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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRODERICK J. BOYD,
Case No. 3:17-cv-05869-RJB-TLF

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Plaintiff,
ORDER TO SHOW CAUSE OR
AMEND THE COMPLAINT

v.

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MARK THOMAS QUIGLEY, et al. ,

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Defendants.

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This matter is before the Court on plaintiff’s filing of a proposed civil rights complaint. 1

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Plaintiff has been granted leave to proceed in forma pauperis. In light of the deficiencies in the

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complaint discussed herein, however, the undersigned will not direct service of the complaint at

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this time. Plaintiff, though, will be provided the opportunity by January 26, 2018 to show cause

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why the complaint should not be dismissed or to file an amended complaint.

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BACKGROUND
Plaintiff is incarcerated at Pierce County Jail. He sues his assigned defense attorney Mark

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Thomas Quigley and the Department of Assigned Counsel (DAC). Dkt. 1. Plaintiff claims his

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Fifth, Sixth, and Fourteenth Amendment rights have been violated. Dkt. 1, at 1. He alleges that

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Mr. Quigley engaged in a range of inappropriate behaviors outside the bounds of defense

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counsel’s professional role. Dkt. 1, at 2-3. He alleges this behavior has left him “emotionally

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distraught.” Dkt. 1, at 3. He also alleges that the DAC “doesn’t have safety mechanisms in

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Dkt. 1.

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ORDER TO SHOW CAUSE OR AMEND THE
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placed [sic] to safeguard the legal well being of impoverished clients from dysfunctional, well

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educated attorneys with socio-pathic tendencies.” Dkt. 1, at 2. He asks for a no-contact order,

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damages, removal of Mr. Quigley as counsel, and his removal from DAC. Dkt. 1, at 3.

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DISCUSSION
The Court declines to serve the complaint because it contains fatal deficiencies that, if not

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addressed, will lead to a recommendation of dismissal of the entire action for failure to state a

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claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1).

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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

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acting under the color of state law; and (2) the conduct deprived him of a federal constitutional

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or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a

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valid § 1983 claim, a plaintiff must allege that he suffered a specific injury as a result of the

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conduct of a particular defendant, and he must allege an affirmative link between the injury and

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the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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Plaintiff’s complaint fails to state a cognizable claim against Mr. Quigley or the DAC. To

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state a claim under 42 U.S.C. § 1983, plaintiff must allege facts showing that a defendant acted

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under color of state law. Wood, 879 F.2d at 587. It is well established that court-appointed

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defense attorneys like Mr. Quigley are not acting under color of state law when representing

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clients and therefore cannot be sued under § 1983. Polk County v. Dodson, 454 U.S. 312, 317-25

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(1981); Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2002).

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In addition, while Pierce County is a municipality that can be sued under § 1983, Monell

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v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978), Mr. Boyd fails to allege

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how the County's employees or agents acted through an official custom, pattern or policy that

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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 2

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permits deliberate indifference to, or violates, his civil rights or that the County ratified the

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unlawful conduct. Monell, 436 U.S. at 690–91. As such, Mr. Boyd’s complaint fails to state a §

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1983 claim against Mr. Quigley or the DAC.

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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 January 26, 2018. 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).

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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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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 3

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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 7th day of December, 2017.

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A

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Theresa L. Fricke
United States Magistrate Judge

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