Casterlow-Bey v. Jarmon

Filing 8

ORDER TO SHOW CAUSE OR AMEND COMPLAINT on or before September 29, 2017, signed by Magistrate Judge Theresa L Fricke. (GMR- cc: pltf w/forms & pro se info sheet)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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GARY CASTERLOW-BEY,
Case No. C17-5647-BHS-TLF

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Plaintiff,
ORDER TO SHOW CAUSE OR
AMEND THE COMPLAINT

v.
ANDREA JARMON, DEPARTMENT OF
ASSIGNED COUNSEL,
Defendants.

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Plaintiff Gary Casterlow-Bey, proceeding pro se and in forma pauperis, filed a proposed
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civil rights complaint. The Court declines to serve the complaint because Mr. Casterlow-Bey has
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failed to state a claim for relief under 42 U.S.C. § 1983. However, the Court will give Mr.
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Casterlow-Bey an opportunity to show cause why his complaint should not be dismissed or to
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file an amended complaint to cure, if possible, the deficiencies noted herein.
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DISCUSSION
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Mr. Casterlow-Bey is suing his public defender, Andrea Jarmon, and the Department of
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Assigned Counsel (“DAC”) for alleged discrimination, slander, libel, and assault. First, the
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complaint Mr. Casterlow-Bey filed is deficient because the allegations flow from Ms. Jarmon’s
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representation of Mr. Casterlow-Bey as his public defender within the scope of her traditional
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function. Second, the complaint is deficient because the DAC is not a “person” and is therefore
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an improper defendant to be sued under § 1983.
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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 1

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Mr. Casterlow-Bey states that he is disabled. He asserts that due to his ex-felon status,

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Ms. Jarmon “refused to pursue medical documentation to establish before the court [his] medical

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condition.” Dkt. 1-1, p. 2. Ms. Jarmon allegedly stated to Mr. Casterlow-Bey that a jury would

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not believe him, and that he would never win a case in court because “a police officer’s

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credibility always trumps a liar, ex-convict in a wheelchair.” Id. Furthermore, Mr. Casterlow-

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Bey alleges that Ms. Jarmon made sexual advances on him. She allegedly wrote her phone

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number on a piece of paper and winked at him. Dkt. 1-1, p. 3. Mr. Casterlow-Bey fears that Ms.

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Jarmon will use her connections and associations within the Pierce County law enforcement

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community to force him to take a plea deal because he refuses her sexual advances. Id.

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Mr. Casterlow-Bey’s complaint fails to state a cognizable claim under § 1983. To state a

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claim under 42 U.S.C. § 1983, a complaint must allege: (i) the conduct complained of was

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committed by a person acting under color of state law and (ii) the conduct deprived a person of a

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right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v.

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Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S.

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327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of

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these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).

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Mr. Casterlow-Bey has not met the first prong. “[A] lawyer representing a client is not,

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by virtue of being an officer of the court, a state actor ‘under color of state law’ within the

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meaning of § 1983.” Polk County v. Dodson, 454 U.S. 312, 318 (1981). A state public defender

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performing traditional lawyer functions is not a state actor. Polk County, 454 U.S. at 324-25;

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Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2002). Here, Mr. Casterlow-Bey’s

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allegations relate to Ms. Jarmon’s traditional functions as a public defender. The acts alleged by

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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 2

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the plaintiff flow from Ms. Jarmon’s legal representation in Mr. Casterlow-Bey’s case, and

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therefore she is not a state actor and cannot be sued under § 1983.

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Additionally, Mr. Casterlow-Bey also names the DAC as a defendant, but this entity is

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not a proper defendant in this action. In order to obtain relief against a defendant under 42 U.S.C.

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§ 1983, a plaintiff must prove that the particular defendant has caused or personally participated

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in causing the deprivation of a particular protected constitutional right. Arnold v. IBM, 637 F.2d

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1350, 1355 (9th Cir. 1981); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977). The

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plaintiff must set forth specific facts showing a causal connection between each defendant’s

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actions and the harm allegedly suffered by plaintiff. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th

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Cir. 1980). In addition, defendants in a 42 U.S.C. § 1983 action cannot be held liable based on a

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theory of respondeat superior or vicarious liability. Polk County v. Dodson, 454 U.S. 312, 325

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(1981); Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir. 1986). “At a minimum, a

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§ 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved, or

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knowingly acquiesced in the unconstitutional conduct.” Bellamy v. Bradley, 729 F.2d 416, 421

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(6th Cir. 1984), cert. denied, 469 U.S. 845 (1984). Here, Mr. Casterlow-Bey names the DAC but

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fails to clearly state the alleged wrong-doing of the DAC.

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Furthermore, Mr. Casterlow-Bey fails to allege that he suffered any actionable harm in

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this case. He alleges only that he is “developing a conspiracy phobia as a result of this ordeal.”

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Dkt. 1-1, p. 3-4. He alleges no other facts or circumstances regarding any conduct that deprived

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him of a right, privilege, or immunity.

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Ms. Jarmon’s conduct relates to functions traditionally performed by a public defender,

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she is therefore not liable under § 1983. The DAC is not a proper defendant and Mr. Casterlow-

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Bey has not alleged personal participation by the DAC. Mr. Casterlow-Bey must show cause

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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 3

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why his claims against Ms. Jarmon and the DAC should not be dismissed for failure to state a

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claim.

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CONCLUSION
Due to the deficiencies described above, the Court will not serve the complaint. Plaintiff

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may show cause why his complaint should not be dismissed or may file an amended complaint to

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cure, if possible, the deficiencies noted herein, on or before September 29, 2017. If an amended

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complaint is filed, it must be legibly rewritten or retyped in its entirety and contain the same case

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number. Any cause of action alleged in the original complaint that is not alleged in the amended

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complaint is waived. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in

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part on other grounds, Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).
The Court will screen the amended complaint to determine whether it states a claim for

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relief cognizable under 42 U.S.C. § 1983. If the amended complaint is not timely filed or fails to

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adequately address the issues raised herein, the undersigned will recommend dismissal of this

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action as frivolous under 28 U.S.C. § 1915, and the dismissal will count as a “strike” under 28

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U.S.C. § 1915(g). Plaintiff should be aware that a prisoner who brings three or more civil actions

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or appeals that are dismissed on the grounds that they are legally frivolous, malicious, or fail to

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state a claim, will be precluded from bringing any other civil action or appeal in forma pauperis,

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“unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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The Clerk is directed to send plaintiff the appropriate forms for filing a 42 U.S.C. § 1983
civil rights complaint and for service, a copy of this Order and the Pro Se Information Sheet.
Dated this 1st day of September, 2017.

A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 4