Humphries v. Ward et al

Filing 7

ORDER DECLINING TO SERVE COMPLAINT AND GRANTING LEAVE TO AMEND by Hon. Mary Alice Theiler. (cc: plaintiff w/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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RICHARD G. HUMPHRIES,
Plaintiff,

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CASE NO. C17-1397-RAJ-MAT

v.
ORDER DECLINING TO SERVE
COMPLAINT AND GRANTING
LEAVE TO AMEND

JACOB M. WARD, et al.,
Defendants.

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Plaintiff Richard Humphries has submitted to the Court for filing a civil rights complaint

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under 42 U.S.C. § 1983. The Court, having reviewed plaintiff’s complaint, hereby finds and

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ORDERS as follows:

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(1)

Plaintiff’s complaint relates to a residential DOSA (Drug Offender Sentencing

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Alternative) sentence which was imposed by King County Superior Court Judge Brian Gain on

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December 2, 2011. (See Dkt. 4-1.) On March 14, 2012, shortly after plaintiff was released from

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the residential chemical dependency treatment portion of his sentence, Washington Department of

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Corrections (DOC) Community Corrections Officer (CCO) Jacob Ward sent a notice of violation

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to Judge Gain alleging that plaintiff had committed two violations of the conditions of his

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community custody. (See Dkt. 4-5.) King County Superior Court Judge Greg Canova conducted
ORDER DECLINING TO SERVE COMPLAINT
AND GRANTING LEAVE TO AMEND - 1

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a hearing on the alleged violations on April 6, 2012, and thereafter issued an order revoking

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plaintiff’s DOSA sentence, pursuant to RCW 9.94A.660(7)(c), upon finding that plaintiff had

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violated the conditions of his sentence by making third-party contact, or attempted contact, with a

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protected person. (Dkt. 4-4 at 3.)

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Plaintiff was sentenced to serve 13 months of total confinement following the revocation,

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with credit for time previously served under the same cause number and for days spent in inpatient

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treatment. (See id. at 4.) It appears that plaintiff served approximately 144 days in custody before

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being released to serve a 12 month term of community custody. (See Dkt. 4-1 at 3; Dkt. 4-4 at 4.)

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Plaintiff contends that the superior court erred in revoking his DOSA sentence under RCW

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9.94A.660 because the judge who revoked the sentence was not the judge who had originally

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imposed the sentence. (See Dkt. 4-1 at 4, 12.) Plaintiff also appears to contend that because he

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was on community custody under DOC supervision at the time of the alleged violations, the DOC,

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and not the superior court, should have been the entity to address any violation of the terms of

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plaintiff’s community custody. (See id. at 12.) Though not entirely clear, plaintiff appears to

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identify CCO Jacob Ward and the DOC as defendants in this action. Plaintiff seeks declaratory

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and injunctive relief, and damages.

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(2)

Rule 8(a) of the Federal Rules of Civil Procedure provides that in order for a

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pleading to state a claim for relief it must contain a short and plain statement of the grounds for

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the court’s jurisdiction, a short and plain statement of the claim showing that the pleader is entitled

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to relief, and a demand for the relief sought. The statement of the claim must be sufficient to “give

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the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

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Conley v. Gibson, 355 U.S. 41, 47 (1957). The factual allegations of a complaint must be “enough

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to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
ORDER DECLINING TO SERVE COMPLAINT
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544, 555 (2007). In addition, a complaint must allege facts to state a claim for relief that is

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plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show (1) that he

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

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

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See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy the second prong, a

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plaintiff must allege facts showing how individually named defendants caused, or personally

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participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637 F.2d 1350,

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1355 (9th Cir. 1981).

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(3)

The Court declines to order that plaintiff’s complaint be served because his

complaint is deficient in the following respects:
(a)

It appears likely that plaintiff’s claims are barred by the statute of limitations. For

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claims brought under 42 U.S.C. § 1983, federal courts apply the forum state’s statute of limitations

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governing personal injury actions. See Wilson v. Garcia, 471 U.S. 261 (1985). Thus, the

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applicable limitations period for plaintiff’s claims is three years. RCW 4.16.080(2). Although

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state law provides the applicable limitations period, federal law determines when the cause of

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action accrues. See Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1998) (citing Elliott v. City of

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Union City, 25 F.3d 800, 802 (9th Cir. 1994)). Under federal law, a claim accrues when the

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plaintiff knows, or should have known, of the injury which is the basis of the cause of action. Fink,

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192 F.3d at 914.

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According to the complaint, and the materials submitted in support thereof, the conduct

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which forms the basis of plaintiff’s claims occurred between March 14, 2012, the date CCO Ward

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submitted the notice of violation to the superior court, and April 6, 2012, the date plaintiff’s DOSA
ORDER DECLINING TO SERVE COMPLAINT
AND GRANTING LEAVE TO AMEND - 3

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sentence was revoked. Plaintiff did not submit his civil rights complaint to this Court for filing

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until September 15, 2017, over two years after the statute of limitations appears to have expired.

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Plaintiff, obviously anticipating this statute of limitations problem, asserts in his complaint

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that his claims are not subject to the statute of limitations because the judge who revoked plaintiff’s

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DOSA sentence (Judge Canova), the prosecuting attorney who represented the state at the

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revocation hearing (Bradley Bowen), the public defender who represented plaintiff at the

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revocation hearing (Brian Todd), and CCO Ward, committed a fraud upon the court by improperly

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participating in the adjudication of the alleged DOSA sentence/community custody violations.

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However, plaintiff offers no evidence that any of these individuals engaged in fraudulent activity,

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nor any evidence that the alleged fraudulent activity prevented him from timely filing this civil

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rights action. In fact, it appears from the record before this Court that all information necessary

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for plaintiff to pursue a claim that his community custody violations were adjudicated by the wrong

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entity were available to him at the time of the adjudication in April 2012. It thus appears clear that

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plaintiff’s claims are barred by the statute of limitations.

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(b)

Even assuming plaintiff could demonstrate that his claims are not barred by the

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statute of limitations, he has not adequately alleged any viable cause of action against the named

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defendants. Plaintiff alleges that defendants violated his rights under the Equal Protection Clause

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when they manipulated the law to have the alleged DOSA violations brought before Judge Canova,

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rather than before Judge Gain or a DOC hearing officer.

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The Equal Protection Clause of the Fourteenth Amendment provides that no state shall

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“deny to any person within its jurisdiction the equal protection of the laws.” In order to state an

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equal protection claim, a plaintiff must show that defendants acted with an intent or purpose to

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discriminate against the plaintiff based upon his membership in a protected class. Barren v.
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AND GRANTING LEAVE TO AMEND - 4

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Harrington, 152 F.3d 1193, 1994 (9th Cir. 1998) (citations omitted). Plaintiff alleges no facts

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demonstrating that defendants knowingly or intentionally discriminated against him, or that any

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adverse action was based upon his membership in a protected class. Thus, plaintiff has not

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adequately alleged any equal protection violation in his complaint.

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(c)

Plaintiff also alleges that defendants violated his due process rights. So far as this

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Court can discern, plaintiff’s due process claim relates to the alleged failure of defendants to

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comply with DOC administrative procedures and/or state statutes relating to the revocation of

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DOSA sentences. However, violations of the state administrative code and/or state statue are not

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cognizable under § 1983, and simply asserting that such violations amount to a federal due process

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violation, without more, is not sufficient to turn a state law claim into a federal constitutional claim.

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Plaintiff has alleged no facts suggesting that he suffered any violation of his due process rights.

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(4)

Plaintiff may file an amended complaint curing the above noted deficiencies within

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thirty (30) days of the date on which this Order is signed. The amended complaint must carry the

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same case number as this one. If no amended complaint is timely filed, the Court will recommend

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that this action be dismissed.

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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.) (citing Hal Roach

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Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (as amended),

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cert. denied, 506 U.S. 915 (1992). Thus, any amended complaint must clearly identify the

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defendant(s), the constitutional claim(s) asserted, the specific facts which plaintiff believes support

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each claim, and the specific relief requested.

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(5)

Plaintiff submitted with his complaint a declaration in support of a temporary

restraining order (Dkt. 4-11), and a proposed order to show cause for a preliminary injunction and
ORDER DECLINING TO SERVE COMPLAINT
AND GRANTING LEAVE TO AMEND - 5

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a temporary restraining order (Dkt. 4-12). Plaintiff did not, however, submit an actual motion for

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a temporary restraining order with his other materials. Absent an actual motion, there is no proper

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request for relief before the Court. And, in any event, the Court would not consider such a motion

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at this juncture as plaintiff has yet to submit a viable complaint.

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(6)

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

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amended complaint. The Clerk is further directed to send copies of this Order to plaintiff and to

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the Honorable Richard A. Jones.

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DATED this 17th day of October, 2017.

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A

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Mary Alice Theiler
United States Magistrate Judge

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