Conev v. Snohomish County Jail et al

Filing 7

ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND signed by Judge Brian A Tsuchida. The Court declines to serve the Complaint but grants plaintiff permission to submit an amended complaint or show cause why the complaint should not be dismissed. Amended complaint due by 1/31/2018. The amended complaint must carry the same case number as this one. (PM) cc: plaintiff via first class mail

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 ANDREW CONEV, Plaintiff, Case No. C17-1907 RSM-BAT 8 v. 9 SNOHOMISH COUNTY JAIL, et al., ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND 10 Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 On December 19, 2017, Andrew Conev, a Snohomish County Jail detainee filed letter in case number C17-1725 RSM. See Dkt. 9 (C17-1725 RSM). Because the letter asserted Mr. Conev was raising “a new claim” it was assigned the case number herein. The letter alleges on December 7, 2017, Snohomish County Jail released Mr. Conev temporarily for a psychiatric evaluation. Mr. Conev indicates he was prescribed “a couple different meds,” and that the jail is not dispensing them as prescribed. He claims he and his lawyer “are taking this to court next week.” He also alleges he feels the medical staff is retaliating against him for making complaints about his medications. The Court declines to serve the complaint because it fails to state a claim upon which relief may be granted, and is subject to dismissal. It also appears Mr. Conev has not exhausted his administrative remedies. Additionally, this Court may be required to abstain from addressing the claim because as Mr. Conev alleges, he and his lawyer are taking the matter to Court. ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 1 1 However, because Mr. Conev is proceeding pro se, the Court grants him leave to file by 2 January 31, 2018, an amended complaint, or to show cause why the complaint should not be 3 dismissed. 4 DISCUSSION 5 To sustain a civil rights action under § 1983, Mr. Convev must show (1) he suffered a 6 violation of rights protected by the Constitution or created by federal statute, and (2) the 7 violation was proximately caused by a person acting under color of state or federal law. See 8 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 9 A. 10 Liability of Parties Mr. Conev has not named the specific defendants against which he brings his claims. If 11 he seeks to sue Snohomish County, he must show the county itself violated his rights or that it 12 directed its employees to do so. Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 13 397, 404 (1994). Under this theory of liability, the focus is on the county’s “policy statement, 14 ordinance, regulation, or decision officially adopted and promulgated by that body’s Officers.” 15 City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690). The 16 county is not liable for the acts of its employees under a respondeat superior theory of liability. 17 See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). Therefore, in order to sue 18 Snohomish County, Mr. Conev must allege facts showing that any constitutional deprivation he 19 suffered was the result of a custom or policy of the county. 20 Is he seeks to sue a county employee who is a supervisor, Mr. Conev must allege facts 21 showing that the individual defendant supervisor participated in or directed the alleged violation, 22 or knew of the violation and failed to act to prevent it. See Barren v. Harrington, 152 F.3d 1193, 23 1194 (9th Cir.1998), cert. denied, 525 U.S. 1154 (1999); Ashcroft v. Iqbal, 556 U.S. 662, 129 ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 2 1 S.Ct. 1937, 1948 (2009) (vicarious liability is inapplicable to a § 1983 suit). 2 And finally, if Mr. Conev seeks to sue an individual employee of the jail, Mr. Conev 3 must prove that a particular defendant has caused or personally participated in causing the 4 deprivation of a particular protected constitutional right. Arnold v. IBM, 637 F.2d 1350, 1355 5 (9th Cir. 1981); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977). Mr. Conev must set 6 forth specific facts showing a causal connection between each defendant’s actions and the harm 7 allegedly suffered by plaintiff. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 8 The complaint does not meet these standards. Instead it alleged a denial of adequate 9 medical care. This is not sufficient to state an Eighth Amendment violation. Mr. Conev may file 10 an amended complaint to provide additional facts to support this claim, including the nature of 11 his injuries and which individual or individuals knew of his injuries and failed to provide 12 treatment. 13 B. Exhaustion 14 Mr. Conev should also note the The Prison Litigation Reform Act (“PLRA”) provides 15 that: 16 17 No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 18 42 U.S.C. § 1997e(a). The exhaustion requirement normally applies to any suit, brought under 19 any federal statute, regarding conditions of imprisonment, including “all prisoners seeking 20 redress for prison circumstances and occurrences . . . whether they involve general circumstances 21 or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. 22 Nussle, 534 U.S. 516, 532 (2002); Woodford v. Ngo, 548 U.S. 81, 85 (2006) (same). Mr. Conev 23 should therefore in this amended complaint set forth whether he has exhausted the administrative ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 3 1 remedies available to him or not. 2 C. Pending State Matter 3 Mr. Conev also states that he and his lawyer are taking this matter to court. The Court 4 interprets this to mean that the allegations Mr. Conev raises are related to his pending state 5 criminal case. Normally, federal courts must abstain from interfering with pending state criminal 6 proceedings. See Younger v. Harris, 401 U.S. 37 (1971). Younger abstention is appropriate 7 where: (1) there are ongoing state judicial proceedings, (2) the proceedings implicate important 8 state interests, and (3) there is an adequate opportunity in the state proceedings to resolve federal 9 questions. Dubinka v. Judges of the Superior Ct., 23 F.3d 218, 223 (9th Cir. 1994). In his 10 amended complaint Mr. Conev should set forth whether his claims here are being addressed as 11 part of his criminal matter, in which case this Court should abstain from interfering, or whether 12 his claims are not being addressed by the state court and may properly be brought before this 13 court. 14 15 CONCLUSION The Court DECLINES to serve the amended complaint which as discussed above is 16 deficient. However, the Court grants plaintiff permission to submit an amended complaint to 17 attempt to cure the above-mentioned deficiencies by January 31, 2018. The amended complaint 18 must carry the same case number as this one. 19 Mr. Conev should note that the amended complaint replaces the original complaint and that 20 the Court will review the case solely based upon the allegations set forth in the amended 21 complaint. If no amended complaint is timely filed, or if an amended complaint is filed that 22 is still deficient, the Court will recommend that this matter be dismissed under 28 U.S.C. § 23 ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 4 1 1915(e)(2)(B)(ii) for failure to state a claim on which relief can be granted. 2 The Clerk is directed to provide a copy to Mr. Conev. 3 DATED this 9th day of January 2018. 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 DECLINING SERVICE AND GRANTING LEAVE TO AMEND - 5

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