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Kinney v. State

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

June 1, 2015




Plaintiff James Allen Suske Kinney filed this civil rights complaint under 42 U.S.C. § 1983 pro se and in forma pauperis. Having reviewed and screened Plaintiff’s complaint under 28 U.S.C. § 1915(e), the Court declines to serve the complaint but provides Plaintiff leave to file an amended pleading by July 1, 2015, to cure the deficiencies identified herein.


The Court will dismiss a complaint at any time if the action fails to state a claim, raises frivolous or malicious claims, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show that: (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state law. See 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 this second prong, a plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).

Plaintiff, who is currently incarcerated at Airway Heights Corrections Center (AHCC), brings this § 1983 action against the State of Washington and the Washington Department of Corrections alleging:

DOC tried to destroy evidence. Twice my evidence has never gotten to the court. DOC will destroy remaining evidence they know what I had and are continually searching for the items that will convict them. Grievance document have mostly been confiscated. I am branded a whistle blower and I under constant harassment and my family is under constant threat from Elements of DOC.

Dkt. 5. Plaintiff’s complaint suffers from deficiencies that, if not corrected in an amended complaint, require dismissal.

A. Proper Parties

Plaintiff has not sued the proper parties. Plaintiff must set forth facts describing when, where and how individually named defendants deprived him of a constitutional right. Plaintiff must allege with specificity the names of the individual persons who caused or personally participated in causing the alleged deprivation of his constitutional rights and what they have done or failed to do that resulted in the deprivation of his constitutional rights. Section 1983 authorizes assertion of a claim for relief against a “person” who acted under color of state law. A suable § 1983 “person” encompasses state and local officials sued in their personal capacities, municipal entities, and municipal officials sued in an official capacity. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).

The “Department of Corrections” is not a “person” for purposes of a section 1983 civil rights action. Also, the State of Washington is not a proper party because it is well-established that the Eleventh Amendment affords non-consenting states constitutional immunity from suit in both federal and state courts. See, e.g., Alden v. Maine, 527 U.S. 706, 748, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70–71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir.1996). Accordingly, Plaintiff may not sue the Department of Corrections or Washington State, but must name the individuals who harmed him.

Assuming that Plaintiff amends his complaint to name a particular defendant or defendants, he must also be able to allege facts sufficient to show that the particular defendant or defendants caused or personally participated in causing the deprivation of a particular protected constitutional right. Plaintiff claims only that “twice my evidence has never gotten to the court” and that he is under “constant harassment” because he is a whistle blower.

B. Access to Courts

In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the United States Supreme Court held that inmates possess a fundamental constitutional right of access to courts in order to contest the fact, duration and conditions of their confinement. Id. at 822-23. In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court explained that the “Constitution does not require that prisoners be able to conduct generalized research, ” but rather, “[t]he tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions or their confinement.” Id. at 355, 360. The Ninth Circuit has held that this right does not extend beyond the initial pleading phase. Cornett v. Donovan, 51 F.3d 894 (9th Cir. 1995). Further, this right does not require that prison officials provide affirmative assistance, but rather forbids states from “erecting barriers that impede the right of access of incarcerated persons.” Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (citing John L. v. Adams, 969 F.2d 228 [6th Cir. 1992]).

In order to establish a violation of the right of access to courts, an inmate must show actual injury. Actual injury results from “some specific instances in which an inmate was actually denied access to the courts.” Sands v. Lewis, 886 F.2d 1166, 1170-71 (9th Cir. 1989). Moreover, a prison regulation impinging on inmates’ constitutional rights, even a right of access to the courts, is valid if it is reasonably related ...

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