Severson v. King County

Filing 9

ORDER DECLINING TO SERVE AMENDED COMPLAINT AND GRANTING LEAVE TO AMEND by Hon. James P. Donohue. (cc: plaintiff with Second Amended 1983 Prisoner Civil Rights Complaint form)(ST)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ALONZO J. SEVERSON,
Plaintiff,

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Case No. C17-816-JLR-JPD
ORDER DECLINING TO SERVE
AMENDED COMPLAINT AND
GRANTING LEAVE TO AMEND

v.
KING COUNTY, et al.,
Defendants.

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Plaintiff Alonzo Severson is currently a pretrial detainee confined at the King County

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Jail. Proceeding pro se and in forma pauperis, he filed a 42 U.S.C. § 1983 civil rights complaint

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against King County. See Dkt. 4-1. The Court declined to serve and granted leave to amend.

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Dkt. 7. Currently before the Court is plaintiff’s amended complaint, which names as defendants

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King County prosecutors David Ryan and Gabriel Jacob, Bellevue Police Detective Steve

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Sargent, Seattle Police Detective Todd Jacobsen, the Seattle Times, KOMO 4 News, and Q13

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Fox News. Dkt. 8. Having reviewed plaintiff’s amended complaint, the Court finds and

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ORDERS:

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(1)

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Plaintiff alleges that Mr. Ryan, Mr. Jacob, Detective Sargent, and Detective

Jacobsen held a press conference where they released inaccurate information to the media
ORDER DECLINING TO SERVE
AMENDED COMPLAINT AND
GRANTING LEAVE TO AMEND - 1

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regarding his participation in a burglary ring. Dkt. 8 at 3. He claims that he was never charged

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with the crimes that were mentioned at the press conference. Id. Plaintiff claims that he is the

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victim of slander and defamation of character, which have caused emotional distress. Id.

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Plaintiff further alleges that the Seattle Times, KOMO 4 News, and Q13 Fox News

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discriminated against him as an African American in their coverage of the case. Id. He claims

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that the evidence shown in the news belonged to a non-African American man, but the only faces

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portrayed in the media were faces of African Americans, including plaintiff. Id. Plaintiff seeks

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monetary damages. Id. at 4.

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(2)

Once a complaint is filed in forma pauperis, the Court must dismiss it prior to

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service if it “fails to state a claim on which relief can be granted.” 28 U.S.C. § 1915(e)(2)(b)(ii);

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see Talley v. Jackson, 2015 WL 3796339, at *1 (W.D. Wash. June 18, 2015) (citations omitted).

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To avoid dismissal, a complaint must contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The

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factual allegations must be “enough to raise a right to relief above the speculative level.” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint may be dismissed if it

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lacks a cognizable legal theory or states insufficient facts to support a cognizable legal theory.

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Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).

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The Court holds pro se plaintiffs to less stringent pleading standards than represented

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plaintiffs and liberally construes a pro se complaint in the light most favorable to the plaintiff.

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Erickson v. Pardus, 551 U.S. 89, 93 (2007). Nevertheless, § 1915(e) “not only permits but

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requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”

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Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000) (en banc). When dismissing a complaint

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under § 1915(e), the Court gives pro se plaintiffs leave to amend unless “it is absolutely clear
ORDER DECLINING TO SERVE
AMENDED COMPLAINT AND
GRANTING LEAVE TO AMEND - 2

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that the deficiencies of the complaint could not be cured by amendment.” Cato v. United States,

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70 F.3d 1103, 1106 (9th Cir. 1995).

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(3)

To sustain a § 1983 civil rights claim, plaintiff must show (1) he suffered a

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violation of rights protected by the Constitution or created by federal statute, and (2) the

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violation was proximately caused by a person acting under color of state or federal law. West v.

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Atkins, 487 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To

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satisfy the second prong, plaintiff must allege facts showing how individually named defendants

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caused or personally participated in causing the harm alleged in the complaint. Arnold v. IBM,

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637 F.2d 1350, 1355 (9th Cir. 1981).

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(4)

Having screened plaintiff’s amended complaint, the Court has identified the

following deficiencies:
a.

Plaintiff complains about the actions of the Seattle Times, KOMO 4

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News, and Q13 Fox News, alleging that they discriminated against him as an African American

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in their news coverage of the burglary ring. Members of the media are private individuals, and

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therefore, they generally do not act under color of law, as required for a § 1983 claim. A § 1983

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claim can lie against a private individual or entity, however, when the private party “is a willful

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participant in joint action with the State or its agents.” Kirtley v. Rainey, 326 F.3d 1088, 1092

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(9th Cir. 2003) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). The ultimate issue in

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determining whether a private party is subject to suit under § 1983 is whether the alleged

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infringement of federal rights is fairly attributable to the government. Id. The plaintiff bears the

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burden of establishing that the media defendants were state actors. Florer v. Congregation

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Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011).

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ORDER DECLINING TO SERVE
AMENDED COMPLAINT AND
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The Ninth Circuit recognizes four different tests used to identify state action: “(1) public

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function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental

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nexus.” Id. (citation omitted). “Satisfaction of any one test is sufficient to find state action, so

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long as no countervailing factor exists.” Kirtley, 326 F.3d at 1092.

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The public function test asks whether private individuals or groups are endowed by the

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State with powers or functions that are governmental in nature. Id. at 1093. Plaintiff makes no

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allegation that the media defendants were endowed with such powers or functions.

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Under the joint action test, courts “consider whether the state has so far insinuated itself
into a position of interdependence with the private entity that it must be recognized as a joint

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participant in the challenged activity. This occurs when the state knowingly accepts the benefits

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derived from unconstitutional behavior.” Id. (internal quotation and citation omitted). There is

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no allegation that the local government and media are interdependent or that the local

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government knowingly accepted any benefits derived from the allegedly unconstitutional media

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coverage.

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“The compulsion test considers whether the coercive influence or ‘significant

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encouragement’ of the state effectively converts a private action into a government action.” Id.

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at 1094. Plaintiff alleges that state actors held a press conference, but the Court finds this

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insufficient to constitute coercion or significant encouragement.

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“[T]he nexus test asks whether there is such a close nexus between the State and the

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challenged action that the seemingly private behavior may be fairly treated as that of the State

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itself.” Id. at 1094-95 (internal quotation marks and citation omitted). Generally, the

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governmental nexus test requires evidence that the private actor is “entwined with governmental

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policies, or . . . [the] government is entwined in [the private actor’s] management or control.”
ORDER DECLINING TO SERVE
AMENDED COMPLAINT AND
GRANTING LEAVE TO AMEND - 4

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Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).

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Plaintiff’s allegations are insufficient to satisfy the nexus test.

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Plaintiff fails to allege facts that would support the conclusion that the media defendants

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were state actors. Therefore, he cannot proceed with a § 1983 action against them. If plaintiff

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would like to proceed with this claim, he must allege fact establishing state action.

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b.

Plaintiff alleges that Mr. Ryan, Mr. Jacob, and Detectives Sargent and

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Jacobsen released false information about him to the media and that, as a result, he received

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threat of death and harm and has suffered extreme emotional distress. Plaintiff readily states a

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“classical claim for defamation actionable in the courts of virtually every State.” Paul v. Davis,

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424 U.S. 693, 697 (1976). But simple defamation by a state official does not rise to the level of a

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federal violation required to establish a claim under § 1983. Id. at 701. Reputation, standing

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alone, is not a liberty interest recognized by federal law. Id. at 700-02. A federally recognized

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liberty interest is implicated only when an individual’s reputation is stigmatized in connection

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with the denial of some specific constitutional guarantee or some “more tangible” interest, such

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as employment. Id. at 701; see also WMX Technologies, Inc. v. Miller, 80 F.3d 1315, 1319 (9th

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Cir. 1996) (announcing that Paul established a “stigma-plus test”); Gobel v. Maricopa, 867 F.2d

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1201, 1205 (9th Cir. 1989), abrogated on other grounds by City of Canton v. Harris, 489 U.S.

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378 (1989) (holding that the plaintiff sufficiently pleaded a “stigma-plus” defamation claim

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where complaint alleged false statements were made in connection with illegal arrest).

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Allegations of psychological trauma, humiliation, embarrassment, and emotional distress are

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insufficient to satisfy Paul’s “stigma-plus” test. Krainski v. Nev. ex. re. Bd. of Regents of Nev.

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Sys. of Higher Educ., 616 F.3d 963, 971 (9th Cir. 2010).

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ORDER DECLINING TO SERVE
AMENDED COMPLAINT AND
GRANTING LEAVE TO AMEND - 5

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Here, plaintiff does not allege that the defamatory statements were accompanied by the

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denial of a specific constitutional guarantee. He does allege that they caused him to receive

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threats and suffer emotional distress, but this is insufficient to state a “stigma plus” defamation

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claim. See id.; Kaylor v. Fields, 661 F.2d 1177, 1181 (8th Cir. 1981) (allegation that prosecutor

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made baseless accusation of criminal activity to the media without filing charges was not

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actionable under § 1983). Accordingly, plaintiff fails to state a federal defamation claim that can

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go forward in this action.
c.

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To the extent plaintiff’s slander and defamation claims are based on state

law, they cannot stand alone in a § 1983 action; they must be accompanied by a viable federal

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claim. Plaintiff has not alleged such a federal claim. He cannot proceed with any state law

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slander and defamation claims unless and until he presents a viable federal claim.

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(5)

Based on the forgoing, the Court DECLINES to serve plaintiff’s amended

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complaint, but GRANTS him leave to file a second amended complaint curing the above-noted

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deficiencies within 30 days after the date this Order is signed. The second amended complaint

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must carry the same case number as this one and must be filed on the appropriate form, a copy of

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which will be sent with this Order. If no second amended complaint is timely filed or if

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plaintiff files a second amended complaint that fails to correct the deficiencies identified

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above, the Court may recommend that this action be dismissed under 28 U.S.C. §

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1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.

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Plaintiff is advised that an amended pleading operates as a complete substitute for an

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original pleading. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, any

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second amended complaint must clearly identify the defendant(s), the constitutional or federal

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ORDER DECLINING TO SERVE
AMENDED COMPLAINT AND
GRANTING LEAVE TO AMEND - 6

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statutory claim(s) asserted, the specific facts that plaintiff believes support each claim, and the

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specific relief requested.

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(6)

The Clerk is directed to send plaintiff the appropriate forms so that he may file a

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second amended complaint. The Clerk also is directed to send copies of this order to plaintiff

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and to the Honorable James L. Robart.

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Dated this 11th day of September, 2017.

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A

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JAMES P. DONOHUE
Chief United States Magistrate Judge

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AMENDED COMPLAINT AND
GRANTING LEAVE TO AMEND - 7