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Latham v. Bauer

United States District Court, W.D. Washington, at Tacoma

April 20, 2015

DONTRAIL MONIQUE LATHAM, Plaintiff,
v.
SUSAN BAUER, FORMER FIRM, COWLITZ COUNTY PROSECUTORS OFFICE, Defendants.

ORDER TO FILE AMENDED COMPLAINT

J. RICHARD CREATURA, Magistrate Judge.

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR1, MJR3 and MJR4.

Currently before the Court is plaintiff's proposed complaint ( see Dkt. 4). Under the Prison Litigation Reform Act of 1995, the Court is required to screen a prisoner's complaint seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court may dismiss for failure to state a claim or if a defendant is immune from suit. See 28 U.S.C. 1915A(b).

Plaintiff has not named a defendant against whom he can maintain a civil rights action. Plaintiff names a Susan Bauer who is a Cowlitz County Assistant Prosecutor ( see Dkt. 1-1). Plaintiff also names, "Former Firm" and the Cowlitz County Prosecutor's Office ( see Dkt.1-1). Plaintiff alleges that defendants violated his Eighth Amendment rights by imposing an excessive sentence ( id. ).

42 U.S.C. § 1983 applies to actions of "persons" acting under color of state law. Neither "Former Firm, " nor the Cowlitz County Prosecutor's Office are "persons." Municipalities, however, are subject to suit under § 1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978). "In order to bring an appropriate action challenging the actions, policies or customs of a local governmental unit, a plaintiff must name the county or city itself as a party to the action, and not the particular municipal department or facility where the alleged violation occurred." Bradford v. City of Seattle, 557 F.Supp.2d 1189, 1207 (W.D. Wash. 2008) (holding that the Seattle Police Department is not a legal entity capable of being sued under § 1983). Thus, the proper defendant in this action would be Cowlitz County, not the Cowlitz County Prosecutor's Office.

Plaintiff also names an assistant prosecutor, Susan Bauer, as a defendant (Dkt. 1-1). Prosecutors are entitled to absolute immunity from liability for damages under § 1983. Imbler v. Pachtman, 424 U.S. 409, 427 (1976). If the prosecutor acts as an advocate "in initiating a prosecution and in presenting the State's case, '" absolute immunity is warranted. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir. 1984) ( quoting Imbler, 424 U.S. at 430-31). Prosecutorial immunity extends to the process of plea bargaining as an integral part of the judicial process. See Miller v. Barilla, 549 F.2d 648, 649 n. 3 (9th Cir. 1977). Accordingly, plaintiff cannot maintain his action against defendant Bauer.

Rather than dismissing the action, plaintiff should be given the opportunity to cure the defects in his filing if he believes he can state a cause of action. According, the Court orders plaintiff to submit an amended complaint on or before May 29, 2015. The amended complaint will act as a complete substitute for the original and not as a supplement. Plaintiff's failure to comply with this order or failure to cure the defects in his original complaint will result in a Report and Recommendation that this action be dismissed.


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