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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DANNY JOE BARBER, III, CASE NO. 3:24-cv-05643-RAJ-GJL 11 Plaintiff, v. ORDER DECLINING TO SERVE 12 COMPLAINT AND GRANTING T. RUPP, et al., LEAVE TO AMEND 13 Defendants. 14
15 Plaintiff Danny Joe Barber, III, proceeding pro se and in forma pauperis, filed this civil 16 rights actions pursuant to 42 U.S.C. § 1983. Having reviewed and screened Plaintiff’s Proposed 17 Complaint (Dkt. 5-1) under 28 U.S.C. § 1915A, the Court declines to serve the Complaint, but 18 grants Plaintiff leave to amend his Complaint, if possible, to correct the deficiencies identified 19 herein. 20 I. BACKGROUND 21 Plaintiff, a pretrial detainee currently incarcerated at Kitsap County Jail, initiated this 22 civil rights action alleging violations of his right to counsel, “interfering with a civil suit,” and 23 “denial of legal mail requests.” Dkt. 5-1 at 3. Plaintiff names the Kitsap County Sheriff’s Office, 24 1 Officer T. Rupp, Officer J. Phipps, and Lieutenant K. Hall as Defendants. Id. at 2–3. In the 2 Complaint, Plaintiff alleges, “[a]fter numerous requests, both Officer J. Phipps and Officer T. 3 Rupp antagonistically replied & denied my request for proper civil suit packets implicating the 4 Sheriff Department of Kitsap & Bremerton P.D. in violating my constitutional/civil rights
5 numerous times/10x.” Id. at 4. He seeks payment of $100,000.00 for each violation. Id. at 6. 6 II. DISCUSSION 7 Under the Prison Litigation Reform Act of 1995, the Court is required to screen 8 complaints brought by prisoners seeking relief against a governmental entity or officer or 9 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the 10 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to 11 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant 12 who is immune from such relief.” 28 U.S.C. § 1915A(b); see 28 U.S.C. § 1915(e)(2); Barren v. 13 Harrington, 152 F.3d 1193 (9th Cir. 1998). Dismissal on these grounds counts as a “strike” 14 under 28 U.S.C. § 1915(g).
15 Having reviewed the Complaint, the Court notes the following deficiencies. 16 A. Failure to State a Claim 17 To sustain a 42 U.S.C. § 1983 claim, a plaintiff must show that he suffered a violation of 18 rights protected by the Constitution or created by federal statute, and that the violation was 19 proximately caused by a person acting under color of state or federal law. West v. Atkins, 487 20 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). A plaintiff must 21 provide more than conclusory allegations; he must set forth specific, plausible facts to support 22 his claims. Ashcroft v. Iqbal, 556 U.S. 662, 678–83 (2009). Moreover, a plaintiff in a § 1983 23 action must allege facts that show how an individually named defendant caused or personally
24 1 participated in causing the harm alleged in the complaint. Arnold v. IBM, 637 F.2d 1350, 1355 2 (9th Cir. 1981). 3 Here, Plaintiff’s allegations are mere conclusory assertions. Plaintiff cites a general 4 timeframe and alludes to situations or events in which his civil rights were allegedly violated, but
5 gives no details as to those violations. See Dkt. 5-1 at 4. Defendant Lieutenant K. Hall is not 6 mentioned in the Complaint at all, and the Kitsap County Sheriff’s Office is only mentioned to 7 the extent that Plaintiff states his claims arose while he was incarcerated at the County’s Jail. Id. 8 at 5. 9 If Plaintiff chooses to file an amended complaint, he must set forth specific, plausible 10 facts to support each of his claims. He must explain how those facts support a violation of his 11 constitutional rights and specify when, where, and how any individual defendant personally 12 participated in causing his alleged injuries. Plaintiff must also ensure that any amended 13 complaint is a concise and organized document. See Fed. R. Civ. P. 8(a)(2) and (d)(1) (a 14 complaint must provide a “short and plain statement of the claim” and “[e]ach allegation must be
15 simple, concise, and direct.”). 16 B. Improper Defendant 17 Plaintiff names the Kitsap County Sheriff’s Office as a Defendant in this action. Dkt. 5-1. 18 Sheriff’s offices in Washington state are not “persons” subject to suit under § 1983. See Hordon 19 v. Kitsap Cnty. Sheriff’s Off., No. 3:20-cv-05464-RJB, 2020 WL 4286769, at *2 (W.D. Wash. 20 July 27, 2020) (citing Wright v. Clark Cnty. Sheriff’s Off., No. 3:15-cv-05887-BHS-JRC, 2016 21 WL 1643988, at *2 (W.D. Wash. Apr. 26, 2016); Van Velkinburgh v. Wulick, No. 3:07-cv- 22 05050-FDB, 2008 WL 2242470, at *1 (W.D. Wash. May 29, 2008); Bradford v. City of Seattle, 23
24 1 557 F. Supp. 2d 1189, 1207 (W.D. Wash. 2008)). The Kitsap County Sheriff’s Office is therefore 2 not a proper defendant here. 3 Further, a municipality or other local governmental unit, such as a county or city, may be 4 sued as a “person” under § 1983. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690–94
5 (1978). But a municipality cannot be held liable under § 1983 solely because it employs a 6 tortfeasor. Id. A plaintiff seeking to impose § 1983 liability on a municipality must therefore 7 identify a “policy” or “custom” of the municipality that caused the alleged injury. Bd. of the 8 Cnty. Comm’rs of Bryant Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 9 U.S. at 694). 10 Here, to the extent Plaintiff may be seeking to hold Kitsap County liable, he has not 11 identified a policy or custom responsible for his alleged injuries. To pursue a claim against 12 Kitsap County or any other municipality, he must identify a specific policy or custom practiced 13 by that municipality and explain how its application to him violated one or more of his federal 14 constitutional rights.
15 C. Additional Deficiencies 16 Because of the lack of specificity in the Complaint, the Court cannot ascertain whether 17 there may be additional deficiencies here, such as an issue arising under the doctrines set forth in 18 Heck v. Humphrey, 512 U.S. 477, 487 (1994) and Younger v. Harris, 401 U.S. 37 (1971).
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DANNY JOE BARBER, III, CASE NO. 3:24-cv-05643-RAJ-GJL 11 Plaintiff, v. ORDER DECLINING TO SERVE 12 COMPLAINT AND GRANTING T. RUPP, et al., LEAVE TO AMEND 13 Defendants. 14
15 Plaintiff Danny Joe Barber, III, proceeding pro se and in forma pauperis, filed this civil 16 rights actions pursuant to 42 U.S.C. § 1983. Having reviewed and screened Plaintiff’s Proposed 17 Complaint (Dkt. 5-1) under 28 U.S.C. § 1915A, the Court declines to serve the Complaint, but 18 grants Plaintiff leave to amend his Complaint, if possible, to correct the deficiencies identified 19 herein. 20 I. BACKGROUND 21 Plaintiff, a pretrial detainee currently incarcerated at Kitsap County Jail, initiated this 22 civil rights action alleging violations of his right to counsel, “interfering with a civil suit,” and 23 “denial of legal mail requests.” Dkt. 5-1 at 3. Plaintiff names the Kitsap County Sheriff’s Office, 24 1 Officer T. Rupp, Officer J. Phipps, and Lieutenant K. Hall as Defendants. Id. at 2–3. In the 2 Complaint, Plaintiff alleges, “[a]fter numerous requests, both Officer J. Phipps and Officer T. 3 Rupp antagonistically replied & denied my request for proper civil suit packets implicating the 4 Sheriff Department of Kitsap & Bremerton P.D. in violating my constitutional/civil rights
5 numerous times/10x.” Id. at 4. He seeks payment of $100,000.00 for each violation. Id. at 6. 6 II. DISCUSSION 7 Under the Prison Litigation Reform Act of 1995, the Court is required to screen 8 complaints brought by prisoners seeking relief against a governmental entity or officer or 9 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the 10 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to 11 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant 12 who is immune from such relief.” 28 U.S.C. § 1915A(b); see 28 U.S.C. § 1915(e)(2); Barren v. 13 Harrington, 152 F.3d 1193 (9th Cir. 1998). Dismissal on these grounds counts as a “strike” 14 under 28 U.S.C. § 1915(g).
15 Having reviewed the Complaint, the Court notes the following deficiencies. 16 A. Failure to State a Claim 17 To sustain a 42 U.S.C. § 1983 claim, a plaintiff must show that he suffered a violation of 18 rights protected by the Constitution or created by federal statute, and that the violation was 19 proximately caused by a person acting under color of state or federal law. West v. Atkins, 487 20 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). A plaintiff must 21 provide more than conclusory allegations; he must set forth specific, plausible facts to support 22 his claims. Ashcroft v. Iqbal, 556 U.S. 662, 678–83 (2009). Moreover, a plaintiff in a § 1983 23 action must allege facts that show how an individually named defendant caused or personally
24 1 participated in causing the harm alleged in the complaint. Arnold v. IBM, 637 F.2d 1350, 1355 2 (9th Cir. 1981). 3 Here, Plaintiff’s allegations are mere conclusory assertions. Plaintiff cites a general 4 timeframe and alludes to situations or events in which his civil rights were allegedly violated, but
5 gives no details as to those violations. See Dkt. 5-1 at 4. Defendant Lieutenant K. Hall is not 6 mentioned in the Complaint at all, and the Kitsap County Sheriff’s Office is only mentioned to 7 the extent that Plaintiff states his claims arose while he was incarcerated at the County’s Jail. Id. 8 at 5. 9 If Plaintiff chooses to file an amended complaint, he must set forth specific, plausible 10 facts to support each of his claims. He must explain how those facts support a violation of his 11 constitutional rights and specify when, where, and how any individual defendant personally 12 participated in causing his alleged injuries. Plaintiff must also ensure that any amended 13 complaint is a concise and organized document. See Fed. R. Civ. P. 8(a)(2) and (d)(1) (a 14 complaint must provide a “short and plain statement of the claim” and “[e]ach allegation must be
15 simple, concise, and direct.”). 16 B. Improper Defendant 17 Plaintiff names the Kitsap County Sheriff’s Office as a Defendant in this action. Dkt. 5-1. 18 Sheriff’s offices in Washington state are not “persons” subject to suit under § 1983. See Hordon 19 v. Kitsap Cnty. Sheriff’s Off., No. 3:20-cv-05464-RJB, 2020 WL 4286769, at *2 (W.D. Wash. 20 July 27, 2020) (citing Wright v. Clark Cnty. Sheriff’s Off., No. 3:15-cv-05887-BHS-JRC, 2016 21 WL 1643988, at *2 (W.D. Wash. Apr. 26, 2016); Van Velkinburgh v. Wulick, No. 3:07-cv- 22 05050-FDB, 2008 WL 2242470, at *1 (W.D. Wash. May 29, 2008); Bradford v. City of Seattle, 23
24 1 557 F. Supp. 2d 1189, 1207 (W.D. Wash. 2008)). The Kitsap County Sheriff’s Office is therefore 2 not a proper defendant here. 3 Further, a municipality or other local governmental unit, such as a county or city, may be 4 sued as a “person” under § 1983. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690–94
5 (1978). But a municipality cannot be held liable under § 1983 solely because it employs a 6 tortfeasor. Id. A plaintiff seeking to impose § 1983 liability on a municipality must therefore 7 identify a “policy” or “custom” of the municipality that caused the alleged injury. Bd. of the 8 Cnty. Comm’rs of Bryant Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 9 U.S. at 694). 10 Here, to the extent Plaintiff may be seeking to hold Kitsap County liable, he has not 11 identified a policy or custom responsible for his alleged injuries. To pursue a claim against 12 Kitsap County or any other municipality, he must identify a specific policy or custom practiced 13 by that municipality and explain how its application to him violated one or more of his federal 14 constitutional rights.
15 C. Additional Deficiencies 16 Because of the lack of specificity in the Complaint, the Court cannot ascertain whether 17 there may be additional deficiencies here, such as an issue arising under the doctrines set forth in 18 Heck v. Humphrey, 512 U.S. 477, 487 (1994) and Younger v. Harris, 401 U.S. 37 (1971). If 19 Plaintiff chooses to submit an amended complaint, he must provide sufficient facts for the Court 20 to properly assess what actions allegedly violated Plaintiff’s constitutional rights, who took those 21 actions, when those actions were taken, and how they violated his rights. 22 // 23 //
24 1 III. CONCLUSION 2 Because of the deficiencies described above, the Court declines to serve the Complaint or 3 to direct that an answer be filed. Plaintiff is, however, granted leave to amend his Complaint, if 4 possible, to correct the identified deficiencies. Within thirty (30) days from the date of this
5 Order, Plaintiff may submit an amended complaint that corrects the deficiencies outlined above. 6 The amended complaint must be filed under the same case number as this one, and will operate 7 as a complete substitute for, rather than a mere supplement to, the present complaint. See Ferdik 8 v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). If no amended complaint is timely filed, or if 9 Plaintiff files an amended complaint that fails to correct the deficiencies identified herein, 10 the Court may recommend that this matter be dismissed. 11 The Clerk is directed to send a copy of this Court’s prisoner civil rights complaint form to 12 Plaintiff, as well as copies of this Order to Plaintiff and to the Honorable Richard A. Jones. 13 Dated this 27th day of September, 2024. 14 A 15 16 Grady J. Leupold United States Magistrate Judge 17 18 19 20 21 22 23 24