United States District Court, W.D. Washington, Seattle
SCOTT C. BOLTON, Plaintiff,
KING COUNTY CORRECTIONS, et al., Defendants.
ORDER DECLINING TO SERVE AND GRANTING LEAVE TO
P. DONOHUE Chief United States Magistrate Judge.
Scott C. Bolton is currently confined at the King County
Jail. Proceeding pro se and in forma
pauperis, he filed a 42 U.S.C. § 1983 civil rights
complaint against the King County Correctional Facility
(“KCCF”), KCCF Classifications Officer
“John Doe, ” and the Director of the KCCF.
See Dkt. 1-1. Having reviewed plaintiff's
complaint, the Court finds and ORDERS:
Plaintiff alleges that on February 3, 2017, a classifications
officer admitted him into the “Trusty Inmate Worker
Program.” Dkt. 1-1 at 3. He alleges that on February 4,
2017, a different classifications officer, the one named as a
John Doe defendant in this action, revoked his admission into
the program. Id. Plaintiff claims that the
revocation was retaliatory and discriminatory. Id.
As relief, he asks the Court to “correct this
discriminatory act and its retaliatory concealment.”
Once a complaint is filed in forma pauperis, the
Court must dismiss it prior to service if it “fails to
state a claim on which relief can be granted.” 28
U.S.C. § 1915(e)(2)(b)(ii); see Talley v.
Jackson, 2015 WL 3796339, at *1 (W.D. Wash. June 18,
2015) (citations omitted). To avoid dismissal, 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, 664 (2009). The
factual allegations must be “enough to raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
complaint may be dismissed if it lacks a cognizable legal
theory or states insufficient facts to support a cognizable
legal theory. Zixiang v. Kerry, 710 F.3d 995, 999
(9th Cir. 2013).
Court holds pro se plaintiffs to less stringent
pleading standards than represented plaintiffs and liberally
construes a pro se complaint in the light most
favorable to the plaintiff. Erickson v. Pardus, 551
U.S. 89, 93 (2007). Nevertheless, § 1915(e) “not
only permits but requires a district court to dismiss an in
forma pauperis complaint that fails to state a claim.”
Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000)
(en banc). When dismissing a complaint under § 1915(e),
the Court gives pro se plaintiffs leave to amend
unless “it is absolutely clear that the deficiencies of
the complaint could not be cured by amendment.”
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
sustain a § 1983 civil rights claim, plaintiff must show
(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 or federal law. West v. Atkins, 487
U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d
1418, 1420 (9th Cir. 1991). To satisfy the second prong,
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).
Having screened plaintiff's complaint, the Court has
identified the following deficiencies:
a. The KCCF is an entity of King County and, as such, is not
a proper defendant in this action. See Nolan v. Snohomish
Cnty., 59 Wn.App. 876, 883, 802 P.2d 792, 796
(Wash.Ct.App. 1990) (“[I]n a legal action involving a
county, the county itself is the only legal entity capable of
suing and being sued.”). Plaintiff may sue King County
as a “person” under § 1983. Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S.
658, 691-94 (1978). However, King County cannot be held
liable under § 1983 solely because it employs a
tortfeasor. Id. A plaintiff seeking to impose
liability on King County under § 1983 must identify a
municipal “policy” or “custom” that
caused his or her injury. Bd. of the Cnty. Comm'rs of
Bryant Cnty. v. Brown, 520 U.S. 397, 403 (1997) (citing
Monell, 436 U.S. at 694). Plaintiff does not allege
that any King County policy or custom caused him injury.
b. Plaintiff names the KCCF Director as a defendant in this
action but he does not allege any facts regarding this
defendant. The KCCF Director cannot be held liable simply
because he is John Doe's supervisor. Rather, to proceed
against the KCCF Director, plaintiff must allege facts
showing that he caused or personally participated in causing
the harm alleged in the complaint.
c. Plaintiff fails to allege sufficient facts to state a
First Amendment retaliation claim against John Doe. His
conclusory claim that John Doe retaliated against him is
insufficient. If plaintiff files an amended complaint against
John Doe, any retaliation claim will be screened under the
“Within the prison context, a viable claim of First
Amendment retaliation entails five basic elements: (1) An
assertion that a state actor took some adverse action against
an inmate (2) because of (3) that prisoner's protected
conduct, and that such action (4) chilled the inmate's
exercise of his First Amendment rights, and (5) the action
did not reasonably advance a legitimate correctional
goal.” Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005). “The prisoner must show that
the type of activity in which he was engaged was
constitutionally protected, that the protected conduct was a
substantial or motivating factor for the alleged retaliatory
action, and that the retaliatory action advanced no
legitimate penological interest.” Quiroz v.
Horel, 85 F.Supp.3d 1115, 1124 (N.D. Cal. 2015) (citing
Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir.
1997)); see also Pratt v. Rowland, 65 F.3d 802, 806
(9th Cir. 1995) (plaintiff bears burden of pleading and
proving the absence of legitimate correctional goals for the
conduct of which he complains). Additionally, “a
plaintiff who fails to allege a chilling effect may still
state a claim if he alleges he suffered some other
harm.” Brodheim v. Cry, 584 F.3d 1262, 1269
(9th Cir. 2009).
d. Plaintiff fails to allege sufficient facts to state a
discrimination claim against John Doe. Plaintiff does not
allege the basis for the discrimination, i.e., why John Doe
discriminated against him. “Prisoners are protected
under the Equal Protection Clause of the Fourteenth Amendment
from invidious discrimination based on race.” Wolff
v. McDonnell, 418 U.S. 539, 556 (1974) (citing Lee
v. Washington, 390 U.S. 333 (1968)). But given the lack
of any specific factual allegations, the Court cannot say
that plaintiff alleges a valid discrimination claim under
Based on the forgoing, the Court DECLINES to serve
plaintiff's complaint, but GRANTS him leave to file an
amended complaint curing the above-noted deficiencies within
30 days after the date this Order is signed. The amended
complaint must carry the same case number as this one and
must be filed on the appropriate form, a copy of which will
be sent with this Order. If no amended complaint is timely
filed or if plaintiff files an amended complaint that fails
to correct the deficiencies identified above, the Court may
recommend that this action be dismissed under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief may be granted.
is advised that an amended pleading operates as a
complete substitute for an original pleading.
See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th
Cir. 1992). Thus, any second amended complaint must clearly
identify the defendant(s), the constitutional or federal
statutory claim(s) asserted, the specific ...