1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 CHRISTOPHER WILLIAM HARRIS, Case No. 2:23-cv-02006-MJP-TLF 7 Plaintiff, v. ORDER TO SHOW CAUSE OR 8 AMEND THE COMPLAINT AMERICAN BEHAVIORAL HEALTH 9 SYSTEMS, et al., 10 Defendants. 11 This matter is before the Court on plaintiff’s filing of a civil rights complaint. 12 Plaintiff is unrepresented by counsel and seeks in forma pauperis (IFP) status in this 13 matter.1 Dkt. 4. Considering deficiencies in the complaint discussed below, however, the 14 undersigned will not direct service of the complaint at this time. On or before March 29, 15 2024, plaintiff must either show cause why this cause of action should not be dismissed 16 or file an amended complaint. Plaintiff has also filed a motion titled “order showing 17 cause why this action need not be dismissed and why it should remain in possession of 18 Hon. Judge Theresa L. Fricke.” Dkt. 6. For the reasons below, that motion (Dkt. 6) is 19 denied. 20 // 21 // 22 23 1 The Court will defer ruling on plaintiff’s motion to proceed IFP (Dkt. 4) until plaintiff either 24 responds to this order or files an amended complaint. 1 BACKGROUND 2 Plaintiff is a pretrial detainee currently detained at the Federal Detention Center, 3 Seatac. Dkt. 1-1. Plaintiff’s complaint, brought pursuant to 42 U.S.C. § 1983, names the 4 following defendants: American Behavioral Health Systems (ABHS); Mulmer, Director;
5 Zaun, Director; John Doe #1, private owner; John Doe #2, private owner; John Doe #3, 6 private owner; and Jessica Donyes. Id. at 6. 7 Plaintiff alleges his First, Fourth, Fifth and Fourteenth Amendment rights under 8 the United States Constitution were violated when Jessica Donyes, an employee at 9 ABHS – an inpatient rehabilitation facility where plaintiff was a patient – disclosed 10 private information about plaintiff to the “prosecutor and probation” assigned to his 11 pending criminal case. Id. at 7. Plaintiff alleges defendant Donyes made false 12 statements to the prosecutor and probation that plaintiff stated he was “pointing lasers 13 at planes in the sky.” Id. Plaintiff alleges the private information that was disclosed was 14 “used against him in Court” the following week. Id. at 13-14.
15 Plaintiff alleges defendants ABHS and “private actors” owners John Does #1-3 16 “pursuant to a custom, policy, and practice” failed to conduct proper background checks 17 prior to hiring employees such as defendants Donyes, Zaun, and Mulmur, and failed to 18 properly investigate patient complaints. Id. at 10-11. He alleges defendants ABHS and 19 “private actors” owners John Does #1-3 also failed to properly train, supervise, audit 20 and discipline defendants Donyes, Zaun, and Mulmur. Id. 21 Plaintiff alleges he filed a “grievance” against defendant Donyes for her alleged 22 disclosure of private information and that defendants ABHS, Mulmur, and Zahn 23 retaliated against him by discharging him after three weeks when he was not “clinically
24 1 ready” for discharge. Id. at 12-13. Plaintiff alleges he subsequently relapsed and had a 2 near fatal overdose approximately one month after he was discharged. Id. 3 As relief, plaintiff seeks a declaration that defendants violated his constitutional 4 rights, money damages, costs and attorney fees and such other and further relief as the
5 Court deems just and proper. Id. at 13. 6 DISCUSSION 7 The Court must dismiss the complaint of a prisoner proceeding in forma pauperis 8 “at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) 9 “fails to state a claim on which relief may be granted”’ or (c) “seeks monetary relief 10 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. 11 § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. 12 Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984), abrogated on other grounds 13 by Neitzke v. Williams, 490 U.S. 319 (1989). 14 Before the Court may dismiss the complaint as frivolous or for failure to state a
15 claim, though, it “must provide the [prisoner] with notice of the deficiencies of his or her 16 complaint and an opportunity to amend the complaint prior to dismissal.” McGuckin v. 17 Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX 18 Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see also Sparling v. Hoffman 19 Constr., Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 20 1449 (9th Cir. 1987). On the other hand, leave to amend need not be granted “where 21 the amendment would be futile or where the amended complaint would be subject to 22 dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 23
24 1 To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the 2 conduct complained of was committed by a person acting under color of state law, and 3 (2) the conduct deprived a person of a right, privilege, or immunity secured by the 4 Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981).
5 Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these 6 elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985). 7 A. Improper Defendants 8 In the complaint, plaintiff names ABHS, a rehabilitation facility, as well as the 9 owners, directors, and employees of ABHS, as defendants. Dkt. 1-1. Plaintiff has not 10 alleged facts sufficient to show these defendants are state actors acting under the color 11 of state law. Rather, based on the allegations in the complaint, it appears these 12 defendants are private actors. See Dkt. 1-1. “Generally, private persons cannot be liable 13 under section 1983 unless their actions were ‘clothed’ with governmental authority[.]” 14 Goehring v. Wright, 858 F.Supp. 989, 997 (N.D. Cal. 1994); see Peng v. Mei Chin
15 Penghu, 335 F.3d 970, 980 (9th Cir. 2003). “Merely complaining to the police does not 16 convert a private party into a state actor.” Collins v. Womancare, 878 F.2d 1145, 1155 17 (9th Cir. 1989). 18 Based on the allegations in the complaint, it appears defendants allegedly shared 19 “private information” – which plaintiff does not detail – and/or made false statements 20 about plaintiff stating he was “pointing lasers at planes in the sky” to plaintiff’s probation 21 officer and the prosecutor assigned to his pending criminal case. Dkt. 1-1. There are no 22 allegations to demonstrate that defendants are state actors or that their actions were 23 “clothed with governmental authority.”
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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 CHRISTOPHER WILLIAM HARRIS, Case No. 2:23-cv-02006-MJP-TLF 7 Plaintiff, v. ORDER TO SHOW CAUSE OR 8 AMEND THE COMPLAINT AMERICAN BEHAVIORAL HEALTH 9 SYSTEMS, et al., 10 Defendants. 11 This matter is before the Court on plaintiff’s filing of a civil rights complaint. 12 Plaintiff is unrepresented by counsel and seeks in forma pauperis (IFP) status in this 13 matter.1 Dkt. 4. Considering deficiencies in the complaint discussed below, however, the 14 undersigned will not direct service of the complaint at this time. On or before March 29, 15 2024, plaintiff must either show cause why this cause of action should not be dismissed 16 or file an amended complaint. Plaintiff has also filed a motion titled “order showing 17 cause why this action need not be dismissed and why it should remain in possession of 18 Hon. Judge Theresa L. Fricke.” Dkt. 6. For the reasons below, that motion (Dkt. 6) is 19 denied. 20 // 21 // 22 23 1 The Court will defer ruling on plaintiff’s motion to proceed IFP (Dkt. 4) until plaintiff either 24 responds to this order or files an amended complaint. 1 BACKGROUND 2 Plaintiff is a pretrial detainee currently detained at the Federal Detention Center, 3 Seatac. Dkt. 1-1. Plaintiff’s complaint, brought pursuant to 42 U.S.C. § 1983, names the 4 following defendants: American Behavioral Health Systems (ABHS); Mulmer, Director;
5 Zaun, Director; John Doe #1, private owner; John Doe #2, private owner; John Doe #3, 6 private owner; and Jessica Donyes. Id. at 6. 7 Plaintiff alleges his First, Fourth, Fifth and Fourteenth Amendment rights under 8 the United States Constitution were violated when Jessica Donyes, an employee at 9 ABHS – an inpatient rehabilitation facility where plaintiff was a patient – disclosed 10 private information about plaintiff to the “prosecutor and probation” assigned to his 11 pending criminal case. Id. at 7. Plaintiff alleges defendant Donyes made false 12 statements to the prosecutor and probation that plaintiff stated he was “pointing lasers 13 at planes in the sky.” Id. Plaintiff alleges the private information that was disclosed was 14 “used against him in Court” the following week. Id. at 13-14.
15 Plaintiff alleges defendants ABHS and “private actors” owners John Does #1-3 16 “pursuant to a custom, policy, and practice” failed to conduct proper background checks 17 prior to hiring employees such as defendants Donyes, Zaun, and Mulmur, and failed to 18 properly investigate patient complaints. Id. at 10-11. He alleges defendants ABHS and 19 “private actors” owners John Does #1-3 also failed to properly train, supervise, audit 20 and discipline defendants Donyes, Zaun, and Mulmur. Id. 21 Plaintiff alleges he filed a “grievance” against defendant Donyes for her alleged 22 disclosure of private information and that defendants ABHS, Mulmur, and Zahn 23 retaliated against him by discharging him after three weeks when he was not “clinically
24 1 ready” for discharge. Id. at 12-13. Plaintiff alleges he subsequently relapsed and had a 2 near fatal overdose approximately one month after he was discharged. Id. 3 As relief, plaintiff seeks a declaration that defendants violated his constitutional 4 rights, money damages, costs and attorney fees and such other and further relief as the
5 Court deems just and proper. Id. at 13. 6 DISCUSSION 7 The Court must dismiss the complaint of a prisoner proceeding in forma pauperis 8 “at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) 9 “fails to state a claim on which relief may be granted”’ or (c) “seeks monetary relief 10 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. 11 § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. 12 Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984), abrogated on other grounds 13 by Neitzke v. Williams, 490 U.S. 319 (1989). 14 Before the Court may dismiss the complaint as frivolous or for failure to state a
15 claim, though, it “must provide the [prisoner] with notice of the deficiencies of his or her 16 complaint and an opportunity to amend the complaint prior to dismissal.” McGuckin v. 17 Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX 18 Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see also Sparling v. Hoffman 19 Constr., Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 20 1449 (9th Cir. 1987). On the other hand, leave to amend need not be granted “where 21 the amendment would be futile or where the amended complaint would be subject to 22 dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 23
24 1 To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the 2 conduct complained of was committed by a person acting under color of state law, and 3 (2) the conduct deprived a person of a right, privilege, or immunity secured by the 4 Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981).
5 Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these 6 elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985). 7 A. Improper Defendants 8 In the complaint, plaintiff names ABHS, a rehabilitation facility, as well as the 9 owners, directors, and employees of ABHS, as defendants. Dkt. 1-1. Plaintiff has not 10 alleged facts sufficient to show these defendants are state actors acting under the color 11 of state law. Rather, based on the allegations in the complaint, it appears these 12 defendants are private actors. See Dkt. 1-1. “Generally, private persons cannot be liable 13 under section 1983 unless their actions were ‘clothed’ with governmental authority[.]” 14 Goehring v. Wright, 858 F.Supp. 989, 997 (N.D. Cal. 1994); see Peng v. Mei Chin
15 Penghu, 335 F.3d 970, 980 (9th Cir. 2003). “Merely complaining to the police does not 16 convert a private party into a state actor.” Collins v. Womancare, 878 F.2d 1145, 1155 17 (9th Cir. 1989). 18 Based on the allegations in the complaint, it appears defendants allegedly shared 19 “private information” – which plaintiff does not detail – and/or made false statements 20 about plaintiff stating he was “pointing lasers at planes in the sky” to plaintiff’s probation 21 officer and the prosecutor assigned to his pending criminal case. Dkt. 1-1. There are no 22 allegations to demonstrate that defendants are state actors or that their actions were 23 “clothed with governmental authority.”
24 1 Therefore, based on the allegations in the complaint, defendants cannot be liable 2 under § 1983 and plaintiff has failed to state a claim upon which relief can be granted. 3 B. Failure to State a Claim 4 In the complaint, plaintiff also fails to clearly allege facts that show his rights were
5 violated by the defendants. Dkt. 1-1. Even if the defendants were state actors, plaintiff 6 provides only conclusory allegations that these defendants violated his constitutional 7 rights. Plaintiff does not identify or explain how defendant Donyes’ actions violated his 8 constitutional rights. Furthermore, a § 1983 suit cannot be based on vicarious liability 9 alone, but must allege the defendant’s own conduct violated the plaintiff’s civil rights. 10 City of Canton v. Harris, 489 U.S. 378, 385-90 (1989). A supervisor may only be liable 11 “if there exists either (1) his or her personal involvement in the constitutional deprivation, 12 or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the 13 constitutional violation.” Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989) (citation 14 omitted). Plaintiff fails to allege facts to demonstrate the remaining defendants ABHS,
15 directors Mulmer and Zaun, or private owners (John Does #1-3), were personally 16 involved in or caused any alleged constitutional violation. 17 As plaintiff has not alleged facts sufficient to show a person acting under color of 18 state law violated his constitutional rights, he has failed to state a claim upon which 19 relief can be granted. See Jones v. Community Development Agency, 733 F.2d 646, 20 649 (9th Cir. 1984) (vague and mere conclusory allegations unsupported by facts are 21 not sufficient to state section 1983 claims). 22 C. “Motion for Order Showing Cause” 23
24 1 Plaintiff has also filed a motion titled “motion for order showing cause why this 2 action need not be dismissed and why it should remain in possession of Hon. Judge 3 Theresa L. Fricke.” Dkt. 6. Plaintiff notes that he has filed two previous actions in this 4 Court related to the same circumstances he challenges here but which, he argues,
5 raised different claims. See Harris v. American Behavioral Health System, No. 2:23- 6 00989-KKE, 2024 WL 69639 (W.D.Wash. Jan. 5, 2024) ; Harris v. Combs, No. 2:23-cv- 7 00988-KKE, 2024 WL 324513 (W.D. Wash. Jan. 29, 2024). Both of these prior actions 8 have been dismissed for failure to state a claim. See id. At this point, for the reasons 9 stated above, plaintiff has not filed a viable complaint in this action and the Court is 10 directing plaintiff to show cause, or file an amended complaint, addressing the identified 11 deficiencies. Accordingly, plaintiff’s request that the action should not be dismissed and 12 his suggestion that it should remain with the undersigned Judge is, at a minimum, 13 premature. Furthermore, to the extent plaintiff disagrees with and seeks to challenge 14 rulings in his other cases, such challenges should be raised in the cases where those
15 rulings were made – this case is not the proper forum for such challenges. 16 Accordingly, plaintiff’s motion (Dkt. 6), is DENIED. 17 CONCLUSION 18 Due to the deficiencies described above, the Court will not serve the complaint. If 19 plaintiff intends to pursue this action, he must either show cause why this cause of 20 action should not be dismissed or file an amended complaint to cure, if possible, the 21 deficiencies noted herein, by March 29, 2024. Within the amended complaint, plaintiff 22 must write a short, plain statement telling the Court: (1) the constitutional or statutory 23 right plaintiff believes was violated; (2) the name of the person who violated the right; (3)
24 1 exactly what the individual did or failed to do; (4) how the action or inaction of the 2 individual is connected to the violation of plaintiff’s constitutional rights; and (5) what 3 specific injury plaintiff suffered because of the individual’s conduct. See Rizzo v. Goode, 4 423 U.S. 362, 371–72, 377 (1976). Each claim for relief must be simple, concise, and
5 direct. 6 Plaintiff shall present the amended complaint on the form provided by the Court. 7 The amended complaint must be legibly rewritten or retyped in its entirety and contain 8 the same case number. It may not incorporate any part of the original complaint by 9 reference. 10 The amended complaint will act as a complete substitute for the original 11 complaint, and not as a supplement. Any fact or cause of action alleged in the original 12 complaint that is not alleged in the amended complaint is waived. Forsyth v. Humana, 13 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds, Lacey v. 14 Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).
15 The Court will screen the amended complaint to determine whether it states a 16 claim for relief cognizable under 42 U.S.C. § 1983. If the amended complaint is not 17 timely filed or fails to adequately address the issues raised herein, the undersigned will 18 recommend dismissal of this action for failure to state a claim and such dismissal may 19 count as a strike under 28 U.S.C. § 1915(g). 20 The Clerk is directed to send plaintiff the appropriate forms for filing a 42 U.S.C. 21 § 1983 civil rights complaint and for service, a copy of this Order and the Pro Se 22 Information Sheet. 23
24 1 The Clerk is further directed to re-note plaintiff’s motion to proceed in 2 forma pauperis (Dkt. 4) to March 29, 2024. 3 Dated this 29th day of February, 2024. 4
5 A 6 Theresa L. Fricke 7 United States Magistrate Judge
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