Bolton v. Washington Department of Corrections et al

Filing 6

ORDER to Amend or SHOW CAUSE why this case should not be dismissed. Amended Complaint or Show Cause Response due by 9/21/2012. Signed by Magistrate Judge Karen L Strombom. (CMG; cc to Plaintiff)

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1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 3 4 5 SCOTT CARROLL BOLTON, 6 7 8 9 10 11 12 Plaintiff, No. C12-5677 RJB/KLS v. ORDER TO AMEND OR SHOW CAUSE WASHINGTON DEPARTMENT OF CORRECTIONS, WASHINGTON STATE, WASHINGTON CORRECTION CENTER, Defendants. This matter has been referred to Magistrate Judge Karen L. Strombom pursuant to 28 U.S.C. § 636(b)(1), Local Rules MJR 3 and 4. Plaintiff has been granted leave to proceed in 13 forma pauperis. Presently before the Court for review is Plaintiff’s proposed civil rights 14 15 complaint. ECF No. 5. The Court will not direct service of Plaintiff’s complaint at this time 16 because it is deficient, as is explained in further detail below. Plaintiff will be given an 17 opportunity to amend his complaint. 18 19 20 DISCUSSION Under the Prison Litigation Reform Act of 1995, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or 21 22 employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint 23 or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that 24 fail to state a claim upon which relief may be granted, or that seek monetary relief from a 25 defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b)(1), (2) and 1915(e)(2); See 26 Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998). ORDER TO AMEND OR SHOW CAUSE- 1 1 A complaint is legally frivolous when it lacks an arguable basis in law or fact. Neitzke v. 2 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 3 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. A complaint or portion thereof, will be dismissed for failure to state a claim 6 7 upon which relief may be granted if it appears the “[f]actual allegations . . . [fail to] raise a right 8 to relief above the speculative level, on the assumption that all the allegations in the complaint 9 are true.” See Bell Atlantic, Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted). 10 In other words, failure to present enough facts to state a claim for relief that is plausible on the 11 face of the complaint will subject that complaint to dismissal. Id. at 1974. 12 Although complaints are to be liberally construed in a plaintiff’s favor, conclusory 13 allegations of the law, unsupported conclusions, and unwarranted inferences need not be 14 15 accepted as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Neither can the court supply 16 essential facts that an inmate has failed to plead. Pena, 976 F.2d at 471 (quoting Ivey v. Board of 17 Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). Unless it is absolutely clear that 18 amendment would be futile, however, a pro se litigant must be given the opportunity to amend 19 his complaint to correct any deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 20 Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, “the complaint [must 21 22 provide] ‘the defendant fair notice of what the plaintiff’s claim is and the ground upon which it 23 rests.’” Kimes v. Stone 84 F.3d 1121, 1129 (9th Cir. 1996) (citations omitted). In addition, in 24 order to obtain relief against a defendant under 42 U.S.C. § 1983, a plaintiff must prove that the 25 particular defendant has caused or personally participated in causing the deprivation of a 26 particular protected constitutional right. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). ORDER TO AMEND OR SHOW CAUSE- 2 1 To be liable for “causing” the deprivation of a constitutional right, the particular defendant must 2 commit an affirmative act, or omit to perform an act, that he or she is legally required to do, and 3 which causes the plaintiff’s deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 A. Prisoner Grievance 5 Plaintiff states that there is a grievance procedure available at the Washington 6 7 8 9 10 11 12 Corrections Center, that he has filed a grievance regarding his claims, but that the grievance procedure is not completed. ECF No. 5, at 2. The Prison Litigation Reform Act of 1995 (PLRA) mandates that: No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. § 1983), 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. 13 42 U.S.C. § 1997e [emphasis added]. 14 15 “There is no question that exhaustion is mandatory under the PLRA and that 16 unexhausted claims cannot be brought to court.” Jones v. Bock, 549 U.S. 199, 127 S. Ct. 17 910, 918-19 (2007). Inmates must exhaust their prison grievance remedies before filing 18 suit if the prison grievance system is capable of providing any relief or taking any action in 19 response to the grievance. “Congress has mandated exhaustion clearly enough, regardless of the 20 relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001). 21 22 The “PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they 23 involve general circumstances or particular episodes, and whether they allege excessive force or 24 some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). 25 The underlying premise is that requiring exhaustion “reduce[s] the quantity and improve[s] the 26 quality of prisoner suits, [and] affords corrections officials an opportunity to address complaints ORDER TO AMEND OR SHOW CAUSE- 3 1 internally. . . . In some instances, corrective action taken in response to an inmate’s grievance 2 might improve prison administration and satisfy the inmate, thereby obviating the need for 3 litigation.” Id. at 525. 4 Plaintiff does not allege that he has exhausted his state court remedies prior to filing his 5 claims in this action. 6 7 8 9 10 11 12 B. Parties Plaintiff names the State of Washington, Washington Department of Corrections and Washington Corrections Center as Defendants. If Plaintiff believes that he has a claim under 42 U.S.C. § 1983 and wishes to amend his complaint, he must allege that the conduct he complains of was committed by a person acting under color of state law. Section 1983 authorizes assertion of a claim for relief against a 13 “person” who acted under color of state law. A suable §1983 “person” encompasses state and 14 15 local officials sued in their personal capacities, municipal entities, and municipal officials sued in 16 an official capacity. Will v. Michigan Department of State Police, 491 U.S. 58 (1989). Plaintiff 17 must set forth facts describing when, where and how individually named defendants deprived 18 him of a federal constitutional right. Entities such as the Department of Corrections, Olympic 19 Corrections Center, and Washington State Corrections Center are not “persons” for purposes of a 20 section 1983 civil rights action. Also, the State of Washington is not a proper party because it is 21 22 well-established that the Eleventh Amendment affords non-consenting states constitutional 23 immunity from suit in both federal and state courts. See, e.g., Alden v. Maine, 527 U.S. 706, 748 24 (1999); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989); Warnock v. Pecos 25 County, 88 F.3d 341, 343 (5th Cir. 1996). 26 ORDER TO AMEND OR SHOW CAUSE- 4 Accordingly, Plaintiff may not sue Washington State in this Court. Similarly, a suit 1 2 against a state official in his or her official capacity is not a suit against the official but rather is a 3 suit against the official’s office and thus the state. Will v. Mich. Dep’t of State, 491 U.S. at 71. 4 C. Statement of Claims 5 1) Seizure of Inmate Account Funds 6 7 Plaintiff claims that on June 13 through June 24, 2012, monies were “illegally and 8 unlawfully” taken from his inmate account without his consent. ECF No. 5, at 4. As a result of 9 such seizure of funds, Plaintiff claims that he could not obtain items from the commissary, order 10 public disclosure items, participate in recreational activities, and send legal mail. Id. He also 11 states that he is “assuming [that such conduct] is in retaliation of such cases of complaints and 12 grievances due to this complaint.” Id. Plaintiff is advised as follows. 13 The Fourteenth Amendment prevents a state from depriving a person of life, liberty, or 14 15 property without due process of law. U.S. Const. amend. XIV. A prisoner has a protected 16 property interest in the funds in his inmate trust account. Quick v. Jones, 754 F.2d 1521, 1523 17 (9th Cir.1985). Upon determining a property interest exists, the Court determines the process 18 due. Id. Application of the due process analysis requires “a recognition that not all situations 19 calling for procedural safeguards call for the same kind of procedure.” Morrissey v. Brewer, 408 20 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). 21 22 As a general rule, where a prisoner alleges the deprivation of a liberty or property interest 23 caused by the unauthorized negligent or intentional action of a prison official, the prisoner 24 cannot state a constitutional claim where the state provides an adequate post-deprivation remedy. 25 See Zinermon v. Burch, 494 U.S. 113, 129–32, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Parratt 26 v. Taylor, 451 U.S. 527, 538, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other ORDER TO AMEND OR SHOW CAUSE- 5 1 grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (negligent 2 loss of property or injury to property by state official does not violate due process so long as the 3 state provides a meaningful post-deprivation remedy for the loss or injury); Hudson v. Palmer, 4 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (unauthorized intentional deprivation of 5 property by a state employee does not constitute a violation of due process if a meaningful 6 7 8 9 postdeprivation remedy for the loss is available). Under Washington law, all funds that are sent, brought, or earned by an inmate, shall be deposited in a personal account and the secretary shall have authority to disburse money from 10 such person's personal account for the purposes of satisfying a court-ordered legal financial 11 obligation to the court. RCW 72.11.020. Pursuant to RCW 72.09.480, when an inmate receives 12 any funds in addition to his wages or gratuities, the funds are subject to various deductions, 13 including crime victims' compensation account, inmate savings account, legal financial 14 15 16 17 obligations owing in any Washington state superior court, child support, and cost of incarceration. Id., 72.09.480(2). Also under Washington law, Plaintiff may file a tort claim and a civil action against the 18 State of Washington for the unlawful loss or destruction of his personal property. RCW 19 72.02.045 (state and/or state officials liable for the negligent or intentional loss of inmate 20 property); RCW 4.92.090.-.100 (state liable for the tortious conduct of state officials and 21 22 employees); See also Jeffries v. Reed, 631 F.Supp. 1212, 1216 (E.D.Wa.1986) (State of 23 Washington provides a meaningful remedy for the loss of an inmate’s property by state 24 officials). In addition, a prison grievance procedure can constitute an adequate post-deprivation 25 remedy. See Al-Ra'id v. Ingle, 69 F.3d 28, 32 (5th Cir.1995); see also Wright v. Riveland, 219 26 F.3d 905 (9th Cir.2000) (prisoners in Washington have adequate post-deprivation remedies to ORDER TO AMEND OR SHOW CAUSE- 6 1 challenge deductions from inmate accounts by utilizing the prison grievance procedure or by 2 filing a state tort action). 3 4 Because prisoners in Washington have adequate post-deprivation remedies to challenge deductions from inmate accounts by utilizing the prison grievance procedure or by filing a state 5 tort action, it is unlikely that Plaintiff can prevail on a claim for violation of his due process 6 7 rights. Plaintiff must show cause why this claim should not be dismissed. 8 2) Retaliation 9 To the extent Plaintiff is attempting to claim that funds were withdrawn from his account 10 in retaliation, he is advised that his complaint is deficient because he has failed to provide facts 11 sufficient from which it can be inferred that anyone retaliated against him. 12 Within the prison context, a viable claim of First Amendment retaliation entails five basic 13 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 14 15 because of (3) that prisoner’s protected conduct, and that action (4) chilled the inmate’s exercise 16 of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 17 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). The Ninth Circuit 18 has consistently held that prison staff may not retaliate against inmates for exercising their 19 constitutional rights to file lawsuits and grievances. Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 20 1983); Barnett v. Centoni, 31 F.3d 813 (9th cir. 1994); Pratt v. Rowland, 65 F.3d 802 (9th Cir. 21 22 1995); Rhodes, 408 F.3d 559 (9th Cir. 2005). A retaliation claim may assert an injury no more 23 tangible than a chilling effect on First Amendment rights.... Thus, the mere threat of harm can be 24 an adverse action, regardless of whether it is carried out because the threat itself can have a 25 chilling effect.” See Brodheim v. Cry, 584 F.3d 1262, 1269–70 (9th Cir. 2009) 26 ORDER TO AMEND OR SHOW CAUSE- 7 Plaintiff must state name the persons who retaliated against him. He must also describe 1 2 what retaliation occurred, when it occurred, and explain why the retaliatory conduct occurred. 3 3) 4 Revocation of DOSA Sentence Plaintiff contends that his DOSA sentence was revoked based on perjured testimony. 5 ECF No. 5, at 6. Such allegations, if established, would necessarily imply the invalidity of the 6 7 revocation of his DOSA sentence. See Edwards v. Balisok, 520 U.S. 641, 658, 117 S.Ct. 1584, 8 137 L.Ed.2d 906 (1997). If Plaintiff seeks to attack the revocation of his DOSA sentence, he 9 must proceed in habeas corpus, and not under § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 10 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Plaintiff must show cause why this claim should 11 not be dismissed. 12 D. Statement of Relief 13 Plaintiff asks that “all defendants listed be reprimanded and penalized according to the 14 15 law of U.S.C.A. and Washington State Constitution”. ECF No. 5, p. 4. It is entirely unclear 16 from this statement what relief Plaintiff is seeking from this Court. Rule 8(a) of the Federal 17 Rules of Civil Procedure requires that a pleader include within his complaint “a demand for the 18 relief sought, which may include relief in the alternative or different types of relief.” 19 Fed.R.Civ.P. 8(a). Plaintiff must state what relief he seeks, monetary or otherwise. 20 Due to the deficiencies described above, the Court will not serve the complaint. Plaintiff 21 22 may file an amended complaint curing, if possible, the above noted deficiencies, or show cause 23 explaining why this matter should not be dismissed no later than September 21, 2012. If 24 Plaintiff chooses to amend his complaint, he must demonstrate how the conditions complained of 25 have resulted in a deprivation of his constitutional rights. The complaint must allege in specific 26 terms how each named defendant is involved. The amended complaint must set forth all of ORDER TO AMEND OR SHOW CAUSE- 8 1 Plaintiff’s factual claims, causes of action, and claims for relief. Plaintiff shall set forth his 2 factual allegations in separately numbered paragraphs and shall allege with specificity the 3 following: 4 (1) the names of the persons who caused or personally participated in causing the 5 alleged deprivation of his constitutional rights; 6 (2) the dates on which the conduct of each Defendant allegedly took place; and 8 (3) the specific conduct or action Plaintiff alleges is unconstitutional. 9 An amended complaint operates as a complete substitute for (rather than a mere 7 10 supplement to) the present complaint. In other words, an amended complaint supersedes the 11 original in its entirety, making the original as if it never existed. Therefore, reference to a prior 12 pleading or another document is unacceptable – once Plaintiff files an amended complaint, the 13 original pleading or pleadings will no longer serve any function in this case. See Loux v. Rhay, 14 15 375 F.2d 55, 57 (9th Cir. 1967) (as a general rule, an amended complaint supersedes the prior 16 complaint). Therefore, in an amended complaint, as in an original complaint, each claim and the 17 involvement of each defendant must be sufficiently alleged. 18 19 20 Plaintiff shall present his complaint on the form provided by the Court. The amended complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it may not incorporate any part of the original complaint by reference, and it must be 21 22 clearly labeled the “Amended Complaint” and must contain the same cause number as this case. 23 Plaintiff should complete all sections of the court’s form. Plaintiff may attach continuation 24 pages as needed but may not attach a separate document that purports to be his amended 25 complaint. Plaintiff is advised that he should make a short and plain statement of claims 26 against the defendants. He may do so by listing his complaints in separately numbered ORDER TO AMEND OR SHOW CAUSE- 9 1 paragraphs. He should include facts explaining how each defendant was involved in the 2 denial of his rights. 3 4 The Court will screen the amended complaint to determine whether it contains factual allegations linking each defendant to the alleged violations of Plaintiff's rights. The Court will 5 not authorize service of the amended complaint on any Defendant who is not specifically linked 6 7 8 9 to the violation of Plaintiff's rights. If Plaintiff decides to file an amended civil rights complaint in this action, he is cautioned that if the amended complaint is not timely filed or if he fails to adequately address the issues 10 raised herein on or before September 21, 2012, the Court will recommend dismissal of this 11 action as frivolous pursuant to 28 U.S.C. § 1915 and the dismissal will count as a “strike” under 12 28 U.S.C. § 1915(g). Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who 13 brings three or more civil actions or appeals which are dismissed on grounds they are legally 14 15 frivolous, malicious, or fail to state a claim, will be precluded from bringing any other civil 16 action or appeal in forma pauperis “unless the prisoner is under imminent danger of serious 17 physical injury.” 28 U.S.C. § 1915(g). 18 19 20 The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. 1983 civil rights complaint and for service. The Clerk is further directed to send a copy of this Order and a copy of the General Order to Plaintiff. 21 22 DATED this 29th day of August, 2012. A 23 Karen L. Strombom United States Magistrate Judge 24 25 26 ORDER TO AMEND OR SHOW CAUSE- 10

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