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Madsen v. United States

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

May 2, 2017

Kurt R Madsen, Plaintiff,
v.
United States of America et al, Defendants.

          ORDER TO SHOW CAUSE

          David W. Christel United States Magistrate Judge.

         Plaintiff 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).

         BACKGROUND

         Plaintiff is currently housed at the Western State Hospital and alleges his constitutional rights have been violated during his involuntary commitment.[1] Dkt. 1, 7, 9.

         On May 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 Medications).

         Plaintiff 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 “Olanzapine.” Id.

         Plaintiff 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.

         Plaintiff seeks injunctive relief and monetary damages. Dkt. 7 at 8.

         DISCUSSION

         Under 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).[2] 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).

         In 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).

         Where, 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)).

         1. Improper Defendant

         Upon 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.

         In 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 ...


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