1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MICHAEL D. MILAM,

Plaintiff,

v.

PIERCE COUNTY et al.,

Defendants.

Case No. C05-5842FDB

ORDER TO FILE A SECOND

AMENDED COMPLAINT AND

STRIKING ALL PENDING

MOTIONS

This Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. § 636(b)(1)(B). Plaintiff has applied for and received in forma pauperis status. 

(Dkt. # 7). 

This action was first filed in late December of 2005. In January of 2006 plaintiff was granted

in forma pauperis status. (Dkt. # 7). The original complaint is not a model of clarity and it

appeared to the court plaintiff was attacking an ongoing criminal prosecution. Plaintiff complained of

a warrant allegedly issued by the Pierce County Prosecutors Office. (Dkt. # 8). 

The court entered an order to show cause. (Dkt. # 11). In response plaintiff has filed an

amended complaint. (Dkt. # 13). In the amended complaint plaintiff indicates he was offered some

kind of settlement by Pierce County and again mentions a “warrant” but plaintiff is not providing

Case 3:05-cv-05842-FDB Document 14 Filed 03/17/06 Page 1 of 2
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 2

enough detail for the court to determine if he has stated a claim and the complaint should be served

or if he is challenging an on going criminal prosecution.

A court should not dismiss a claim unless it appears beyond doubt that the plaintiff can prove

no set of facts to support the claim that would entitle the plaintiff to relief. Keniston v. Roberts, 717

F.2d 1295, 1300 (9th Cir. 1983), citing; Conley v. Gibson, 355 U.S. 41, 45-56 (1957). Dismissal for

failure to state a claim may be based on either the lack of a cognizable legal theory or the absence of

sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901

F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is

construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). However, a

plaintiff must plead factual allegations with specificity; vague and conclusory allegations fail to state

a claim for relief. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988).

The lack of detail in the complaints precludes a determination as to whether plaintiff may

proceed. Plaintiff is ordered to file a “Second Amended Complaint”. Plaintiff will inform the court

who issued the “warrant” what the warrant was for, and what happened regarding the warrant. It

could be plaintiff is referring to a detainer. Plaintiff will have until April 28th, 2006 to file the second

amended complaint.

Plaintiff has filed a “motion for summary judgment” and a “motion for sanction”. (Dkt. # 5

and 12). Neither motions will be considered by the court at this point in the litigation. Plaintiff will

need to file an acceptable complaint before proceeding further. 

The clerk is directed to send a copy of this order to plaintiff remove docket numbers 5 and 12

from the court’s calendar, and to note the April 28th, 2006 due date on the court’s calendar. 

 

DATED this 16th day of March, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

Case 3:05-cv-05842-FDB Document 14 Filed 03/17/06 Page 2 of 2