United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE
W. Christel United States Magistrate Judge.
Kurt R. Madsen, proceeding pro se and in forma
pauperis, filed this civil rights complaint under 42
U.S.C. § 1983. Having reviewed Plaintiff's
Complaint, the Court declines to serve the Complaint but
provides Plaintiff leave to file an amended pleading by June
2, 2017, to cure the deficiencies identified herein. The
Court also denies Plaintiff's Motion for Service of
Summons and Complaint (Dkt. 9).
is currently housed at the Western State Hospital and alleges
his constitutional rights have been violated during his
involuntary commitment. Dkt. 1, 7, 9.
26, 2013, Plaintiff alleges he was released from his sentence
which he was wrongfully convicted. Id. at 7. On July
29, 2014, Plaintiff alleges he was arrested on a warrant by
the United States Marshals, which was a false claim Plaintiff
had escaped from community custody. Id. at 7. Based
on the proposed motion for injunction filed with
Plaintiff's Complaint (Dkt. 1-3), it appears Plaintiff
was charged with three counts of escape from community
custody and then involuntarily committed to Western State
Hospital as a pretrial detainee, awaiting trial. Dkt. 1-3
(King County Superior Court Order on Motion for Involuntary
alleges he was ordered to take an unknown medication by
non-party Dr. Morrison. Dkt. 7 at 6. Plaintiff alleges Dr.
Morrison is falsely claiming Plaintiff needs hospitalization.
Id. at 7. On March 5, 2017, Plaintiff alleges he was
strapped down to a bed and injected by an unknown substance
for eight hours. Id. at 7. Since March 5, 2017,
Plaintiff alleges he has had to take five milligrams of
alleges he is being involuntarily medicated with “mind
altering drugs” in amounts which exceed Federal Drug
Administration approval. Dkt. 7 at 3. Plaintiff alleges that
he was denied access to the website uscode.house.gov and
access to a competent computer. Dkt. 7 at 1. Plaintiff
alleges he defended himself from attack with his bare hands.
Id. at 5-8.
seeks injunctive relief and monetary damages. Dkt. 7 at 8.
the Prison Litigation Reform Act of 1995, 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).
order to state a claim for relief under 42 U.S.C. §
1983, a 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 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 the 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).
as here, exhibits are attached to a complaint, the exhibits
are deemed part of the complaint for all purposes, including
for purposes of determining the sufficiency of the
plaintiff's claims. See Fed.R.Civ.P. 10(c); 5A
Wright & Miller, Federal Practice and Procedure:
Civil 3d § 1327, at 443-44 (2002). Moreover, if an
exhibit attached to a complaint contradicts an assertion in
the complaint and reveals information that prohibits recovery
as a matter of law, the information provided in the exhibit
supersedes the allegation in the complaint. Wilson v.
Fitter, 2009 WL 6908049, at *2 (C.D. Cal. Nov. 5, 2009)
report and recommendation adopted, 2010 WL 3893992
(C.D. Cal. Sept. 30, 2010) (citing Riggins v.
Walter, 279 F.3d 422, 425-26 (7th Cir. 1995) (affirming
dismissal of prisoner's § 1983 claims where
information in attached exhibit contradicted allegation of
complaint); Hudson v. Phillipson, 2008 WL 356884, *3
(W.D.Mich. Feb.7, 2008) (dismissing prisoner's §
1983 claims where information in attached exhibits conflicted
with allegations of complaint)).
review of Plaintiff's Complaint, it does not appear he
has named a viable defendant. Certain persons and entities
are not subject to suit under 42 U.S.C. § 1983. This
includes Defendant State of Washington. States are not
persons for purposes of § 1983. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 69 (1997);
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989); Doe v. Lawrence Livermore Nat'l
Lab., 131 F.3d 836, 839 (9th Cir. 1997); Hale v.
Arizona, 993 F.2d 1387, 1398 (9th Cir. 1993) (en banc);
Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320,
1327 (9th Cir. 1991). See Jackson v. Arizona, 885
F.2d 639, 641 (9th Cir. 1989), superseded by statute on
other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (en banc). Therefore, any claims
against the State of Washington are subject to dismissal
pursuant to 28 U.S.C. § 1915(e)(2)(B) unless Plaintiff
can show cause why they should not be dismissed.
addition, Plaintiff names the United States of America as a
Defendant. Dkt. 7. The basis for Plaintiff's allegations
against the United States are unclear. However,
Bivens actions do not lie against the United States,
agencies of the United States, or federal agents in their
official capacity. See FDIC v. Meyer, 510 U.S. 471,
486 (1994); Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). And while the
Federal Tort Claim Act allows federal inmates to sue the
United States for injuries sustained while incarcerated,
see28 U.S.C. § 2674, Plaintiff is
currently housed at Western State Hospital, a facility run by
the State of Washington, and he alleges no facts supporting a
claim against the United ...