Spencer v. Department of Corrections et al

Filing 5

ORDER that Plaintiff SHOW CAUSE why this action should not be dismissed for failure to state a claim with the dismissal counting as a strike pursuant to 28 U.S.C. § 1915(e) and (g). Plaintiff will have until 1/22/2013 to file a response. Signed by Magistrate Judge J Richard Creatura. (CMG; cc to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BLACKWELL SPENCER,

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Plaintiff,

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ORDER TO SHOW CAUSE

v.
DEPARTMENT OF CORRECTIONS,
Defendant.

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CASE NO. C12-6026 RJB-JRC

This 42 U.S.C. §1983 civil rights matter has been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate Judges Rules MJR 1,
MJR 3, and MJR 4.
Plaintiff has been granted in forma pauperis status. Plaintiff alleges he was denied the
ability to attend a family member’s funeral and that defendants were negligent in handling his
request. He brings his action pursuant to 42 U.S.C. § 1983. A prisoner has no constitutional right
to attend a family member’s funeral. Sorenson v. Minnesota Dept. of Corrections, 2012 WL
3150722 (D. Minn. 2012).

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ORDER TO SHOW CAUSE - 1

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To state a claim pursuant to 42 U.S.C. § 1983, certain elements must be met: (1) the

2 defendant must be a person acting under the color of state law; and (2) the person’s conduct must
3 have deprived the plaintiff of rights, privileges or immunities secured by the constitution or laws
4 of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908 (1981) (overruled in
5 part on other grounds); Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662 (1986).
6 Implicit in the second element, is a third element of causation. See Mt. Healthy City School Dist.
7 Bd. of Educ. v. Doyle, 429 U.S. 274, 286-87, 97 S. Ct. 568 (1977); Flores v. Pierce, 617 F.2d
8 1386, 1390-91 (9th Cir. 1980), cert. denied, 449 U.S. 875, 101 S. Ct. 218 (1980). When a
9 plaintiff fails to allege or establish one of the three elements, his complaint must be dismissed.
10 That plaintiff may have suffered harm, even if due to another’s negligent conduct does not in
11 itself necessarily demonstrate an abridgment of constitutional protections. Davidson v. Cannon,
12 474 U.S. 344, 106 S. Ct. 668 (1986).
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The Court orders plaintiff to show cause why this action should not be dismissed for

14 failure to state a claim with the dismissal counting as a strike pursuant to 28 U.S.C. §1915(e) and
15 (g). Plaintiff will have until January 22, 2013 to file a response.
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Dated this 10th day of December, 2012.

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A
J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE - 2