United States District Court, W.D. Washington
ORDER GRANTING LEAVE TO FILE AMENDED COMPLAINT TO
CURE DEFICIENCES OR TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE
DISMISSED PURSUANT TO FED. R. CIV. P. 8(a).
Theresa L. Fricke United States Magistrate Judge
December 13, 2016, the Court declined to serve pro
se plaintiff Gregory Tyree Brown's civil rights
complaint (Dkt. 4) because of several noted deficiencies.
Dkt. 5. However, the Court granted Brown leave to file an
amended complaint, and an extension of time within which to
do so, to cure the deficiencies or show cause why his
complaint should not be dismissed. Dkt. 7. Brown filed an
84-page amended complaint, naming 58 defendants and
“John/Jane Does I through CI”, on February 13,
2017. Dkt. 8. Because Brown's first amended complaint was
also deficient and many of the claims he asserted appeared to
be untimely, the Court provided Brown with a second
opportunity to cure the noted defects. Dkt. 10. The Court
specifically directed Brown to limit his second amended
complaint to 20 pages. Id., p. 12.
2, 2017, Brown filed a second amended complaint. Dkt. 14.
This version is 54 pages long and names 76 defendants. Many
allegations contained in the complaint concern acts and
omissions that apparently occurred outside of the applicable
three-year statute of limitations. Brown has not shown that
each of the allegedly operative decisions, acts, or omissions
that constitute “discrete acts” occurred during
within the three-year statute of limitations. See RK
Ventures Inc., v. City of Seattle, 307 F.3d 1045, 1061
(9th Cir. 2002) (discrete acts, even when they are
“related and similar to” more recent acts, are
not actionable if the discrete acts occurred outside the
statute of limitations period).
is directed to file a third amended complaint containing a
short, plain statement of the allegations concerning only
those claims potentially within the statute of limitations
and naming only those defendants who participated in or
caused a violation of his constitutional rights within the
statute of limitations. The Court also admonishes Brown that
his third amended complaint shall not be as lengthy, and he
must make every effort to describe the factual allegations in
plain and clear language, as required by Fed.R.Civ.P. 8(a).
If he fails to do so, the complaint may be dismissed pursuant
to 28 U.S.C. §§ 1915(e)(2), 1915A(a), (b)(1),
because it fails to comply with Fed.R.Civ.P. 8(a) and because
it fails to state a claim upon which relief may be granted.
This dismissal may count as a strike under 28 U.S.C. §
1915(g). Brown must file his third amended complaint by
September 11, 2017.
purports to sue 76 employees of the Department of Corrections
(“DOC”) for conduct allegedly occurring from 1984
to the present in at least four correctional institutions
(Clallam Bay Corrections Center, Washington State
Penitentiary, Washington State Reformatory, and Airway
Heights Corrections Center). In paragraphs 44-107 and
165-172, Brown claims he was denied access to courts, was
retaliated against, had false grievances filed against him,
had his magazines and mail confiscated, and was wrongfully
transferred. All of these events occurred between 1984 and
2013 and according to Brown inflicted “constant and
prolonged fear.” Id., ¶ 107. In
paragraphs 165-172, Brown asserts that between July 1983 and
December 2017, over 700, 000 grievances were filed by all
prisoners but no staff misconduct was ever found and this
resulted in a “culture of fear and terror for
prisoners.” Id., ¶ 172.
allegations set forth in paragraphs 112-164 appear to be
timely and may state sufficient facts to constitute a claim
under 42 U.S.C. § 1983. For example, Brown alleges that
his legal mail was wrongfully confiscated in March 2014; he
was denied access to the courts in May 2014; he was
wrongfully infracted for refusing to participate in an
approved education program in August 2014; his religious
items were wrongfully confiscated in November 2015; his
library access was denied in January 2016; the law library
was deficient in September 2015; and he received retaliatory
demerits in March 2014. Dkt. 14, ¶¶ 112-164.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
may dismiss a complaint as frivolous, and that dismissal may
count as a strike under 28 U.S.C. § 1915(g), even when
the prisoner paid the filing fee as Brown did. Belanus v.
Clark, 796 F.3d 1021, 1028 (9th Cir. 2015).
sued under § 1983. To state a claim under § 1983, a
plaintiff must allege facts showing (1) the conduct about
which he complains was committed by a person acting under the
color of state law; and (2) the conduct deprived him of a
federal constitutional or statutory right. Wood v.
Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A
plaintiff must allege that he suffered a specific injury as a
result of the conduct of a particular defendant, and he must
allege an affirmative link between the injury and the conduct
of that defendant. Rizzo v. Goode, 423 U.S. 362,
371-72, 377 (1976). Sweeping, conclusory allegations against
an official are insufficient to state a claim for relief.
Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
Further, a § 1983 suit cannot be based on vicarious
liability alone, but must allege the defendant's own
conduct violated the plaintiff's civil rights. City
of Canton v. Harris, 489 U.S. 378, 385-90 (1989).
Rule 8(a)(2) of the Federal Rules of Civil Procedure
“requires a complaint to include a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007)
(citing Conley v. Gibson, 355 U.S. 41 (1957)). The
complaint must include more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555-557.
Civil Rights Act, 42 U.S.C. § 1983, contains no statute
of limitations. As such, the statute of limitations from the
state cause of action most like a civil rights act is used.
In Washington, a plaintiff has three years to file an action.
Rose v. Rinaldi, 654 F.2d 546 (9th Cir. 1981); RCW
4.16.080(2). Federal law determines when a civil rights claim
accrues. Tworivers v. Lewis, 174 F.3d 987, 991 (9th
Cir. 1999). A claim accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the
action. Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.
1996); see also Knox v. Davis, 260 F.3d 1009, 1013
(9th Cir. 2001) (quoting Tworivers, 174 F.3d at
992). The proper focus is upon the time of the discriminatory
acts, not upon the time at which the consequences of the acts
became most painful. Abramson v. Univ. of Hawaii,
594 F.2d 202, 209 (9th Cir. 1979).
filed this action on November 21, 2016. Therefore,
claims which accrued before November 21, 2013 are
time-barred. It is clear from the face of
Brown's amended complaint that he knew or had reason to
know of the alleged injuries which form the basis of the
claims identified in ¶¶ 44-107 occurred well before
November 21, ...