Cross v. Department of Corrections

Filing 8

ORDER TO SHOW CAUSE or Amend 6 Complaint, signed by Magistrate Judge J Richard Creatura. Plaintiff's Show Cause Response or Amended Complaint due by 5/11/2018. (Attachments: # 1 Amended Complaint Form (blank), # 2 Address List Form (blank), # 3 Pro se Instruction Sheet)**11 PAGE(S), PRINT ALL**(Ryan Cross, Prisoner ID: 382374)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RYAN CROSS,

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Plaintiff,

CASE NO. 3:18-cv-05187-BHS-JRC
ORDER TO SHOW CAUSE OR
AMEND COMPLAINT

v.
DEPARTMENT OF CORRECTIONS,
Defendant.

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Plaintiff Ryan Cross, proceeding pro se and in forma pauperis, filed this civil rights
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complaint under 42 U.S.C. § 1983. Plaintiff alleges his constitutional rights were violated when
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he was denied one of his most important medications. However, the only defendant he has
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named is the Department of Corrections, and he has not alleged violations by any other
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individuals in the body of his complaint. Having reviewed and screened plaintiff’s complaint
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under 28 U.S.C. § 1915A, the Court declines to serve plaintiff’s complaint because plaintiff has
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yet to plead sufficient facts to demonstrate that any individual violated his constitutional rights.
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However, the Court provides plaintiff leave to file an amended pleading by May 11, 2018, to
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cure the deficiencies identified herein.
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ORDER TO SHOW CAUSE OR AMEND COMPLAINT
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BACKGROUND
Plaintiff originally filed his complaint in March of 2018. Dkt. 1. 1 He initially filed his

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complaint with neither an application to proceed in forma pauperis nor the filing fee, but

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subsequently provided an application to proceed in form pauperis (Dkt. 4) which the Court

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granted (Dkt. 5). He alleges that defendant violated his constitutional rights when medical staff

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refused to provide plaintiff with Effexor, allegedly one of his most important medications,

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resulting in side aches and headaches that have persisted even after he was returned to the

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medication. Dkt. 6. He does not list a specific remedy, but states he hopes the Court will “get

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[plaintiff] the justice [he] deserves.” Id. at 4.

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DISCUSSION

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I.

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42 U.S.C. § 1983 applies to the actions of “persons” acting under color of state law.

State or Arm of the State as Defendant

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However, for the purposes of § 1983, a state is not a “person.” See Arizonans for Official

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English v. Arizona, 520 U.S. 43, 69 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

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(1989). Similarly, an agency that is an arm of the state is also not a “person” under § 1983. See

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Howlett v. Rose, 496 U.S. 356, 365 (1990); also Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per

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curiam) (concluding that the suit against the state Board of Corrections was barred by the

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Eleventh Amendment).

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Here, plaintiff has only named the DOC as the defendant. The DOC is an agency that is

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an arm of the State of Washington. Because of this, the DOC is not a person who can be sued

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under § 1983. Therefore, plaintiff has not yet stated a claim upon which relief can be granted and

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The Court notes that plaintiff also filed another cause of action naming the DOC as defendant, but
alleging that defendant unlawfully refuses to provide plaintiff with a soy-free diet, despite his soy allergy. Cross v.
Dep’t of Corr., 3:18-cv-05186-RJB-JRC. The Court will deal with that case separately from this case.
ORDER TO SHOW CAUSE OR AMEND COMPLAINT
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the Court declines to serve his complaint at this time.

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II.

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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). Further, a § 1983 suit cannot be based on vicarious liability

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alone, but must allege an individual defendant’s own conduct violated the plaintiff’s civil rights.

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Personal Participation by Defendant

City of Canton v. Harris, 489 U.S. 378, 385-90 (1989).
Here, as noted above, plaintiff has only named the DOC as the defendant in this action.

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He has not named any particular individual or explained how any particular individual

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defendants allegedly deprived him of his constitutional rights by refusing to provide him

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necessary medication. Therefore, plaintiff has not yet stated a claim for which relief can be

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granted.

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III.

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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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ORDER TO SHOW CAUSE OR AMEND COMPLAINT
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individuals’ conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976).
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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If plaintiff fails to file an amended complaint or fails to adequately address the issues

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raised herein on or before May 11, 2018, the undersigned may 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 16th day of April, 2018.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE OR AMEND COMPLAINT
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