Jones v. Tulalip Tribes Finance & Member & Employees et al

Filing 19

ORDER DIRECTING CLERK TO RESEND LEAVE TO AMEND by Hon. Brian A Tsuchida. (cc: plaintiff at WSH with Amended 1983 Prisoner Civil Rights Complaint form and copy of 5 ORDER granting Motion for Leave to Proceed In Forma Pauperis and 7 ORDER Declining Service and Granting Leave to Amend.) (ST)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 MELVIN L. JONES, a/k/a McCLELLAN (Tulalip Tribes Member T1753), 9 Plaintiff, 10 v. 11 TULALIP TRIBES FINANCE & MEMBERS & 12 EMPLOYEES, et al., ORDER DIRECTING CLERK TO RESEND LEAVE TO AMEND Defendants. 13 14 Case No. C17-1155 RSL-BAT Melvin L. Jones filed a complaint on August 8, 2017. Dkt. 6. The complaint was deficient 15 and the Court declined service and granted him leave to amend his complaint. Dkt. 7. The order 16 was mailed to Mr. Jones on August 8, 2017. On August 25, 2017, the Court was notified that Mr. 17 Jones did not receive the order. Dkt. 17. The Court accordingly ORDERS: 18 1. The Clerk shall provide Mr. Jones a copy of this order; 19 2. Mr. Jones is directed to submit an amended complaint curing the deficiencies 20 noted below no later than September 27, 2017. 21 Melvin L. Jones is presently being held at Western State Hospital. Dkt. 4. According to 22 Mr. Jones, he was transferred from the Snohomish County Jail after he was found incompetent to 23 stand trial. Id. In his pro se complaint he alleges that various individuals have slandered his ORDER DIRECTING CLERK TO RESEND LEAVE TO AMEND - 1 1 name by telling “everyone” that he is a snitch and confidential informant, and that they are 2 withholding his membership in the Tulalip Tribe and refuse to send him monthly per-capita 3 checks. Mr. Jones requests that all of the named defendants and organizations be restrained, that 4 he receive all his per-capita checks from the Tulalip Tribe, and that this Court place him in the 5 federal witness protection program. Dkt. 1-1, pp. 3-4. 6 Because the complaint contains deficiencies, the Court DECLINES to serve the 7 complaint but GRANTS Mr. Jones leave to file an amended complaint by September 27, 2017. 8 9 DISCUSSION The Court declines to serve the complaint because it contains fatal deficiencies that, if not 10 addressed, might lead to a recommendation of dismissal of the entire action for failure to state a 11 claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1). To state a 12 claim under 42 U.S.C. § 1983, a complaint must allege: (i) the conduct complained of was 13 committed by a person acting under color of state law and (ii) the conduct deprived a person of a 14 right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. 15 Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 16 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of 17 these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985). 18 Mr. Jones must clarify whether he has any basis for pursuing a claim under § 1983. In 19 his complaint, he names numerous individuals but fails to allege facts describing who these 20 individuals are, whether they were acting under color of state law, and how and when they 21 allegedly violated his constitutional rights. Mr. Jones alleges only that certain named defendants 22 (Echavarria, Santos, Schackel, Sallee, Tilleson, and Fryberg) have slandered his name and that 23 unnamed Tulalip Tribes Finance employees have denied Mr. Jones a Tulalip tribal membership ORDER DIRECTING CLERK TO RESEND LEAVE TO AMEND - 2 1 card and refuse to send him monthly per capita checks. Mr. Jones fails to plead facts as to the 2 remaining thirteen defendants and a number of the defendants are clearly private parties, i.e., 3 Global Tel Link, Wells Fargo, who cannot be sued under § 1983 because they are not state 4 actors. In addition, actions under section 1983 cannot be maintained in federal court for persons 5 alleging a deprivation of constitutional rights under color of tribal law. Evans v. McKay, 869 6 F.2d 1341, 1347 (9th Cir.1989); see also Bressi v. Ford, 575 F.3d 891, 895 (9th Cir.2009); R.J. 7 Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 982 (9th Cir.1983). The tribal 8 defendants can thus be held liable under § 1983 only if they were acting under color of state, not 9 tribal, law at the time of the alleged violation of Mr. Jones’s constitutional rights. 10 If Mr. Jones intends to pursue this action, he must file an amended complaint with short, 11 plain statements telling the Court: (1) the constitutional right he believes was violated; (2) name 12 of the person who violated the right; (3) exactly what that individual did or failed to do; (4) how 13 the action or inaction of that person is connected to the violation of Mr. Jones’ constitutional 14 rights; and (5) what specific injury he suffered because of that person’s conduct. See Rizzo v. 15 Goode, 423 U.S. 362, 371–72, 377 (1976). In addition, Mr. Jones must name a state actor as a 16 defendant or plead facts sufficient to show that the named defendants in this action were “acting 17 under color of state or federal law” as opposed to tribal law. 18 19 CONCLUSION The Court DECLINES to serve the complaint which as discussed above is deficient. The 20 Court realizes Mr. Jones is proceeding pro se. Thus rather than simply dismissing the action, the 21 Court grants him permission to file an amended complaint to cure the above-mentioned 22 deficiencies by September 27, 2017. The amended complaint must carry the same case number 23 as this one. If no amended complaint is timely filed, the Court will recommend that this ORDER DIRECTING CLERK TO RESEND LEAVE TO AMEND - 3 1 matter be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which 2 relief can be granted. 3 DATED this 28th day of August, 2017. 4 A 5 BRIAN A. TSUCHIDA United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER DIRECTING CLERK TO RESEND LEAVE TO AMEND - 4

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