United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR FILE SECOND AMENDED
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.
David Henry Curry, proceeding pro se and in
forma pauperis, filed this civil rights complaint under
42 U.S.C. § 1983. Pursuant to this Court's order,
plaintiff has filed an amended complaint. However, in his
amended complaint, he has not alleged a claim for which
relief can be granted. Therefore, the Court orders that
plaintiff file a second amended complaint explaining the
particular injury he has allegedly suffered and how each
defendant caused that alleged injury.
has been incarcerated at the Pierce County Jail since January
of 2017. Dkt. 6 at 7. He filed his complaint in September of
2017. Dkt. 1. The Court ordered him to file an amended
complaint alleging the personal participation by his named
defendants. Dkt. 7. In response, plaintiff filed an amended
complaint. Dkt. 9. In that complaint, plaintiff names two
specific defendants, but does not provide facts explaining
the unlawful actions each defendant allegedly took.
Id. He further does not specify what harm
defendants' alleged actions caused. Id.
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).
complaint suffers from deficiencies requiring dismissal if
not corrected in an amended complaint.
Claims For Which Relief May Be Granted
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Mere conclusory
statements in a complaint and “formulaic recitation[s]
of the elements of a cause of action” are not
sufficient. Id.; Chavez v. United States,
683 F.3d 1102, 1108-09 (9th Cir. 2012). “Dismissal can
be based on the lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal
theory.” Ballistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1990).
plaintiff has not alleged sufficient facts to establish a
claim for which relief can be granted. He has properly named
two specific defendants and alleged that they were
“fully aware of [plaintiff's] medical issues”
and “offered no relief.” Dkt. 9 at 3. However, he
has not explained what those medical issues are or how
defendants' actions led to his harm. Rather, he states
that defendants possessed his medical records, that they left
his health issues untreated for months, and that, therefore,
they were “deliberately indifferent to [his] medical
needs.” Dkt. 9 at 3. The Court cannot determine whether
defendants were deliberately indifferent to plaintiff's
medical needs unless plaintiff explains what serious medical
needs he has and how defendants' actions rose to unlawful
indifference. Plaintiff's bare allegations do not show
that his constitutional rights were violated, that it was
defendants who violated those rights, or that plaintiff
suffered an injury. Because of this, plaintiff's
allegations do not state a claim for which relief can be
granted. Therefore, the Court orders plaintiff to file a
second amended complaint containing sufficient facts to
allege a claim for which relief can be granted, or otherwise
show cause why the Court should not recommend that his action
Instructions to Plaintiff
the deficiencies described above, the Court will not serve
plaintiff's complaint. If plaintiff intends to pursue a
§ 1983 civil rights action in this Court, he must file a
second amended complaint and within the second amended
complaint, he must write a short, plain statement alleging:
(1) the constitutional right plaintiff believes was violated;
(2) the name or names of the person or persons who violated
the right; (3) exactly what each individual or entity
did or failed to do; (4) how the action or inaction
of each individual or entity is connected to the violation of
plaintiff's constitutional rights; and (5) what
specific injury plaintiff suffered because of the
individuals' conduct. See Rizzo v.
Goode, 423 U.S. 362, 371-72, 377 (1976).
shall present the second amended complaint on the form
provided by the Court. The second amended complaint must be
legibly rewritten or retyped in its entirety, it should be an
original and not a copy, it should contain the same case
number, and it may not incorporate any part of the original
amended complaints by reference. The second amended complaint
will act as a complete substitute for the amended complaint,
and not as a supplement. A second amended complaint
supersedes the amended complaint. Forsyth v. Humana,
Inc.,114 F.3d 1467, 1474 (9th Cir. 1997) overruled
in part on other grounds, Lacey v. Maricopa County, 693
F.3d 896 (9th Cir. 2012). Therefore, the second amended
complaint must be complete in itself and all facts and causes
of action alleged in the original or amended complaints that
are not alleged in the second amended complaint are waived.
Forsyth, 114 F.3d at 1474. The Court will screen the
second amended complaint to determine whether it contains