Casterlow-Bey v. City of Tacoma et al

Filing 7

ORDER TO SHOW CAUSE OR AMEND, signed by Magistrate Judge David W. Christel. Show Cause Response or Amended Complaint due by 11/9/2017. (Attachments: # 1 Amended Complaint Form (blank))(CMG)(cc mailed to Plaintiff w/blank complaint form)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 GARY CASTERLOW-BEY, 11 12 13 Plaintiff, CASE NO. 3:17-cv-05676-BHS-DWC ORDER TO SHOW CAUSE OR AMEND COMPLAINT v. CITY OF TACOMA and CITY OF LAKEWOOD, 14 Defendant. 15 16 Plaintiff Gary Casterlow-Bey, proceeding pro se and in forma pauperis, filed this civil 17 rights complaint under 42 U.S.C. § 1983. He alleges two City Attorneys violated a variety of his 18 rights protected under the Constitution and other federal law when they discriminated against 19 him in his search for adequate housing. However, Plaintiff has named only municipalities as 20 Defendants and has not alleged that the unlawful deprivation of his rights was done pursuant to a 21 policy of those municipalities. Therefore, having reviewed and screened Plaintiff’s Complaint 22 under 28 U.S.C. § 1915A, the Court declines to serve the Amended Complaint but provides 23 24 ORDER TO SHOW CAUSE OR AMEND COMPLAINT - 1 1 Plaintiff leave to file an amended pleading by November 9, 2017, to cure the deficiencies 2 identified herein. 3 4 BACKGROUND Plaintiff is currently in the custody of the Pierce County Sheriff and is housed at the 5 Pierce County Jail. Dkt. 6. On August 28, 2017, Plaintiff filed a § 1983 action and an 6 Application to Proceed In Forma Pauperis. Dkt. 1, 6. In his complaint, he alleges that his rights 7 were violated under the Civil Rights Act of 1964, the American with Disabilities Act of 1990, as 8 well as the Fifth, Eighth, and Fourteenth Amendments. Dkt. 6 at 2. He states that the City 9 Attorneys for the Cities of Tacoma and Lakewood discriminated against him when they ignored 10 letters he sent asking for adequate housing. Id. at 3. As relief, he requests “a response to my 11 plea,” a “home for an elderly, disabled man,” and $3 million in compensatory, punitive, and 12 consequential damages. Id. at 4. On October 5, 2017, the Court granted Plaintiff’s Application to 13 Proceed In Forma Pauperis. Dkt. 5 14 15 DISCUSSION Under the Prison Litigation Reform Act of 1995, the Court is required to screen 16 complaints brought by prisoners seeking relief against a governmental entity or officer or 17 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the 18 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to 19 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant 20 who is immune from such relief.” Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 21 152 F.3d 1193 (9th Cir. 1998). 22 In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) he 23 suffered a violation of rights protected by the Constitution or created by federal statute, and (2) 24 ORDER TO SHOW CAUSE OR AMEND COMPLAINT - 2 1 the violation was proximately caused by a person acting under color of state law. See Crumpton 2 v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to 3 identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 4 (1994). To satisfy the second step, a plaintiff must allege facts showing how individually named 5 defendants caused, or personally participated in causing, the harm alleged in the complaint. See 6 Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). 7 Plaintiff’s Complaint suffers from deficiencies requiring dismissal if not corrected in an 8 Amended Complaint. 9 10 I. Municipal Liability Plaintiff names the City of Tacoma and the City of Lakewood as the only two Defendants 11 in his Complaint. To state a claim under 42 U.S.C. § 1983, Plaintiff must allege facts showing 12 how a defendant caused or personally participated in causing the harm alleged in the complaint. 13 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold, 637 F.2d at 1355. A person subjects 14 another to a deprivation of a constitutional right when committing an affirmative act, 15 participating in another’s affirmative act, or omitting to perform an act which is legally required. 16 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Further, municipalities may be the subject 17 of a § 1983 claim. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978). 18 However, a municipality may only be held liable if its policies are the “moving force [behind] 19 the constitutional violation.” City of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting 20 Monell, 436 U.S. at 694). To recover, Plaintiff must show that Defendants’ employees or agents 21 acted through an official custom or policy that permits violation of Plaintiff’s civil rights, or that 22 the entity ratified the unlawful conduct. See Monell, 436 U.S. at 690-91. 23 24 ORDER TO SHOW CAUSE OR AMEND COMPLAINT - 3 1 Here, Plaintiff has not alleged Defendants’ employees deprived him of his civil rights 2 through an official custom or policy. Plaintiff states his rights under the Civil Rights Act of 1964, 3 the American with Disabilities Act of 1990, as well as the Fifth, Eighth, and Fourteenth 4 Amendments were infringed. Dkt. 6 at 2. He appears to allege the City Attorneys for Lakewood 5 and Tacoma discriminated against him when they failed to respond to letters he sent requesting a 6 permanent home as a senior, disabled citizen. Id. at 3-4. Though he does allege personal 7 participation by the City Attorneys, he names only the Cities of Tacoma and Lakewood as 8 Defendants. However, he does not explain how the alleged unlawful actions were in compliance 9 with a custom or policy of either City, nor whether the Cities ratified the alleged unlawful 10 conduct. Because he does not name the City Attorneys as Defendants and has not explained how 11 the Cities’ policies were the moving force behind the alleged constitutional violations, he has not 12 stated a claim for which this Court can offer a remedy. See Monell, 436 U.S. at 690-91, 94. 13 Therefore, the Court orders Plaintiff to show cause why the Court should not recommend 14 dismissal of his action, or file an Amended Complaint correcting the deficiencies identified 15 above. 16 II. 17 If Plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file an Instructions to Plaintiff and the Clerk 18 amended complaint and within the amended complaint, he must write a short, plain statement 19 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the 20 persons or entities who violated the right; (3) exactly what the persons or entities did or failed to 21 do; (4) how the action or inaction of the individual is connected to the violation of Plaintiff’s 22 constitutional rights; and (5) what specific injury Plaintiff suffered because of the individual’s 23 conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). 24 ORDER TO SHOW CAUSE OR AMEND COMPLAINT - 4 1 Further, if Plaintiff intends to maintain a suit against a municipality, he must additionally explain 2 how the Cities’ policies were the driving force behind the actions that allegedly deprived him of 3 his Constitutional rights. See Monell, 436 U.S. at 694. 4 Plaintiff shall present the amended complaint on the form provided by the Court. The 5 amended complaint must be legibly rewritten or retyped in its entirety, it should be an original 6 and not a copy, it should contain the same case number, and it may not incorporate any part of 7 the original complaint by reference. The amended complaint will act as a complete substitute for 8 the original Complaint, and not as a supplement. The Court will screen the amended complaint to 9 determine whether it contains factual allegations linking each defendant to the alleged violations 10 of Plaintiff’s rights. The Court will not authorize service of the amended complaint on any 11 defendant who is not specifically linked to a violation of Plaintiff’s rights. 12 If Plaintiff fails to file an amended complaint or fails to adequately address the issues 13 raised herein on or before November 9, 2017, the undersigned will recommend dismissal of this 14 action for failure to state a claim on which relief can be granted pursuant to 28 U.S.C. § 1915. 15 16 Dated this 10th day of October, 2017. 17 18 19 20 A 21 David W. Christel United States Magistrate Judge 22 23 24 ORDER TO SHOW CAUSE OR AMEND COMPLAINT - 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?