UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CASE NO. 2:21-cv-00991-TSZ-JRC Plaintiff, ORDER TO SHOW CAUSE OR v. AMEND PROPOSED COMPLAINT J CONATY, et al., Defendants. This matter is before the Court on plaintiff’s motion to proceed in forma pauperis (“IFP”) and proposed amended complaint under 42 U.S.C. § 1983 (Dkts. 1, 4) and on referral from the District Court. Plaintiff is incarcerated and his proposed amended complaint is subject to screening by the Court under 28 U.S.C. §§ 1915(e) and 1915A, which require dismissal of a complaint, or any portion of the complaint, that is frivolous, malicious, or fails to state a claim upon which relief can be granted. Plaintiff’s proposed amended complaint fails to state a claim against certain named defendants and contains deficiencies regarding a defendant’s address. Because an amendment does not appear to be futile, the Court will grant plaintiff another opportunity to amend his proposed complaint to correct the deficiencies set forth herein. If plaintiff chooses to amend his proposed complaint, he must file his amended proposed complaint on the Court’s form, on or before November 12, 2021. Failure to do so or to comply with this Order will result in the undersigned recommending dismissal of this matter without
prejudice. Finally, because it does not appear that plaintiff has presented this Court with a viable claim for relief, the Court declines to rule on his IFP motion at this time. Instead, the Clerk shall renote the IFP motion for the Court’s consideration on November 12, 2021. Plaintiff, who is incarcerated at King County Maleng Regional Justice Center, initiated this matter on July 22, 2021, by filing the IFP motion and his proposed complaint. Dkt. 1. On August 16, 2021, this Court ordered plaintiff to show cause or amend his complaint due to deficiencies in the complaint. See Dkt. 3. Plaintiff filed his proposed amended complaint on
September 1, 2021. Dkt. 4. Plaintiff named the City of Kent, the County of King, and the State of Washington as defendants in the caption. See Id. at 1. Plaintiff also named Doug Whitley from the Kent Police Department, and Jay Conaty, who plaintiff alleges is a federal officer, as defendants in the complaint. Id. at 3. Plaintiff seeks to bring one claim of excessive force under the Fourteenth Amendment. Id. at 4. Plaintiff appears to allege that on October 23, 2020, defendant Conaty rammed a SUV into a parked vehicle with plaintiff inside. See Dkt. 4 at 5. Plaintiff alleges that arresting officer Doug Whitley “observed” defendant Conaty ram plaintiff’s vehicle. Id. Plaintiff alleges that he suffered substantial back injuries as a result of the collision. Id. Plaintiff seeks money damages. Id. at 6. I. Legal Principles Under the Prison Litigation Reform Act of 1995 (“PLRA”), the Court is required to
screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998). To state a claim upon which relief may be granted, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” “in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’” Fed. R.
Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary, “[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A court must accept as true all factual allegations—but not legal conclusions—when reviewing whether a complaint survives a motion to dismiss under Rule 12(b)(6). See Iqbal, 556 U.S. at 678. When a plaintiff is proceeding pro se, this Court must “‘construe the pleadings liberally and . . . afford the [plaintiff] the benefit of any doubt.’” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (internal citation omitted). The claims will be dismissed only where it “‘appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (internal citation
omitted). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must sufficiently allege (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to “identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). To satisfy the second step, a plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).
II. Excessive Force Claim Plaintiff states that his claim is for “excessive force” under the Fourteenth Amendment based on defendant Conaty’s ramming of plaintiff’s vehicle. Dkt. 4, at 4–5. Regardless of whether this claim proceeds as a Fourteenth Amendment or a Fourth Amendment claim for excessive force, plaintiff fails to state a claim against the City of Kent, the County of King, and the State of Washington, because he does not state facts regarding any personal actions by these named defendants. Regarding Doug Whitley, plaintiff has not made clear what unconstitutional conduct this defendant engaged in. Moreover, plaintiff has not provided sufficient information to identify defendant Conaty in the event this Court orders him to be served. A. State of Washington Plaintiff listed the State of Washington in the caption of his proposed amended complaint. See Dkt. 4, at 1. However, it is not clear whether plaintiff actually intends to bring a claim against the State. If he does, plaintiff is reminded that “[t]he Eleventh Amendment has been authoritatively construed to deprive federal courts of jurisdiction over suits by private
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CASE NO. 2:21-cv-00991-TSZ-JRC Plaintiff, ORDER TO SHOW CAUSE OR v. AMEND PROPOSED COMPLAINT J CONATY, et al., Defendants. This matter is before the Court on plaintiff’s motion to proceed in forma pauperis (“IFP”) and proposed amended complaint under 42 U.S.C. § 1983 (Dkts. 1, 4) and on referral from the District Court. Plaintiff is incarcerated and his proposed amended complaint is subject to screening by the Court under 28 U.S.C. §§ 1915(e) and 1915A, which require dismissal of a complaint, or any portion of the complaint, that is frivolous, malicious, or fails to state a claim upon which relief can be granted. Plaintiff’s proposed amended complaint fails to state a claim against certain named defendants and contains deficiencies regarding a defendant’s address. Because an amendment does not appear to be futile, the Court will grant plaintiff another opportunity to amend his proposed complaint to correct the deficiencies set forth herein. If plaintiff chooses to amend his proposed complaint, he must file his amended proposed complaint on the Court’s form, on or before November 12, 2021. Failure to do so or to comply with this Order will result in the undersigned recommending dismissal of this matter without
prejudice. Finally, because it does not appear that plaintiff has presented this Court with a viable claim for relief, the Court declines to rule on his IFP motion at this time. Instead, the Clerk shall renote the IFP motion for the Court’s consideration on November 12, 2021. Plaintiff, who is incarcerated at King County Maleng Regional Justice Center, initiated this matter on July 22, 2021, by filing the IFP motion and his proposed complaint. Dkt. 1. On August 16, 2021, this Court ordered plaintiff to show cause or amend his complaint due to deficiencies in the complaint. See Dkt. 3. Plaintiff filed his proposed amended complaint on
September 1, 2021. Dkt. 4. Plaintiff named the City of Kent, the County of King, and the State of Washington as defendants in the caption. See Id. at 1. Plaintiff also named Doug Whitley from the Kent Police Department, and Jay Conaty, who plaintiff alleges is a federal officer, as defendants in the complaint. Id. at 3. Plaintiff seeks to bring one claim of excessive force under the Fourteenth Amendment. Id. at 4. Plaintiff appears to allege that on October 23, 2020, defendant Conaty rammed a SUV into a parked vehicle with plaintiff inside. See Dkt. 4 at 5. Plaintiff alleges that arresting officer Doug Whitley “observed” defendant Conaty ram plaintiff’s vehicle. Id. Plaintiff alleges that he suffered substantial back injuries as a result of the collision. Id. Plaintiff seeks money damages. Id. at 6. I. Legal Principles Under the Prison Litigation Reform Act of 1995 (“PLRA”), the Court is required to
screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998). To state a claim upon which relief may be granted, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” “in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’” Fed. R.
Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary, “[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A court must accept as true all factual allegations—but not legal conclusions—when reviewing whether a complaint survives a motion to dismiss under Rule 12(b)(6). See Iqbal, 556 U.S. at 678. When a plaintiff is proceeding pro se, this Court must “‘construe the pleadings liberally and . . . afford the [plaintiff] the benefit of any doubt.’” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (internal citation omitted). The claims will be dismissed only where it “‘appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (internal citation
omitted). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must sufficiently allege (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to “identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). To satisfy the second step, a plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).
II. Excessive Force Claim Plaintiff states that his claim is for “excessive force” under the Fourteenth Amendment based on defendant Conaty’s ramming of plaintiff’s vehicle. Dkt. 4, at 4–5. Regardless of whether this claim proceeds as a Fourteenth Amendment or a Fourth Amendment claim for excessive force, plaintiff fails to state a claim against the City of Kent, the County of King, and the State of Washington, because he does not state facts regarding any personal actions by these named defendants. Regarding Doug Whitley, plaintiff has not made clear what unconstitutional conduct this defendant engaged in. Moreover, plaintiff has not provided sufficient information to identify defendant Conaty in the event this Court orders him to be served. A. State of Washington Plaintiff listed the State of Washington in the caption of his proposed amended complaint. See Dkt. 4, at 1. However, it is not clear whether plaintiff actually intends to bring a claim against the State. If he does, plaintiff is reminded that “[t]he Eleventh Amendment has been authoritatively construed to deprive federal courts of jurisdiction over suits by private
parties against unconsenting States.” Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 952 (9th Cir. 2008) (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996)). The State’s immunity also applies to suits brought by its own citizens. See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446 (2004). However, suits seeking damages against a state official in their personal capacity are not barred by the Eleventh Amendment. See Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988). Here, plaintiff listed the State of Washington in the caption of his complaint but did not otherwise mention the State or a state official in his factual allegations. Therefore, plaintiff failed to state a claim against the State of Washington.
B. City of Kent and King County To the extent that plaintiff seeks to bring a claim against the City of Kent or King County, local government entities can be held liable under § 1983 if the allegedly unconstitutional actions of its employees are alleged to have been taken pursuant to a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Alternatively, local government entities also can be liable for adopting an unconstitutional custom, even if such custom has not received formal approval through the body’s official decision-making channels. Id. at 690–91. But a local government entity cannot be held liable under § 1983 simply because it employs someone who has allegedly acted unlawfully. Id. at 691, 694. Here, plaintiff fails to allege that the City of Kent or King County had a policy or custom that was the “moving force” behind the alleged deprivation of his constitutional rights. Bd. of Cnty. Comm’rs of Bryan Cnty., Oklahoma v. Brown, 520 U.S. 397, 400 (1997). Plaintiff states
that “Kent police officer Doug Whitley . . . observed officer J. Conaty acting on Department policy, [i]ntentional [sic] with excessive force to cause [plaintiff] substantial bodily harm.” Dkt. 4, at 5. However, it is not clear what policy plaintiff is referring to and what department the policy belongs to. Such general allegations fall short of pleading a viable Monell claim, as they are vague, conclusory, and speculative. See Iqbal, 556 U.S. at 678; Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636–37 (9th Cir. 2012) (applying Iqbal pleading standards to Monell claims). Therefore, the Court concludes that plaintiff has failed to state a claim against the City of Kent and King County. C. Detective Doug Whitley
Plaintiff named detective Doug Whitley as a defendant, but plaintiff does not state what actions defendant Whitley took that violated plaintiff’s constitutional rights. In order to obtain relief against a defendant under 42 U.S.C. § 1983, a plaintiff must prove that the particular defendant has caused or personally participated in causing the deprivation of a particular protected constitutional right. Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). To be liable for “causing” the deprivation of a constitutional right, each defendant must commit an affirmative act, or omit to perform an act, that he or she is legally required to do, and which causes the plaintiff's deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Here, plaintiff only alleges that defendant Whitley “observed” defendant Conaty ram the SUV into plaintiff’s vehicle. Dkt. 4, at 5. Plaintiff does not state how defendant Whitley’s action of observing deprived plaintiff of a constitutional right. Therefore, plaintiff has failed to state a claim against defendant Whitley. D. Officer Jay Conaty
Plaintiff appears to have sufficiently stated a claim against defendant Jay Conaty. However, plaintiff bears the burden of providing accurate and sufficient information to effect service of the summons and complaint. When a pro se plaintiff fails to provide the Court with accurate and sufficient information to effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved defendant is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421–22 (9th Cir. 1994) (quoting Puett v. Blanford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Here, plaintiff named “Jay Conaty” as a defendant, which he also refers to as “J. Conaty,” but did not provide an address or other identifying information aside from “Federal officer South
King County Taskforce.” Dkt. 4, at 3. If plaintiff cannot identify the address, plaintiff is ordered to provide additional information that will identify the defendant. Plaintiff is also ordered to clarify defendant’s actual name. Due to the deficiencies described above, unless plaintiff shows cause or amends the proposed complaint, the Court will recommend dismissal of the proposed amended complaint without prejudice. If plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file a second amended proposed complaint and within the second amended proposed complaint, he must write a short, plain statement telling the Court: (1) the constitutional right plaintiff believes was violated; (2) the name or names of the person or persons who violated the right; (3) exactly what each individual or entity did or failed to do; (4) how the action or inaction of each individual or entity is connected to the violation of plaintiff’s constitutional rights; and (5) what specific injury plaintiff suffered because of the individuals’ conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976). Plaintiff is also to provide enough identifying information for
each defendant so that service can be effectuated. Plaintiff shall present the second amended proposed complaint on the form provided by the Court. The second amended proposed complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it should contain the same case number, and it may not incorporate any part of the original proposed complaint by reference. The second amended proposed complaint will act as a complete substitute for the previous proposed complaints, and not as a supplement. An amended proposed complaint supersedes all previous complaints. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part on other grounds, Lacey v. Maricopa
County, 693 F.3d 896 (9th Cir. 2012). Therefore, the amended proposed complaint must be complete in itself, and all facts and causes of action alleged in the original proposed complaint that are not alleged in the amended proposed complaint are waived. Forsyth, 114 F.3d at 1474. The Court will screen the second amended proposed complaint to determine whether it contains factual allegations linking each defendant to the alleged violations of plaintiff’s rights. If plaintiff fails to file an amended proposed complaint or fails to adequately address the issues raised herein on or before November 12, 2021, the undersigned will recommend dismissal of this action pursuant to 28 U.S.C. § 1915. The Clerk is directed to send plaintiff the appropriate forms for an incarcerated person to file a 42 U.S.C. § 1983 civil rights complaint and for service. The Clerk is further directed to renote the motion to proceed in forma pauperis (Dkt. 1) for November 12, 2021. Dated this 15th day of October, 2021. A J. Richard Creatura Chief United States Magistrate Judge