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Brown v. Morgan

United States District Court, W.D. Washington

August 11, 2017

RICHARD MORGAN, et al., Defendants.


          Theresa L. Fricke United States Magistrate Judge

         On 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.

         On May 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).

         Brown 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.


         Brown 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.

         The 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.


         The 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).

         A court 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).

         Brown 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).

         Additionally, 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.

         The 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).

         Brown 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 ΒΆΒΆ 44-107 occurred well before November 21, ...

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