Patu v. Alexander et al

Filing 6

ORDER TO SHOW CAUSE OR AMEND COMPLAINT signed by Judge Karen L Strombom. Show Cause Response due by 6/26/2015. (MET) cc: plaintiff w/complaint form and pro se sheet

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 RICKY PATU, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CASE NO. C15-5332 RJB-KLS Plaintiff, 10 ORDER TO SHOW CAUSE OR TO AMEND v. SGT. ALEXANDER, C/O LEE, C/O LINAREZ Defendants. Plaintiff Ricky Patu filed this civil rights complaint under 42 U.S.C. § 1983 pro se and in forma pauperis. Having reviewed and screened Plaintiff’s Complaint under 28 U.S.C. § 1915(e), the Court declines to serve Plaintiff’s Complaint but provides Plaintiff leave to file an amended pleading by June 26, 2015, to cure the deficiencies identified herein. DISCUSSION The Court will dismiss a complaint at any time if the action fails to state a claim, raises frivolous or malicious claims, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show that: (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. ORDER TO SHOW CAUSE OR TO AMEND- 1 1 1991). The first step in a § 1983 claim is therefore to identify the specific constitutional right 2 allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). To satisfy this second prong, 3 a plaintiff must allege facts showing how individually named defendants caused, or personally 4 participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637 F.2d 1350, 5 1355 (9th Cir. 1981). 6 Plaintiff, who is currently incarcerated at the Monroe Correctional Complex – SOU 7 (MCC-SOU), alleges that “sometime in 2009” while at the Pierce County Jail, he was denied a 8 shower and medical services after he felt sick and vomited and defecated over himself. He 9 claims that two unidentified officers laughed at him. He further alleges that on several 10 unidentified occasions, C/O Lee has taken him to segregation “for no reason upon arriving back 11 from Western State.” In addition to C/O Lee, Plaintiff purports to sue Sgt. Alexander, C/O 12 Linarez, and the Pierce County Jail “in their official capacity,” but the complaint is silent as to 13 the conduct of these parties. 14 Plaintiff’s complaint suffers from deficiencies that, if not corrected in an amended 15 complaint, require dismissal. 16 A. Claim Against Pierce County Jail 17 The Pierce County Jail is not a legal entity capable of being sued in a 42 U.S.C. § 1983 18 action. Section 1983 applies to the actions of “persons” acting under color of state law. The 19 language of § 1983 is expansive and does not expressly incorporate common law immunities. 20 Owen v. City of Independence, Mo., 445 U.S. 622, 637, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). 21 Municipalities are subject to suit under § 1983. Monell v. New York City Dept. of Social 22 Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, “[i]n order to 23 bring an appropriate action challenging the actions, policies or customs of a local governmental 24 unit, a plaintiff must name the county or city itself as a party to the action, and not the particular ORDER TO SHOW CAUSE OR TO AMEND- 2 1 municipal department or facility where the alleged violation occurred. See Nolan v. Snohomish 2 County, 59 Wash.App. 876, 883, 802 P.2d 792, 796 (1990).” Bradford v. City of Seattle, 557 3 F.Supp.2d 1189, 1207 (W.D.Wash.2008) (the Seattle Police Department is not a legal entity 4 capable of being sued under § 1983). 5 Assuming that Plaintiff amends his complaint to name a particular defendant or 6 defendants, he must also be able to allege facts sufficient to show that the particular defendant or 7 defendants caused or personally participated in causing the deprivation of a particular protected 8 constitutional right. 9 B. 10 Statute of Limitations The Civil Rights Act, 42 U.S.C. § 1983, contains no statute of limitations. As such, the 11 statute of limitations from the state cause of action most like a civil rights act is used. In 12 Washington, a plaintiff has three years to file an action. Rose v. Rinaldi, 654 F.2d 546 (9th 13 Cir.1981); RCW 4.16.080(2). 14 Federal law determines when a civil rights claim accrues. Tworivers v. Lewis, 174 F.3d 15 987, 991 (9th Cir.1999). A claim accrues when the plaintiff knows or has reason to know of the 16 injury which is the basis of the action. Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996); see 17 also Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001), quoting Tworivers, 174 F.3d at 992. The 18 proper focus is upon the time of the discriminatory acts, not upon the time at which the 19 consequences of the acts became most painful. Abramson v. Univ. of Hawaii, 594 F.2d 202, 209 20 (9th Cir.1979). Although the statute of limitations is an affirmative defense that normally may 21 not be raised by the court sua sponte, it may be grounds for sua sponte dismissal of an in forma 22 pauperis complaint where the defense is complete and obvious from the face of the pleadings or 23 the court's own records. See Franklin v. Murphy, 745 F.2d 1221, 1228–30 (9th Cir.1984). 24 ORDER TO SHOW CAUSE OR TO AMEND- 3 1 From the allegations stated in Plaintiff’s complaint, it appears that he had actual notice in 2 2009 of the facts relating to the claims he seeks to pursue in this action. Therefore, his claims 3 are not timely and he should show cause why they should not be dismissed. 4 If Plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file an 5 amended complaint and within the amended complaint, he must write a short, plain statement 6 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the 7 person who violated the right; (3) exactly what that individual did or failed to do; (4) how the 8 action or inaction of that person is connected to the violation of Plaintiff’s constitutional rights; 9 and (5) what specific injury Plaintiff suffered because of that person’s conduct. See Rizzo v. 10 Goode, 423 U.S. 362, 371–72, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). 11 Plaintiff shall present the amended complaint on the form provided by the Court. The 12 amended complaint must be legibly rewritten or retyped in its entirety, it should be an original 13 and not a copy, it should contain the same case number, and it may not incorporate any part of 14 the original complaint by reference. The Court will screen the amended complaint to determine 15 whether it contains factual allegations linking each defendant to the alleged violations of 16 Plaintiff’s rights. The Court will not authorize service of the amended complaint on any 17 defendant who is not specifically linked to the violation of Plaintiff’s rights. 18 If Plaintiff decides to file an amended civil rights complaint in this action, he is cautioned 19 that if the amended complaint is not timely filed or if he fails to adequately address the issues 20 raised herein on or before June 26, 2015, the Court will recommend dismissal of this action as 21 frivolous pursuant to 28 U.S.C. § 1915. 22 // 23 // 24 // ORDER TO SHOW CAUSE OR TO AMEND- 4 1 The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. 2 1983 civil rights complaint and for service. The Clerk is further directed to send copies of 3 this Order and Pro Se Instruction Sheet to Plaintiff. 4 DATED this 27th day of May, 2015. A 5 6 Karen L. Strombom United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER TO SHOW CAUSE OR TO AMEND- 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?