Carter v. Zuber

• Court: District Court, W.D. Washington
• Decided: September 17, 2020
• Docket: 3:20-cv-05166
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LONNIE RAY CARTER, CASE NO. 3:20-cv-05166-RJB-JRC 11 Plaintiff, ORDER FOR PLAINTIFF TO 12 v. SHOW CAUSE OR AMEND COMPLAINT AND UPDATE 13 ASHLEY A. ZUBER, et al., ADDRESS 14 Defendants. 15 16 The District Court has referred this case to the undersigned Magistrate Judge pursuant to 17 28 U.S.C. § 636(b)(1)(A)–(B) and Local Magistrate Judge Rules MJR 1, MJR 2, and MJR 4. See 18 Am. Gen. Order No. 02-19. 19 This matter is before the Court on plaintiff’s motion to request the state of plaintiff’s 20 complaint. See Dkt. 17. In his motion, plaintiff requests that the Court order service of the 21 complaint (Dkt. 6) on the two defendants, Zuber and Roddey. See id. at 1–2. Additionally, in 22 his motion, plaintiff appears to respond to the Court’s order to show cause (Dkt. 8). See Dkt. 17 23 at 3–7. Therefore, the Court interprets plaintiff’s motion (Dkt. 17) as a response to the Court’s 24 order to show cause or amend complaint. See Dkts. 8. 1 Having carefully reviewed plaintiff’s motion and response to the order to show cause 2 (Dkt. 17), the Court declines to serve the complaint (Dkt. 6) as written. Because plaintiff is pro 3 se, the Court will offer him one more opportunity to amend his complaint to correct the 4 deficiencies identified in this Order on or before October 19, 2020. If plaintiff takes no action in

5 response to this Order, the Court will recommend dismissal without prejudice of all deficient 6 claims against defendants and will direct service of the complaint on defendants only as to 7 plaintiff’s claims that defendants allegedly violated his Eighth Amendment rights. 8 Furthermore—even if plaintiff amends the complaint—unless plaintiff updates his 9 current mailing address on or before October 19, 2020, the Court will recommend dismissal of 10 all claims without prejudice. 11 BACKGROUND 12 Plaintiff, proceeding pro se and in forma pauperis, initiated this matter in February 2020. 13 See Dkts. 1, 5. In his complaint, filed pursuant to 42 U.S.C. § 1983, plaintiff alleges that 14 defendants Zuber and Roddey, in their individual capacities, failed to protect him against risk of

15 serious harm and discriminated against him in violation of plaintiff’s Fifth, Sixth, Eighth, and 16 Fourteenth Amendment rights. See Dkt. 6, at 5, 18, 21–22, 31, 33, 43, 55, 58. Plaintiff also 17 claims that defendants violated 42 U.S.C. § 1985 by allegedly conspiring to place plaintiff in 18 closed custody at the Washington State Penitentiary (“WSP”) despite allegedly known danger to 19 plaintiff’s safety. See id. at 21. Plaintiff seeks compensatory and punitive damages, as well as a 20 declaratory judgment that defendants violated his constitutional rights. See id. at 32, 59. 21 On March 16, 2020, plaintiff filed a motion to supplement the record. See Dkt. 7. In his 22 motion, plaintiff requested unspecified injunctive relief and also appeared to name additional 23

24 1 defendants, raised additional claims of failure to protect plaintiff in violation of the Eighth 2 Amendment, and stated new facts not alleged in his complaint. See id. at 1–2. 3 On April 14, 2020, the Court entered an order to show cause or amend complaint, 4 allowing plaintiff to amend his complaint to add additional defendants and/or factual allegations

5 or otherwise respond to the order on or before May 14, 2020. See Dkt. 8. Plaintiff subsequently 6 contacted the Clerk of Court’s office to inform the Court that plaintiff could not timely respond 7 and that he planned to update his mailing address. On May 14, 2020, the Court entered an order 8 directing plaintiff to update his address and granting plaintiff an extension to response to the 9 order to show cause (Dkt. 8) on or before June 15, 2020. See Dkt. 11. The Clerk mailed a copy 10 of the Court’s May 14, 2020, order (Dkt. 11) to plaintiff; however, the order was returned and 11 marked “not here.” See Dkt. 14. 12 On May 29, 2020, plaintiff updated his mailing address to “General Delivery, Seattle, 13 Washington 98101” (Dkt. 12) and requested that the Court resend a copy of the order to show 14 cause (Dkt. 8) to his updated mailing address. See Dkt. 13. On June 29, 2020, the Court sua

15 sponte extended plaintiff’s deadline to respond to the order to show cause (Dkt. 8) to July 16, 16 2020. See Dkt. 15. Plaintiff did not respond to the Court’s order to show cause (Dkt. 8), and the 17 Court again entered an order directing plaintiff to update his current mailing address by August 18 28, 2020. See Dkt. 16. 19 On August 20, 2020, plaintiff filed the instant motion. See Dkt. 17. In his motion, 20 plaintiff requests that the Court order service of the complaint (Dkt. 6) on the two defendants, 21 Zuber and Roddey. See Dkt. 17, 1–2. Plaintiff also appears to respond, at least in part, to the 22 Court’s order to show cause or amend complaint (Dkt. 8) by attempting to state new claims 23 against two additional defendants (“Community Corrections Officer Ms. D. Nathan” and “her

24 1 supervisor Jane Doe”). See id. at 3–7. As stated above, the Court interprets plaintiff’s motion 2 (Dkt. 17) as a response to the Court’s order to show cause or amend complaint. See Dkts. 8. 3 DISCUSSION 4 Because plaintiff proceeds in forma pauperis and against governmental officers, his

5 complaint is subject to screening before service, meaning that this Court has the authority to 6 strike all or portions of the complaint at any time if the complaint fails to state a claim upon 7 which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii)–(iii). This Court will offer 8 plaintiff an opportunity to amend his complaint to cure the deficiencies, unless it is clear that 9 amendment would be futile. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 10 Having carefully screened plaintiff’s complaint (Dkt. 6), the Court finds that plaintiff has 11 stated a cognizable claim that defendants Zuber and Roddey allegedly violated plaintiff’s Eighth 12 Amendment rights. See Dkt. 6. However, for the reasons discussed below, the Court finds that 13 plaintiff has failed to state claim upon which relief can be granted for his remaining claims. 14 I. Failure to State a Claim

15 A complaint “must contain a ‘short and plain statement of the claim showing that the 16 pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. 17 Civ. P. 8(a)(2)). To state a claim on which relief may be granted, plaintiff must go beyond an 18 “unadorned, the-defendant-harmed-me accusation[s],” “labels and conclusions,” and “naked 19 assertions devoid of further factual enhancement.” Id. at 678 (internal quotation marks and 20 citations omitted). Although the Court liberally interprets a pro se complaint, even a liberal 21 interpretation will not supply essential elements of a claim that plaintiff has not pleaded. Ivey v. 22 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). In addition to setting forth the legal 23 framework of a claim, there must be sufficient factual allegations undergirding that framework

24 1 “to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 570 (2007)). 3 II. Section 1983 Claims 4 a. General Principles

5 In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show the 6 following: (1) he suffered a violation of rights protected by the Constitution or created by federal 7 statute, and (2) the violation was proximately caused by a person acting under color of state law. 8 See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is 9 therefore to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 10 U.S. 266, 271 (1994). To satisfy the second prong, a plaintiff must allege facts showing how 11 individually named defendants caused, or personally participated in causing, the harm alleged in 12 the complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). 13 Applying these principles, plaintiff’s complaint suffers from deficiencies requiring 14 dismissal of the following claims if not corrected in an amended complaint, as set forth below.

15 a. Fifth Amendment 16 In his complaint, plaintiff alleges that defendants violated his Fifth Amendment rights. 17 See Dkt. 6, at 5, 22, 31, 33, 58. 18 The Fifth Amendment prohibits the federal government from depriving persons of due 19 process and equal protection under the law. See Sessions v. Morales-Santana, 137 S. Ct. 1678, 20 1686 n. 1 (2017); Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). In his complaint, 21 plaintiff names two Washington State prison officials, defendants Zuber and Roddey. See Dkt. 22 6. However, state prison officials are not federal government actors for purposes of the Fifth 23 Amendment. See Bingue, 512 F.3d at 1174. Accordingly, plaintiff fails to state a claim under

24 1 the Fifth Amendment because he has not alleged any federal government action that allegedly 2 deprived him of due process or equal protection under the law. See id. 3 b. Sixth Amendment 4 Plaintiff alleges that defendants violated his Sixth Amendment rights. See Dkt. 6, at 5,

5 22, 31, 33, 58. 6 The Sixth Amendment provides that ‘[i]n all criminal proceedings, the accused shall 7 enjoy the right to a speedy and public trial . . . ; to be confronted with witnesses against him; to 8 have compulsory process for obtaining witnesses in his favor, and to have the Assistance of 9 Counsel for his defence.” U.S. Const. amend. VI; see also Nordstrom v. Ryan, 762 F.3d 903, 10 909 (9th Cir. 2014). Here, plaintiff fails to allege any supporting facts that would implicate 11 defendants’ violation of plaintiff’s Sixth Amendment rights—rather, plaintiff merely concludes 12 that defendant Zuber and Roddey violated his Sixth Amendment rights. To state a claim on 13 which relief may be granted, plaintiff must go beyond “labels and conclusions,” and explain how 14 defendants allegedly violated his Sixth Amendment rights. Ashcroft, 556 U.S. at 678.

15 c. Fourteenth Amendment 16 In his complaint, plaintiff alleges that defendants Zuber and Roddey violated his 17 Fourteenth Amendment rights to equal protection under the law by allegedly discriminating 18 against plaintiff based on his race. See Dkt. 6, at 16, 22, 28, 46, 58. 19 “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of 20 the Fourteenth Amendment[,] a plaintiff must show that the defendants acted with an intent or 21 purpose to discriminate against the plaintiff based upon membership in a protected class.” 22 Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (internal citations omitted) (rejecting 23 equal protection claim where a prisoner plaintiff failed to show that he was treated differently

24 1 than any other prisoner in the relevant class). “‘Discriminatory purpose’ . . . implies more than 2 intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . 3 selected or reaffirmed a particular course of action at least in part because of, not merely in spite 4 of, its adverse effects upon an identifiable group.’” Navarro v. Block, 72 F.3d 712, 716 n.5. (9th

5 Cir. 1995) (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (internal 6 quotations omitted)). Additionally, plaintiff must identify a group of similarly situated 7 individuals who have been treated more favorably, so that the factor motivating the alleged 8 discrimination can be identified. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th 9 Cir. 2005). 10 Here, plaintiff alleges that he is a member of a protected class based on his race and that 11 defendants Zuber and Roddey “treat[ed] plaintiff . . . differently from other, similarly situated . . . 12 prisoners residing at [WSP].” Dkt. 6, at 16, 22, 28, 46, 58. Although plaintiff concludes that 13 defendants Zuber and Roddey treated plaintiff differently than similarly situated prisoners, 14 plaintiff fails to allege how defendants treated him any differently, or less favorably, than the

15 identified group of similarly situated prisoners. Further, plaintiff does not articulate whether the 16 similarly situated prisoners were in a different protected class than plaintiff. As noted above, to 17 state a claim on which relief may be granted, plaintiff must go beyond “labels and conclusions,” 18 and he must explain how defendants allegedly treated him differently in violation of the 19 Fourteenth Amendment based on his protected class. Ashcroft, 556 U.S. at 678. 20 III. 42 U.S.C. § 1985(3) 21 In his complaint, plaintiff claims that defendants violated 42 U.S.C. § 1985(3) by 22 allegedly conspiring with other prison officials to place plaintiff in a “closed custody, prison 23

24 1 environment” despite allegedly known danger to plaintiff’s safety. See Dkt. 6, at 20–21, 25, 46– 2 48. 3 To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege “(1) a conspiracy, (2) 4 to deprive any person or a class of persons of the equal protection of the laws, or equal privileges

5 and immunities under the laws, (3) an act by one of the conspirators in furtherance of the 6 conspiracy, and (4) a personal injury, property damage or a deprivation of any right or privilege 7 of a citizen of the United States.” Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980) (citing 8 Griffin v. Breckenridge, 403 U.S. 88, 102–103 (1971)). “The language requiring intent to 9 deprive of equal protection … means that there must be some racial, or perhaps otherwise class- 10 based, invidiously discriminatory animus behind the conspirators’ action.” Griffin, 403 U.S. at 11 102. 12 Here, plaintiff fails to allege that defendants Zuber and Roddey conspired to allegedly 13 deprive plaintiff of equal protection under the law on the basis of plaintiff’s membership in a 14 protected class. Rather, plaintiff merely alleges that defendants conspired to place plaintiff in

15 closed custody at WSP. See Dkt. 20–21, 25, 46–48. Although plaintiff claims that defendants 16 allegedly discriminated against him based on his protected class, plaintiff fails to link 17 defendants’ allegedly discriminatory acts to any alleged conspiracy between the defendants. 18 Griffin, 403 U.S. at 102. 19 IV. 18 U.S.C. § 242 20 In his complaint, plaintiff cites to 18 U.S.C. § 242 “deprivation [of] civil rights under 21 color of law.” Dkt. 6, at 31, 58. Although plaintiff does not appear to allege any specific facts 22 supporting such a claim, his claim nevertheless fails because 18 U.S.C. § 242 is a criminal statute 23

24 1 that does not give rise to civil liability. See Allen v. Gold Country Casino, 464 F.3d 1044, 1048 2 (9th Cir. 2006) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)). 3 Here, it is clear that amendment to this claim would be futile, and thus, the Court cautions 4 plaintiff against restating any claim against defendants under 18 U.S.C. § 242 in any amended

5 complaint, as any such claim would be dismissed. See Cato, 70 F.3d at 1106. 6 V. Additional Defendants 7 In his motion and response to the order to show cause (Dkt. 8), plaintiff attempts to name 8 additional defendants, “Community Corrections Officer Ms. D. Nathan” and “her supervisor 9 Jane Doe,” to the instant matter based on their alleged violations of plaintiff’s Fourteenth 10 Amendment rights. See Dkt. 17, at 1–2. However, as noted in the Court’s order to show cause, 11 plaintiff must file an amended complaint in order to add any additional defendants in this 12 litigation. See Dkt. 8, at 2–3. Accordingly, if plaintiff wishes to add any additional defendants, 13 plaintiff must file an amended complaint naming all defendants to this action and alleging facts 14 sufficient to state a claim under 42 U.S.C. § 1983, as discussed above.

15 VI. Update Address 16 Finally, the Court notes that plaintiff has not updated his current mailing address as 17 ordered in the Court’s July 29, 2020, order directing plaintiff to update his address. See Dkt. 16. 18 In his motion and response to the order to show cause (Dkt. 8), plaintiff states that he is currently 19 homeless. See Dkt. 17, at 7. 20 As previously stated by this Court, a party proceeding pro se shall keep the Court and 21 opposing parties advised as to his current mailing address. LCR 41(b)(2). If mail directed to a 22 pro se plaintiff by the Clerk is returned by the Postal Service or is undeliverable, and if plaintiff 23 fails to notify the Court and opposing parties within 60 days thereafter of his current mailing

24 1 address, the Court may dismiss the action without prejudice for failure to prosecute. LCR 2 41(b)(2). 3 Given plaintiff’s current housing circumstances, the Court will extend the deadline by 4 which plaintiff must provide the Court with his current mailing to October 19, 2020. However,

5 if plaintiff fails to notify the Court of his current mailing address by October 19, 2020, the 6 undersigned will recommend dismissal of this action without prejudice. 7 CONCLUSION AND DIRECTIONS TO CLERK AND PLAINTIFF 8 As discussed above, the Court declines to serve plaintiff’s complaint (Dkt. 6) as written, 9 and therefore, the Court DENIES plaintiff’s motion (Dkt. 17) to serve the complaint on 10 defendants. However, the Court will provide plaintiff one more opportunity to amend his 11 complaint and update his current mailing address on or before October 19, 2020. If plaintiff 12 fails to amend his complaint, the Court will recommend dismissal of all claims except plaintiff’s 13 claims that defendants allegedly violated his Eighth Amendment rights. 14 Further—regardless of whether he chooses to amend his complaint or not—plaintiff must

15 notify the Court of his current mailing address by October 19, 2020. If plaintiff fails to do so, 16 the undersigned will recommend dismissal of this action without prejudice. 17 If plaintiff intends to continue pursuing a civil action in this Court, he must file an 18 amended complaint, and within that complaint, he must write a short, plain statement telling the 19 Court: (1) each constitutional right that plaintiff believes was violated; (2) the name or names of 20 the person or persons who violated the right; (3) exactly what each individual or entity did or 21 failed to do; (4) how the action or inaction of each individual or entity is connected to the 22 violation of plaintiff’s constitutional rights; and (5) what specific injury plaintiff suffered 23 because of the individuals’ conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976).

24 1 Plaintiff shall present the amended complaint on the form provided by the Court. The 2 amended complaint must be legibly written or typed in its entirety, it should be an original and 3 not a copy, it should contain the same case number, and it may not incorporate any part of the 4 original complaint by reference. The amended complaint will act as a complete substitute for the

5 original complaint and not as a supplement. An amended complaint supersedes all previous 6 complaints. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part on 7 other grounds, Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). Therefore, the 8 amended complaint must be complete in itself, and all facts and causes of action alleged in the 9 original complaint that are not alleged in the amended complaint are waived. Forsyth, 114 F.3d 10 at 1474. The Court will screen the amended complaint to determine whether it contains factual 11 allegations linking each defendant to the alleged violations of plaintiff’s rights. 12 The Clerk is directed to mail copies of this Order, the complaint (Dkt. 6), the order 13 directing plaintiff to update address (Dkt. 16), and the form for filing a 42 U.S.C. § 1983 civil 14 rights complaint to plaintiff at his last known address and his prior mailing addresses of record.

15 Dated this 17th day of September, 2020. 16

17 A 18 J. Richard Creatura 19 United States Magistrate Judge

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