Brown v. Morgan et al

Filing 17

ORDER granting Leave to file Amended Complaint or TO SHOW CAUSE why complaint should not be dismissed, signed by Magistrate Judge Theresa L Fricke. Third Amended Complaint or Show Cause Response due by 9/11/2017. **7 PAGE(S), PRINT ALL**(Gregory Brown, Prisoner ID: 281829)(CMG)

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7
8

GREGORY TYREE BROWN,
No. C16-5975 RBL-TLF
Plaintiff,

9
v.
10
11

RICHARD MORGAN, et al.,
Defendants.

12

ORDER GRANTING LEAVE TO
FILE AMENDED COMPLAINT TO
CURE DEFICIENCES OR TO SHOW
CAUSE WHY COMPLAINT SHOULD
NOT BE DISMISSED PURSUANT TO
FED. R. CIV. P. 8(a).

13
On December 13, 2016, the Court declined to serve pro se plaintiff Gregory Tyree
14
15

Brown’s civil rights complaint (Dkt. 4) because of several noted deficiencies. Dkt. 5. However,

16

the Court granted Brown leave to file an amended complaint, and an extension of time within

17

which to do so, to cure the deficiencies or show cause why his complaint should not be

18

dismissed. Dkt. 7. Brown filed an 84-page amended complaint, naming 58 defendants and

19
20

“John/Jane Does I through CI”, on February 13, 2017. Dkt. 8. Because Brown’s first amended
complaint was also deficient and many of the claims he asserted appeared to be untimely, the

21
22
23
24

Court provided Brown with a second opportunity to cure the noted defects. Dkt. 10. The Court
specifically directed Brown to limit his second amended complaint to 20 pages. Id., p. 12.
On May 2, 2017, Brown filed a second amended complaint. Dkt. 14. This version is 54

25

pages long and names 76 defendants. Many allegations contained in the complaint concern acts

26

and omissions that apparently occurred outside of the applicable three-year statute of limitations.
ORDER - 1

1

Brown has not shown that each of the allegedly operative decisions, acts, or omissions that

2

constitute “discrete acts” occurred during within the three-year statute of limitations. See RK

3

Ventures Inc., v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir. 2002) (discrete acts, even when

4

they are “related and similar to” more recent acts, are not actionable if the discrete acts occurred

5
outside the statute of limitations period).
6
7

Brown is directed to file a third amended complaint containing a short, plain statement of

8

the allegations concerning only those claims potentially within the statute of limitations and

9

naming only those defendants who participated in or caused a violation of his constitutional

10

rights within the statute of limitations. The Court also admonishes Brown that his third amended

11

complaint shall not be as lengthy, and he must make every effort to describe the factual

12

allegations in plain and clear language, as required by Fed. R. Civ. P. 8(a). If he fails to do so,

13
the complaint may be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(a),(b)(1), because it
14
15

fails to comply with Fed. R. Civ. P. 8(a) and because it fails to state a claim upon which relief

16

may be granted. This dismissal may count as a strike under 28 U.S.C. § 1915(g). Brown must file

17

his third amended complaint by September 11, 2017.

18
19
20

PLAINTIFF’S ALLEGATIONS
Brown purports to sue 76 employees of the Department of Corrections (“DOC”) for
conduct allegedly occurring from 1984 to the present in at least four correctional institutions

21
22
23

(Clallam Bay Corrections Center, Washington State Penitentiary, Washington State
Reformatory, and Airway Heights Corrections Center). In paragraphs 44-107 and 165-172,

24

Brown claims he was denied access to courts, was retaliated against, had false grievances filed

25

against him, had his magazines and mail confiscated, and was wrongfully transferred. All of

26

these events occurred between 1984 and 2013 and according to Brown inflicted “constant and
ORDER - 2

1

prolonged fear.” Id., ¶ 107. In paragraphs 165-172, Brown asserts that between July 1983 and

2

December 2017, over 700,000 grievances were filed by all prisoners but no staff misconduct was

3

ever found and this resulted in a “culture of fear and terror for prisoners.” Id., ¶ 172.

4

The allegations set forth in paragraphs 112-164 appear to be timely and may state

5
sufficient facts to constitute a claim under 42 U.S.C. § 1983. For example, Brown alleges that his
6
7

legal mail was wrongfully confiscated in March 2014; he was denied access to the courts in May

8

2014; he was wrongfully infracted for refusing to participate in an approved education program

9

in August 2014; his religious items were wrongfully confiscated in November 2015; his library

10

access was denied in January 2016; the law library was deficient in September 2015; and he

11

received retaliatory demerits in March 2014. Dkt. 14, ¶¶ 112-164.

12

DISCUSSION

13
The Court is required to screen complaints brought by prisoners seeking relief against a
14
15

governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a).

16

The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails

17

to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant

18

who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

19
20

A court may dismiss a complaint as frivolous, and that dismissal may count as a strike
under 28 U.S.C. § 1915(g), even when the prisoner paid the filing fee as Brown did. Belanus v.

21
22
23

Clark, 796 F.3d 1021, 1028 (9th Cir. 2015).
Brown sued under § 1983. To state a claim under § 1983, a plaintiff must allege facts

24

showing (1) the conduct about which he complains was committed by a person acting under the

25

color of state law; and (2) the conduct deprived him of a federal constitutional or statutory right.

26

Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must allege that he suffered a
ORDER - 3

1

specific injury as a result of the conduct of a particular defendant, and he must allege an

2

affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S.

3

362, 371-72, 377 (1976). Sweeping, conclusory allegations against an official are insufficient to

4

state a claim for relief. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Further, a § 1983 suit

5
cannot be based on vicarious liability alone, but must allege the defendant’s own conduct
6
7
8

violated the plaintiff’s civil rights. City of Canton v. Harris, 489 U.S. 378, 385-90 (1989).
Additionally, Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires a complaint

9

to include a short and plain statement of the claim showing that the pleader is entitled to relief, in

10

order to give the defendant fair notice of what the claim is and the grounds upon which it rests.”

11

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007) (citing Conley v. Gibson, 355 U.S. 41

12

(1957)). The complaint must include more than “naked assertions,” “labels and conclusions” or

13
“a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557.
14
15

The Civil Rights Act, 42 U.S.C. § 1983, contains no statute of limitations. As such, the

16

statute of limitations from the state cause of action most like a civil rights act is used. In

17

Washington, a plaintiff has three years to file an action. Rose v. Rinaldi, 654 F.2d 546 (9th Cir.

18

1981); RCW 4.16.080(2). Federal law determines when a civil rights claim accrues. Tworivers v.

19
20

Lewis, 174 F.3d 987, 991 (9th Cir. 1999). A claim accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the action. Kimes v. Stone, 84 F.3d 1121, 1128

21
22
23

(9th Cir. 1996); see also Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (quoting Tworivers,
174 F.3d at 992). The proper focus is upon the time of the discriminatory acts, not upon the time

24

at which the consequences of the acts became most painful. Abramson v. Univ. of Hawaii, 594

25

F.2d 202, 209 (9th Cir. 1979).

26
ORDER - 4

1

Brown filed this action on November 21, 2016. Therefore, claims which accrued

2

before November 21, 2013 are time-barred. It is clear from the face of Brown’s amended

3

complaint that he knew or had reason to know of the alleged injuries which form the basis of the

4

claims identified in ¶¶ 44-107 occurred well before November 21, 2013, when the statute of

5
limitations for pursuing any Section 1983 action as to these claims expired.
6
7

Brown does not dispute that his allegations of conduct occurring before November 21,

8

2013 are time-barred. Dkt. 13. Rather, relying on an employment discrimination case, National

9

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), he argues that these allegations can

10

be taken as “evidence” that he has been subjected to a “hostile environment” for over thirty

11

years. He also argues that the alleged acts constitute a hostile environment that persisted until at

12

least April 2016, so that, under Morgan, “the entire time period of the hostile environment may

13
be considered.” Morgan, 536 U.S. at 103.
14
15

Brown reads Morgan, an employment discrimination case under Title VII, too broadly.

16

The Supreme Court held that a plaintiff could recover for acts predating the statutory period

17

where those acts were part of a hostile work environment, so long as the hostile environment

18

included an act that occurred within the statutory period. Id. at 116-17. The Court did not allow

19
20

the plaintiff to recover for discrete acts of discrimination that occurred outside the statutory
period. Id. at 114. This Court is aware of no case finding that numerous discrete acts by

21
22
23
24

numerous defendants, all unrelated to sexual harassment, can constitute a “hostile environment”
that violates the Eighth Amendment.
Some courts, including district courts in the Ninth Circuit, have applied the similar

25

“continuing violation” doctrine to claims that prison officers were deliberately indifferent to

26

serious medical needs in violation of the Eighth Amendment. See Heard v. Sheahan, 253 F.3d
ORDER - 5

1

316, 318 (7th Cir. 2001); Gipbsin v. Kernan, No. 2:12-cv-0556-GEB DAD P, 2015 WL

2

3993073, at *3 (E.D. Cal. June 30, 2015) (unpublished) (collecting cases). Under that rule, “a

3

plaintiff can reach back to [an alleged violation’s] beginning[,] even if that beginning lies outside

4

the statutory limitations period, when it would be unreasonable to require or even permit him to

5
sue separately over every incident of the defendant's unlawful conduct.” Heard, 253 F.3d at 319.
6
7

Here, however, Brown alleges that numerous defendants committed discrete acts, including

8

confiscating his legal materials, retaliating against him for pursuing a civil rights complaint, and

9

fabricating infractions against him, over the course of three decades. Even assuming that the

10

continuing violation doctrine would extend to Eighth Amendment claims that do not involve

11

deliberate indifference to serious medical needs, the acts Brown alleges cannot plausibly support

12

an inference that they are part of a “continuous series of events.” See id. at 318 (explaining

13
continuing violation doctrine).
14
CONCLUSION

15

Therefore, the Court is allowing Brown one more opportunity to file by September 11,

16
17

2017 a third amended complaint that is not as lengthy and describes the factual allegations in

18

plain and clear language, as required by Fed. R. Civ. P. 8(a). The third amended complaint

19
20

should include only those claims that occurred within the statute of limitations (i.e. after
November 21, 2013) and only allegations concerning those defendants who allegedly

21
22

participated in or caused a violation of Brown’s constitutional rights. 1 The “short and plain

23
24
25
26

1

Mr. Brown is not proceeding in forma pauperis in this case. See Receipt No. TAC014338. Therefore, and
assuming he is able to file a viable third amended complaint, he will be responsible for serving copies of the
summons and third amended complaint on all the defendants within 120 days after the third amended complaint is
approved for filing by the court. See Fed. R. Civ. P. 4.
.

ORDER - 6

1

statement” requirement of Fed. R. Civ. P. 8(a) applies to cases under 42 U.S.C. § 1983.

2

Swierkiewicz v Sorema N.A., 524 U.S. 506, 512 (2002). A violation of Fed. R. Civ. P. 8(a) occurs

3

when a plaintiff files a complaint that includes confusing language and too much information.

4

Cafasso, U.S. ex. Rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011)

5
(“[W]e have never held—and we know of no authority supporting the proposition—that a
6
7
8
9

pleading may be of unlimited length and opacity. Our cases instruct otherwise.” (citing cases)).
Brown must demonstrate in his third amended complaint how the conditions he
complains of deprived him of his federal rights. The complaint must allege in specific terms how

10

each named defendant is personally involved, either directly or indirectly causing a deprivation

11

of the federal rights that Brown alleges to have been breached. There can be no liability or

12

equitable relief under 42 U.S.C. § 1983 if the plaintiff cannot establish an affirmative link or

13
connection between acts or omissions of each specific defendant, and the claimed deprivation of
14
15
16

federal rights. Rizzo v. Goode, supra, 423 U.S. at 371-72, 377; Johnson v. Duffy, 588 F.2d 740,
743 (9th Cir. 1978).

17
18

DATED this 11th day of August, 2017.

A

19
20

Theresa L. Fricke
United States Magistrate Judge

21
22
23
24
25
26
ORDER - 7