Murphy v. Washington State Department of Corrections

Filing 4

ORDER directing Plaintiff to either file an amended complaint that cures the defects noted or inform the court if he decides to voluntarily dismiss the is action. A response is due on or before by 4/29/11. Signed by Magistrate Judge J Richard Creatura. (CMG; cc to Plaintiff )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 of the record contained herein, does hereby find and ORDER the following: 17 18 19 20 21 22 23 24 25 26 v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels Plaintiff complains of an alleged slip and fall in the bathroom at the Larch Corrections Center. He does not name a person as a defendant -- only a state agency. The complaint has several defects. In order to state a claim under 42 U.S.C. § 1983, a complaint must allege: (l) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the The Court, having reviewed plaintiff's proposed complaint (ECF No. 1), and the balance v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Defendant. HAROLD JOHN MURPHY Jr. CASE NO. C11-5174BHS/JRC Plaintiff, ORDER DIRECTING PLAINTIFF TO CURE DEFICIENT COMPLAINT UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). Mere negligence, does not state a claim for a violation of a constitutional right. The Eighth Amendment prohibits infliction of cruel and unusual punishment. The Eighth Amendment is violated if an inmate is deprived of the minimal civilized measure of life's necessities. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Young v. Quinlan, 960 F.2d 351, 359 (3rd Cir. 1992). To establish an Eighth Amendment violation, an inmate must allege both an objective element--that the deprivation was sufficiently serious--and a subjective element--that a prison official acted with deliberate indifference. Young, 960 F.2d at 359-60. To constitute deliberate indifference, an official must know of and disregard an excessive risk to an inmate's health or safety. The official must be aware of facts from which the inference could be drawn

13 14 15 16 17 18 19 20 law, it does not state a claim under the federal civil rights act. 21 22 23 24 25 26 Further, plaintiff names only the State Department of Corrections as a defendant. States and there subdivisions are not persons for purpose of the civil rights act. Neither states nor state officials acting in their official capacities are "persons" for purposes of 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment prohibits a state being sued in federal court for damages. See Seminole Tribe of Florida v. Florida 517 U.S. that a substantial risk of serious harm exists; and the official must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff does not name any particular staff person as having been aware of the situation that led to his injury. Nor does he allege any person drew the inference that the situation placed him or anyone else at excessive risk of injury. Finally, there is no allegation that any prison official acted with deliberate indifference. While the complaint may state a claim under state tort

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44, 72 (1996) overruled in part by Cent. Va. Cmty. College v. Katz, 546 U.S. 356, 363 (2006); Natural Resources Defense Council v. California Dep't of Transportation, 96 F.3d 420, 421 (9th Cir. 1996). These defects could be cured, or plaintiff may decide he is in the wrong forum. Plaintiff should be given the opportunity to either amend the complaint or dismiss the action prior to the court granting in forma pauperis status as under the Prison Litigation Reform Act once in forma pauperis status is granted the full $350 filing fee will be collected. Plaintiff is directed to either file an amended complaint that cures the defects noted above or inform the court if he decides to voluntarily dismiss this action. A response is due on or before April 29, 2011 The Clerk is directed to send a copy of this order to plaintiff, and note the April 29, 2011

13 14 15 16 17 18 19 20 21 22 23 24 25 26 due date on the court calendar. DATED this 16th day of March, 2011.

A
J. Richard Creatura United States Magistrate Judge

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