Boyd v. Quigley et al

Filing 6

ORDER to Show Cause or Amend the Complaint, signed by Magistrate Judge Theresa L Fricke. Plaintiff's show cause response or amended complaint due by 1/26/2018. (Attachments: # 1 (blank) Amended Complaint form, # 2 (blank) Address/Service List, # 3 Pro Se Instruction Sheet)(CMG)(cc mailed to Plaintiff with forms)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 BRODERICK J. BOYD, Case No. 3:17-cv-05869-RJB-TLF 7 Plaintiff, ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT v. 8 MARK THOMAS QUIGLEY, et al. , 9 Defendants. 10 This matter is before the Court on plaintiff’s filing of a proposed civil rights complaint. 1 11 12 Plaintiff has been granted leave to proceed in forma pauperis. In light of the deficiencies in the 13 complaint discussed herein, however, the undersigned will not direct service of the complaint at 14 this time. Plaintiff, though, will be provided the opportunity by January 26, 2018 to show cause 15 why the complaint should not be dismissed or to file an amended complaint. 16 BACKGROUND Plaintiff is incarcerated at Pierce County Jail. He sues his assigned defense attorney Mark 17 18 Thomas Quigley and the Department of Assigned Counsel (DAC). Dkt. 1. Plaintiff claims his 19 Fifth, Sixth, and Fourteenth Amendment rights have been violated. Dkt. 1, at 1. He alleges that 20 Mr. Quigley engaged in a range of inappropriate behaviors outside the bounds of defense 21 counsel’s professional role. Dkt. 1, at 2-3. He alleges this behavior has left him “emotionally 22 distraught.” Dkt. 1, at 3. He also alleges that the DAC “doesn’t have safety mechanisms in 23 24 1 Dkt. 1. 25 ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT - 1 1 placed [sic] to safeguard the legal well being of impoverished clients from dysfunctional, well 2 educated attorneys with socio-pathic tendencies.” Dkt. 1, at 2. He asks for a no-contact order, 3 damages, removal of Mr. Quigley as counsel, and his removal from DAC. Dkt. 1, at 3. 4 5 DISCUSSION The Court declines to serve the complaint because it contains fatal deficiencies that, if not 6 addressed, will lead to a recommendation of dismissal of the entire action for failure to state a 7 claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1). 8 9 Plaintiff’s complaint is brought under § 1983. To state a claim under § 1983, a plaintiff must allege facts showing (1) the conduct about which he complains was committed by a person 10 acting under the color of state law; and (2) the conduct deprived him of a federal constitutional 11 or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a 12 valid § 1983 claim, a plaintiff must allege that he suffered a specific injury as a result of the 13 conduct of a particular defendant, and he must allege an affirmative link between the injury and 14 the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 15 Plaintiff’s complaint fails to state a cognizable claim against Mr. Quigley or the DAC. To 16 state a claim under 42 U.S.C. § 1983, plaintiff must allege facts showing that a defendant acted 17 under color of state law. Wood, 879 F.2d at 587. It is well established that court-appointed 18 defense attorneys like Mr. Quigley are not acting under color of state law when representing 19 clients and therefore cannot be sued under § 1983. Polk County v. Dodson, 454 U.S. 312, 317-25 20 (1981); Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2002). 21 In addition, while Pierce County is a municipality that can be sued under § 1983, Monell 22 v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978), Mr. Boyd fails to allege 23 how the County's employees or agents acted through an official custom, pattern or policy that 24 25 ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT - 2 1 permits deliberate indifference to, or violates, his civil rights or that the County ratified the 2 unlawful conduct. Monell, 436 U.S. at 690–91. As such, Mr. Boyd’s complaint fails to state a § 3 1983 claim against Mr. Quigley or the DAC. 4 5 CONCLUSION Due to the deficiencies described above, the Court will not serve the complaint. Plaintiff 6 may show cause why his complaint should not be dismissed or may file an amended complaint to 7 cure, if possible, the deficiencies noted herein, on or before January 26, 2018. If an amended 8 complaint is filed, it must be legibly rewritten or retyped in its entirety and contain the same case 9 number. Any cause of action alleged in the original complaint that is not alleged in the amended 10 complaint is waived. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in 11 part on other grounds, Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012). 12 The Court will screen the amended complaint to determine whether it states a claim for 13 relief cognizable under 42 U.S.C. § 1983. If the amended complaint is not timely filed or fails to 14 adequately address the issues raised herein, the undersigned will recommend dismissal of this 15 action as frivolous under 28 U.S.C. § 1915, and the dismissal will count as a “strike” under 28 16 U.S.C. § 1915(g). Plaintiff should be aware that a prisoner who brings three or more civil actions 17 or appeals that are dismissed on the grounds that they are legally frivolous, malicious, or fail to 18 state a claim, will be precluded from bringing any other civil action or appeal in forma pauperis, 19 “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 20 21 22 23 24 25 ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT - 3 1 2 3 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 7th day of December, 2017. 4 5 6 A 7 Theresa L. Fricke United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT - 4

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