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Terwilleger v. State

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

October 25, 2017



          David W. Christel, United States Magistrate Judge.

         In 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.


         Plaintiff originally filed his complaint, along with an Application to Proceed In Forma Pauperis, on May 15, 2017. Dkt. 1.[1] 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).


         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). 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).

         I. Motion to Reopen Case and Motion to Appoint Counsel

         Plaintiff 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 due.

         II. Additional Deficiencies

         Plaintiff 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'”).

         Here, 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.

         Further, 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).

         Finally, 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 ...

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