alleged crimes committed by others.

The principle of abstention applies. This principle was first articulated in a criminal context by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and later extended to civil proceedings by Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982). “So long as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should [*2] abstain.” Middlesex, 457 U.S. at 435. Mr. Clark’s claim has not been exhausted within the state courts of Washington, and this federal court will not serve as an appellate court thereof. Accordingly,

IT IS HEREBY ORDERED:

1. The Complaint (Ct. Rec. 4) is hereby DISMISSED without prejudice pursuant to Fed. R. Civ. P. 12(b)(6), and may not be re-filed until and if Mr. Clark’s state remedies, including resolution by the Washington Supreme Court, have been fully exhausted.

2. Mr. Clark is cautioned that, while the court is not reaching the merits of the instant action, frivolous filings not grounded in law and fact may lead to sanctions or the entry of a vexatious litigant Order.

The Clerk is hereby directed to enter this Order, enter judgment dismissing the Complaint and the claims therein without prejudice, close the case file, and furnish copies to Mr. Clark.
DATED this 22nd day of December, 2009.
/s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE