Curry v. Naphcare et al

Filing 7

ORDER TO SHOW CAUSE or AMEND, signed by Magistrate Judge J Richard Creatura. Plaintiff's Show Cause Response or Amended Complaint due by 10/27/2017. (Attachments: # 1 Amended Complaint (blank), # 2 Address List (blank), # 3 Pro Se Instruction Sheet)(CMG)(cc mailed to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DAVID HENRY CURRY,
Plaintiff,

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CASE NO. 3:17-cv-05716-BHS-JRC
ORDER TO SHOW CAUSE OR
AMEND

v.
NAPHCARE, et al.,
Defendants.

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Plaintiff David Henry Curry, proceeding pro se and in forma pauperis, filed this civil

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rights complaint under 42 U.S.C. § 1983. Plaintiff alleges that he has been deprived of

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medications necessary to treat his chronic pain and risk of stroke since being incarcerated with

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the Washington Department of Corrections. However, he has not alleged personal participation

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by any of the named defendants. Having reviewed and screened plaintiff’s complaint under 28

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U.S.C. § 1915A, the Court declines to serve plaintiff’s complaint because plaintiff has yet to

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plead sufficient facts to demonstrate that defendants were deliberately indifferent to his medical

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ORDER TO SHOW CAUSE OR AMEND - 1

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needs. However, the Court provides plaintiff leave to file an amended pleading by October 27,

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2017, to cure the deficiencies identified herein.

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BACKGROUND

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Plaintiff has been incarcerated at the Pierce County Jail since January of 2017. Dkt. 6 at

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7. Upon entering jail, he had a number of prescriptions, ranging from pain killers to medication

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to treat his cholesterol and risk of stroke. Id. He states that the medication is for chronic pain

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stemming from a car accident, multiple surgeries from complications associated with the car

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accident, and several other unrelated medical conditions. Id. at 7-8. This claim arises out of

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alleged withholding of several of those medications, as well as enforced living conditions that

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aggravate his medical conditions. Id. at 8-12.

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DISCUSSION

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I.

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Plaintiff alleges that various medical providers and prison officials provided him with

Personal Participation by Defendants

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inadequate medical care or denied his grievances seeking adequate medical care. Dkt. 6.

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However, plaintiff does not explain any personal actions by the named defendant. These

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allegations are insufficient to state a claim under § 1983.

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To state a claim under 42 U.S.C. § 1983, plaintiff must allege facts showing how a

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defendant caused or personally participated in causing the harm alleged in the complaint. Leer v.

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Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold, 637 F.2d at 1355. A person subjects another

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to a deprivation of a constitutional right when committing an affirmative act, participating in

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another’s affirmative act, or failing to perform an act which is legally required. Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978). Sweeping conclusory allegations against an official are

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insufficient to state a claim for relief. Leer, 844 F.2d at 633. Further, a § 1983 suit cannot be

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ORDER TO SHOW CAUSE OR AMEND - 2

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based on vicarious liability alone, but must allege the defendant’s own conduct violated the

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plaintiff’s civil rights. City of Canton v. Harris, 489 U.S. 378, 385-90 (1989).

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Here, plaintiff has not shown personal participation by defendants. After plaintiff’s

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prayer for relief, plaintiff has included a list of the events during which he alleges his

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constitutional rights were violate. Dkt. 6 at 7-12. He lists the medications he requires, the dates

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he felt symptoms of his various medical issues, the dates medical staff allegedly withheld

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medication from him or ignored his complaints, and the living conditions aggravating his

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medical circumstance. Id. However, none of his allegations explain how defendants Naphcare,

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Chief Jackson, or Miguel Balderrama personally participated in these alleged deprivations. Leer,

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844 F.2d at 633. Defendant Jonathon Slothower is mentioned once (Dkt. 6 at 10), but plaintiff

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does not clearly explain how defendant Slothower’s actions harmed plaintiff. Without

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demonstrating personal participation, plaintiff cannot state a claim for which this Court can grant

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relief. Insofar as plaintiff is arguing that defendants had supervisory authority over the staff that

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caused his alleged harm, supervisory liability alone is insufficient to state a claim. Harris, 489

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U.S. at 385-90. Again, plaintiff must explain how defendants personally participated in the

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alleged constitutional deprivation in order to effectively state a claim for which relief can be

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granted.

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If plaintiff wishes to pursue this § 1983 action, he must provide an amended complaint

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with a short, plain statement explaining exactly what the named defendants did or failed to do

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and how the actions violated plaintiff’s constitutional rights and caused him harm. Plaintiff may

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also provide an amended complaint including additional defendants, similarly including a short,

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plain statement explaining what those additional defendants did or failed to do and how their

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actions violated plaintiff’s constitution rights.

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ORDER TO SHOW CAUSE OR AMEND - 3

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II.

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Due to the deficiencies described above, the Court will not serve plaintiff’s complaint. If

Instructions to Plaintiff and the Clerk

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plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file an amended

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complaint and within the amended complaint, he must write a short, plain statement telling the

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Court: (1) the constitutional right plaintiff believes was violated; (2) the name or names of the

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person or persons who violated the right; (3) exactly what each individual or entity did or failed

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to do; (4) how the action or inaction of each individual or entity is connected to the violation of

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plaintiff’s constitutional rights; and (5) what specific injury plaintiff suffered because of the

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individuals’ conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976).

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Plaintiff shall present the amended complaint on the form provided by the Court. The

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amended complaint must be legibly rewritten or retyped in its entirety, it should be an original

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and not a copy, it should contain the same case number, and it may not incorporate any part of

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the original complaint by reference. The amended complaint will act as a complete substitute for

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the original complaint, and not as a supplement. An amended complaint supersedes the original

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

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other grounds, Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). Therefore, the

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amended complaint must be complete in itself and all facts and causes of action alleged in the

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original complaint that are not alleged in the amended complaint are waived. Forsyth, 114 F.3d

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at 1474. The Court will screen the amended complaint to determine whether it contains factual

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allegations linking each defendant to the alleged violations of plaintiff’s rights. The Court will

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not authorize service of the amended complaint on any defendant who is not specifically linked

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to a violation of plaintiff’s rights.

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ORDER TO SHOW CAUSE OR AMEND - 4

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If plaintiff fails to file an amended complaint or fails to adequately address the issues

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raised herein on or before October 27, 2017, the undersigned will recommend dismissal of this

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action pursuant to 28 U.S.C. § 1915.

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The Clerk is directed to send plaintiff the appropriate forms for filing a 42 U.S.C. § 1983

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civil rights complaint and for service. The Clerk is further directed to send copies of this order

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and Pro Se Instruction Sheet to plaintiff.

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Dated this 4th day of October, 2017.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE OR AMEND - 5