Green v. Gilbert et al

Filing 7

ORDER directing Plaintiff to file Amended Complaint by January 8, 2018, signed by Magistrate Judge David W. Christel. (Attachments: # 1 Proposed Amended Complaint (blank), # 2 Proposed Address/Service List (blank), # 3 pro se instruction sheet)**12 PAGE(S), PRINT ALL**(DeAngelo Green, Prisoner ID: 310589)(CMG)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 DEANGELO A GREEN, 11 12 13 CASE NO. 3:17-CV-05898-RBL-DWC Plaintiff, ORDER TO FILE AMENDED COMPLAINT v. MARGARET GILBERT, MICHAEL GLEASON, JOHN DOE, JANE DOE, 14 Defendants. 15 16 Plaintiff DeAngelo A. Green, proceeding pro se, filed this civil rights complaint under 42 17 U.S.C. § 1983. Having reviewed and screened Plaintiff’s Complaint under 28 U.S.C. § 1915A, 18 the Court finds Plaintiff has failed to state a claim but provides Plaintiff leave to file an amended 19 pleading by January 8, 2018, to cure the deficiencies identified herein. 20 21 BACKGROUND Plaintiff, who is housed at Washington State Penitentiary, alleges his constitutional rights 22 were violated when Defendants Margaret Gilbert and Michael Gleason negligently failed to 23 protect him. Dkt. 3. Plaintiff alleges inmate Matthew Holt put a “hit” on Plaintiff. Id. Plaintiff 24 was attacked and correctional employees failed to protect him from the assault. Id. ORDER TO FILE AMENDED COMPLAINT - 1 1 DISCUSSION 2 Under the Prison Litigation Reform Act of 1995, the Court is required to screen 3 complaints brought by prisoners seeking relief against a governmental entity or officer or 4 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the 5 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to 6 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant 7 who is immune from such relief.” Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 8 152 F.3d 1193 (9th Cir. 1998). 9 I. 10 Personal Participation In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) he 11 suffered a violation of rights protected by the Constitution or created by federal statute, and (2) 12 the violation was proximately caused by a person acting under color of state law. See Crumpton 13 v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to 14 identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 15 (1994). 16 To satisfy the second prong, a plaintiff must allege facts showing how individually 17 named defendants caused, or personally participated in causing, the harm alleged in the 18 complaint. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold v. IBM, 637 F.2d 1350, 19 1355 (9th Cir. 1981). A person subjects another to a deprivation of a constitutional right when 20 committing an affirmative act, participating in another’s affirmative act, or omitting to perform an 21 act which is legally required. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Sweeping 22 conclusory allegations against an official are insufficient to state a claim for relief. Leer, 844 F.2d 23 at 633. Further, a § 1983 suit cannot be based on vicarious liability alone, but must allege the 24 ORDER TO FILE AMENDED COMPLAINT - 2 1 defendant’s own conduct violated the plaintiff’s civil rights. City of Canton v. Harris, 489 U.S. 2 378, 385-90 (1989). 3 In the Complaint, Plaintiff names the following Defendants: Margaret Gilbert, Michael 4 Gleason, John Doe 1-10, and Jane Doe 1-10. Dkt. 3. Plaintiff fails to state the alleged wrong5 doing of any Defendant in this case. He provides detailed information regarding his interactions 6 with fellow inmates incarcerated in Washington State correctional facilities. Id. He, however, 7 fails to explain what actions or inactions by Defendants resulted in deliberate indifference to a 8 serious risk of harm. See id. Rather, Plaintiff provides only a generalized statement alleging 9 Defendants were deliberately indifferent to Plaintiff’s needs by negligently failing to protect him. 10 Plaintiff’s conclusory allegations are insufficient to show Defendants personally participated in 11 the alleged constitutional violations. See Jones v. Community Development Agency, 733 F.2d 12 646, 649 (9th Cir. 1984) (vague and mere conclusory allegations unsupported by facts are not 13 sufficient to state section 1983 claims). The Court notes Defendants Gilbert and Gleason hold supervisory positions. See Dkt. 3. 14 15 Plaintiff cannot bring § 1983 action against a supervisor on a theory that the supervisor is liable 16 for the acts of his or her subordinates. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). If Plaintiff wishes to pursue this § 1983 action, he must provide a short, plain statement 17 18 explaining exactly what each Defendant did or failed to do and how the actions violated 19 Plaintiff’s constitutional rights and caused him harm. 20 21 II. Instruction to Plaintiff and the Clerk If Plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file an 22 amended complaint and within the amended complaint, he must write a short, plain statement 23 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the 24 person who violated the right; (3) exactly what the individual did or failed to do; (4) how the ORDER TO FILE AMENDED COMPLAINT - 3 1 action or inaction of the individual is connected to the violation of Plaintiff’s constitutional 2 rights; and (5) what specific injury Plaintiff suffered because of the individual’s conduct. See 3 Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976). Each claim for relief must be simple, 4 concise, and direct. 5 Plaintiff shall present the amended complaint on the form provided by the Court. The 6 amended complaint must be legibly rewritten or retyped in its entirety, it should be an original 7 and not a copy, it should contain the same case number, and it may not incorporate any part of 8 the original complaint by reference. The amended complaint will act as a complete substitute for 9 the original Complaint, and not as a supplement. The Court will screen the amended complaint to 10 determine whether it contains factual allegations linking each defendant to the alleged violations 11 of Plaintiff’s rights. 12 The Court notes Plaintiff attached a personal declaration to the Complaint. See Dkt. 3. 13 The declaration is over 35 pages long. Id. It repeats several of the allegations in the Complaint 14 and adds additional factual assertions. Id. If Plaintiff wishes the Court to consider the allegations 15 in the declaration, he must include those factual assertions in the Complaint. Further, the Court 16 reminds Plaintiff that Federal Rule of Civil Procedure 8 requires a complaint to contain “a short 17 and plain statement of the claim showing the pleader is entitled to relief,” and “[e]ach averment 18 of a pleading shall be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(e). Plaintiff’s amended 19 complaint must comply with Rule 8. 20 If Plaintiff fails to file an amended complaint or fails to adequately address the issues 21 raised herein on or before January 8, 2018, the undersigned will recommend dismissal of this 22 action as frivolous pursuant to 28 U.S.C. § 1915. 23 24 ORDER TO FILE AMENDED COMPLAINT - 4 1 The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. § 1983 2 civil rights complaint and for service. The Clerk is further directed to send copies of this Order 3 and Pro Se Instruction Sheet to Plaintiff. 4 Dated this 6th day of December, 2017. A 5 6 David W. Christel United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER TO FILE AMENDED COMPLAINT - 5

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