Taylor v. Washington Department of Corrections

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:20-CV-5704-RAJ-DWC 11 Plaintiff, ORDER TO FILE AMENDED 12 v. COMPLAINT CORRECTIONS, STATE OF 15 Defendants.

16 Plaintiff Richard Lamar Taylor, proceeding pro se and in forma pauperis, filed this civil 17 rights complaint under 42 U.S.C. § 1983. Having reviewed and screened Plaintiff’s Complaint 18 under 28 U.S.C. § 1915A, the Court declines to serve the Complaint but provides Plaintiff leave 19 to file an amended pleading by September 18, 2020, to cure the deficiencies identified herein. 20 I. Background 21 Plaintiff, who is incarcerated at Coyote Ridge Corrections Center, alleges the Washington 22 State Department of Corrections (“DOC”) and the State of Washington have acted with 23 negligence in failing to provide adequate care during the Covid-19 pandemic. Dkt. 7. Plaintiff 24 1 states he was transferred with other inmates in a vehicle that did not allow for social distancing. 2 Id. He also states he suffered from Covid-19 symptoms, but was not tested. Id. 3 II. Discussion 4 Under the Prison Litigation Reform Act of 1995, the Court is required to screen

5 complaints brought by prisoners seeking relief against a governmental entity or officer or 6 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the 7 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to 8 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant 9 who is immune from such relief.” Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 10 152 F.3d 1193 (9th Cir. 1998). 11 Plaintiff’s Complaint suffers from deficiencies requiring dismissal if not corrected in an 12 amended complaint. 13 A. Improper Defendants 14 Plaintiff names only the DOC and State of Washington as Defendants in this action. See

15 Dkt. 7. The DOC and the State of Washington are not a proper defendants. Section 1983 applies 16 to the actions of “persons” acting under the color of state law. “Neither states, nor entities that 17 are arms of the state, are ‘persons’ for purposes of § 1983.” Johnson v. Washington, 2019 WL 18 5223048, at *1 (W.D. Wash. Sept. 17, 2019), report and recommendation adopted, 2019 WL 19 5213116 (W.D. Wash. Oct. 16, 2019); see also Will v. Michigan Dep’t. of State Police, 491 U.S. 20 58, 65, 71 (1989). Additionally, there is no evidence the State of Washington has waived its 21 Eleventh Amendment immunity in federal courts. Therefore, the State of Washington and the 22 DOC cannot be sued under § 1983. As Plaintiff has not named a proper defendant in this action, 23 his claims fail as a matter of law.

24 1 B. Failure to State a Claim 2 Furthermore, Plaintiff has failed to state a claim upon which relief can be granted. In 3 order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) he suffered a 4 violation of rights protected by the Constitution or created by federal statute, and (2) the

5 violation was proximately caused by a person acting under color of state law. See Crumpton v. 6 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to 7 identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 8 (1994). To satisfy the second prong, a plaintiff must allege facts showing how individually 9 named defendants caused, or personally participated in causing, the harm alleged in the 10 complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). Sweeping conclusory 11 allegations against an official are insufficient to state a claim for relief. Leer v. Murphy, 844 F.2d 12 628, 633 (9th Cir. 1988). Further, a § 1983 suit cannot be based on vicarious liability alone, but 13 must allege the defendant’s own conduct violated the plaintiff’s civil rights. City of Canton v. 14 Harris, 489 U.S. 378, 385-90 (1989).

15 In the Complaint, Plaintiff fails to state the alleged wrong-doing of any individual who is 16 acting under color of state law. See Dkt. 7. Moreover, Plaintiff has not alleged Defendants were 17 acting with deliberate indifference; rather, he alleges Defendants acted negligently. Negligence 18 does not give rise to a claim for deliberate indifference to a serious medical need. See Estelle v. 19 Gamble, 429 U.S. 97, 106 (1976). As Plaintiff has not shown he suffered a violation of his 20 constitutional rights that was caused by a person acting under color of state law, he has failed to 21 state a claim upon which relief can be granted. 22 III. Instructions to Plaintiff and the Clerk 23 If Plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file an

24 amended complaint and within the amended complaint, he must write a short, plain statement 1 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the 2 person who violated the right; (3) exactly what the individual did or failed to do; (4) how the 3 action or inaction of the individual is connected to the violation of Plaintiff’s constitutional 4 rights; and (5) what specific injury Plaintiff suffered because of the individual’s conduct. See

5 Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976). Each claim for relief must be simple, 6 concise, and direct. 7 Plaintiff shall present the amended complaint on the form provided by the Court. The 8 amended complaint must be legibly rewritten or retyped in its entirety, it should contain the same 9 case number, and it may not incorporate any part of the original complaint by reference. The 10 amended complaint will act as a complete substitute for any previously filed complaint, and not 11 as a supplement. The Court will screen the amended complaint to determine whether it contains 12 factual allegations linking each defendant to the alleged violations of Plaintiff’s rights. 13 If Plaintiff fails to file an amended complaint or fails to adequately address the issues 14 raised herein on or before September 18, 2020, the undersigned will recommend dismissal of this

15 action. 16 The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. § 1983 17 civil rights complaint. The Clerk is further directed to provide Plaintiff with copies of this Order 18 and Pro Se Instruction Sheet. 19 Dated this 17th day of August, 2020. 20 A 21 David W. Christel United States Magistrate Judge 22 23 24