United States District Court, W.D. Washington
ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT
Theresa L. Fricke United States Magistrate Judge
Gary Casterlow-Bey, proceeding pro se and in
forma pauperis, filed a proposed civil rights complaint.
The Court declines to serve the complaint because Mr.
Casterlow-Bey has failed to state a claim for relief under 42
U.S.C. § 1983. However, the Court will give Mr.
Casterlow-Bey an opportunity to show cause why his complaint
should not be dismissed or to file an amended complaint to
cure, if possible, the deficiencies noted herein.
Casterlow-Bey is suing his public defender, Andrea Jarmon,
and the Department of Assigned Counsel (“DAC”)
for alleged discrimination, slander, libel, and assault.
First, the complaint Mr. Casterlow-Bey filed is deficient
because the allegations flow from Ms. Jarmon's
representation of Mr. Casterlow-Bey as his public defender
within the scope of her traditional function. Second, the
complaint is deficient because the DAC is not a
“person” and is therefore an improper defendant
to be sued under § 1983.
Casterlow-Bey states that he is disabled. He asserts that due
to his ex-felon status, Ms. Jarmon “refused to pursue
medical documentation to establish before the court [his]
medical condition.” Dkt. 1-1, p. 2. Ms. Jarmon
allegedly stated to Mr. Casterlow-Bey that a jury would not
believe him, and that he would never win a case in court
because “a police officer's credibility always
trumps a liar, ex-convict in a wheelchair.”
Id. Furthermore, Mr. Casterlow-Bey alleges that Ms.
Jarmon made sexual advances on him. She allegedly wrote her
phone number on a piece of paper and winked at him. Dkt. 1-1,
p. 3. Mr. Casterlow-Bey fears that Ms. Jarmon will use her
connections and associations within the Pierce County law
enforcement community to force him to take a plea deal
because he refuses her sexual advances. Id.
Casterlow-Bey's complaint fails to state a cognizable
claim under § 1983. To state a claim under 42 U.S.C.
§ 1983, a complaint must allege: (i) the conduct
complained of was committed by a person acting under color of
state law and (ii) the conduct deprived a person of a right,
privilege, or immunity secured by the Constitution or laws of
the United States. Parratt v. Taylor, 451 U.S. 527,
535 (1981), overruled on other grounds, Daniels v.
Williams, 474 U.S. 327 (1986). Section 1983 is the
appropriate avenue to remedy an alleged wrong only if both of
these elements are present. Haygood v. Younger, 769
F.2d 1350, 1354 (9th Cir. 1985).
Casterlow-Bey has not met the first prong. “[A] lawyer
representing a client is not, by virtue of being an officer
of the court, a state actor ‘under color of state
law' within the meaning of § 1983.” Polk
County v. Dodson, 454 U.S. 312, 318 (1981). A state
public defender performing traditional lawyer functions is
not a state actor. Polk County, 454 U.S. at 324-25;
Miranda v. Clark County, 319 F.3d 465, 468
(9th Cir. 2002). Here, Mr. Casterlow-Bey's
allegations relate to Ms. Jarmon's traditional functions
as a public defender. The acts alleged by the plaintiff flow
from Ms. Jarmon's legal representation in Mr.
Casterlow-Bey's case, and therefore she is not a state
actor and cannot be sued under § 1983.
Mr. Casterlow-Bey also names the DAC as a defendant, but this
entity is not a proper defendant in this action. In order to
obtain relief against a defendant under 42 U.S.C. §
1983, a plaintiff must prove that the particular defendant
has caused or personally participated in causing the
deprivation of a particular protected constitutional right.
Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981);
Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.
1977). The plaintiff must set forth specific facts showing a
causal connection between each defendant's actions and
the harm allegedly suffered by plaintiff. Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In
addition, defendants in a 42 U.S.C. § 1983 action cannot
be held liable based on a theory of respondeat superior or
vicarious liability. Polk County v. Dodson, 454 U.S.
312, 325 (1981); Bergquist v. County of Cochise, 806
F.2d 1364, 1369 (9th Cir. 1986). “At a minimum, a
§ 1983 plaintiff must show that a supervisory official
at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct.”
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984), cert. denied, 469 U.S. 845 (1984). Here, Mr.
Casterlow-Bey names the DAC but fails to clearly state the
alleged wrong-doing of the DAC.
Mr. Casterlow-Bey fails to allege that he suffered any
actionable harm in this case. He alleges only that he is
“developing a conspiracy phobia as a result of this
ordeal.” Dkt. 1-1, p. 3-4. He alleges no other facts or
circumstances regarding any conduct that deprived him of a
right, privilege, or immunity.
Jarmon's conduct relates to functions traditionally
performed by a public defender, she is therefore not liable
under § 1983. The DAC is not a proper defendant and Mr.
Casterlow-Bey has not alleged personal participation by the
DAC. Mr. Casterlow-Bey must show cause why his claims against
Ms. Jarmon and the DAC should not be dismissed for failure to
state a claim.
the deficiencies described above, the Court will not serve
the complaint. Plaintiff may show cause why his complaint
should not be dismissed or may file an amended complaint to
cure, if possible, the deficiencies noted herein, on
or before September 29, 2017. If an amended
complaint is filed, it must be legibly rewritten or retyped
in its entirety and contain the same case number. Any cause
of action alleged in the original complaint that is not
alleged in the amended complaint is waived. Forsyth v.
Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997),
overruled in part on other grounds, Lacey v.
Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).
Court will screen the amended complaint to determine whether
it states a claim for relief cognizable under 42 U.S.C.
§ 1983. If the amended complaint is not timely filed or
fails to adequately address the issues raised herein, the
undersigned will recommend dismissal of this action as
frivolous under 28 U.S.C. § 1915, and the dismissal will
count as a “strike” under 28 U.S.C. §
1915(g). Plaintiff should be aware that a prisoner who brings
three or more civil actions or appeals that are dismissed on
the grounds that they are legally frivolous, malicious, or
fail to state a claim, will be precluded from bringing any
other civil action or appeal in forma pauperis,
“unless the prisoner is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
Clerk is directed to send plaintiff the appropriate forms for
filing a 42 U.S.C. § 1983 civil rights complaint and for
service, a copy of ...