United States District Court, W.D. Washington, Tacoma
ORDER ON MOTIONS TO REOPEN CASE AND FOR COURT
APPOINTED COUNSEL AND ORDER GIVING PLAINTIFF LEAVE TO
W. Christel, United States Magistrate Judge.
response to an Order entered by the Honorable Robert J.
Bryan, Plaintiff Brian Terwilleger, proceeding pro
se, has filed an amended civil rights complaint under 42
U.S.C. § 1983 (“Amended Complaint”). He has
also filed a Motion to Reopen His Case and a Motion for
Appointment of Counsel. However, he has neglected to provide
a justification for reopening his case or for appointment of
counsel and his Amended Complaint still suffers from other
deficiencies. Therefore, the Court declines to reopen the
case at this time, declines appointment of counsel, and
orders Plaintiff to file a Second Amended Complaint
addressing the deficiencies identified herein.
originally filed his complaint, along with an Application to
Proceed In Forma Pauperis, on May 15, 2017. Dkt.
Because of the nature of Plaintiff's allegations, the
District Court could not determine whether Plaintiff was
attempting to file a § 1983 complaint or a habeas
petition. Dkts. 6, 10. After giving Plaintiff the opportunity
to amend and choose between a § 1983 action or a habeas
petition, Judge Bryan dismissed the case without prejudice.
Dkts. 6, 10. Plaintiff subsequently moved to reopen the case.
Dkt. 11. Judge Bryan then entered two additional orders
identifying the deficiencies in Plaintiff's complaint.
See Dkts. 12, 17. However, he gave Plaintiff leave
to amend, referred the case to the undersigned, and re-noted
Plaintiff's motions for this Court's consideration.
Dkt. 17. Plaintiff filed a Proposed Amended Complaint (Dkt.
20), a Supplement to the Complaint (Dkt. 22), and a Motion to
Amend his Proposed Amended Complaint (Dkt. 23).
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).
Motion to Reopen Case and Motion to Appoint Counsel
first moves to reopen his case and have the Court appoint him
counsel. Plaintiff's Amended Complaint complies with
Judge Bryan's orders requiring that his complaint not
raise any claim related to past criminal convictions or
current criminal proceedings. Plaintiff has limited his claim
to unlawful restriction of his access to the law library, an
appropriate § 1983 claim that does not challenge any
previous convictions. Dkt. 20 at 3-4. However, the Amended
Complaint suffers from other deficiencies which are addressed
herein. Because Plaintiff has remedied the deficiencies noted
by Judge Bryan, but has other outstanding deficiencies he
must address before his complaint can be served, the Court
declines to grant his motions at this time. Instead, the
Clerk is directed to re-note the Motion to Reopen Case and
Motion to Appoint Counsel (Dkt. 11) to November 25, 2017--the
same date Plaintiff's Second Amended Complaint will be
appears to allege that, though he has ongoing litigation in
this Court, jail staff have unlawfully restricted his access
to the law library. To state a claim under 42 U.S.C. §
1983, Plaintiff must allege facts showing how a defendant
caused or personally participated in causing the harm alleged
in the complaint. Leer v. Murphy, 844 F.2d 628, 633
(9th Cir. 1988); Arnold, 637 F.2d at 1355. A person
subjects another to a deprivation of a constitutional right
when committing an affirmative act, participating in
another's affirmative act, or omitting to perform an act
which is legally required. Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978). Sweeping conclusory
allegations against an official are insufficient to state a
claim for relief. Leer, 844 F.2d at 633. Further,
§ 1983 actions only apply to the actions of
“persons” acting under the color of state law.
See 42 U.S.C. § 1983. Jails and prisons, as
arms of the state, are not “persons” for purposes
of a § 1983 action. See Will v. Michigan Dep't
of State Police, 491 U.S. 58, 65, 71 (1989) (states are
not “persons” amenable to suit under § 1983;
the limitation extends to “governmental entities that
are considered ‘arms of the state'”).
Plaintiff has not properly alleged the personal participation
of any defendants. Plaintiff names the State of Washington
and the Grays Harbor County Jail as the two Defendants in
this case. Dkt. 20 at 1. However, he currently alleges jail
staff unlawfully restricted his access to the law library. He
does not identify who actually violated his rights, and he
does not explain the connection between the named Defendants
and his alleged constitutional violation. Because of this,
Plaintiff has not alleged personal participation as required
in a § 1983 action. Further, Plaintiff names Grays
Harbor County Jail as a Defendant along with the State of
Washington. Neither the State nor an arm of the state, such
as a county jail, are appropriate Defendants under §
1983. See Will, 491 U.S. at 65, 71. Therefore,
Plaintiff should file an amended complaint, alleging which
person or persons actually limited his access to the law
library, what actions they took or failed to take when his
access was limited, and how that caused him harm. Further,
Plaintiff should be sure to include the person or persons as
named Defendants in his Second Amended Complaint.
the Court notes Plaintiff stated he wants his amend his
complaint to be read “as having only Grays Harbor
County (Jail)” as a Defendant. Dkt. 23 at 1. As noted
above, as an arm of the state, Grays Harbor County Jail is
not an appropriate Defendant in a § 1983 claim. However,
Plaintiff may be able to name Grays Harbor County itself as a
Defendant. A municipality, such as a county, may be liable
under § 1983 if its policies are the
‘“moving force [behind] the [alleged]
constitutional violation.'” City of Canton v.
Harris, 489 U.S. 378, 389 (1989) (quoting Monell v.
Department of Social Services, 463 U.S. 658, 694
(1978)). In order to state a claim against such an entity
plaintiff must show that defendant's employees or agents
acted through an official custom or policy that violates, or
permits deliberate indifference to, plaintiff's civil
rights; or that the entity ratified the unlawful conduct.
See Monell, 436 U.S. at 690-91; Larez v. City of
Los Angeles, 946 F.2d 630, 646-47 (9th Cir. 1991). It
cannot be held liable merely because a government employee
under its purview engaged in unconstitutional acts.
Monell, 436 U.S. at 692. Thus, to name Grays Harbor
County as a Defendant under § 1983, Plaintiff must show:
1) deprivation of a constitutional right; 2) that the county
has a policy; 3) the policy amounts to a violation or
deliberate indifference to Plaintiff's constitutional
rights; and 4) the policy is the moving force behind the
constitutional violation. See Oviatt v. Pearce, 954
F.2d 1470, 1474 (9th Cir. 1992).
because the Court has provided Plaintiff with leave to amend,
the Court denies his Motion to Amend (Dkt. 23) as moot.
Instead, Plaintiff should file a Second Amended ...