United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
J. BRYAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation of U.S. Magistrate Judge Theresa L. Fricke.
Dkt. 60. The Court has reviewed the Report and
Recommendation, objections, if any, and the remaining file,
and is fully advised.
filed on October 29, 2015, Plaintiff, a pro se prisoner,
filed this civil rights case alleging that Defendants
Washington State Department of Corrections
(“DOC”), Leon Kershaw, and Carolee Roop violated
his constitutional rights when they failed to protect him
from another inmate, when he was placed in administrative
segregation for around seven days without being given a
hearing, and when they failed to provide him adequate medical
care. Dkt. 6.
response to Defendants DOC, Kershaw and Roop's motion to
dismiss, Plaintiff filed a motion for an extension of time to
file a motion for leave to amend the complaint. Dkt. 19.
Plaintiff was granted until March 9, 2016 to file a proposed
amended complaint. Dkt. 21. Plaintiff did not do so. Instead,
on March 30, 2016, Plaintiff moved to voluntarily dismiss his
claims against Defendants Kershaw and Roop. Dkt. 23.
17, 2016, a Report and Recommendation was issued,
recommending that the Court dismiss all claims asserted
against DOC because (1) states are not considered
“persons” under § 1983, and (2) based on the
11th Amendment to the U.S. Constitution, as an arm
of the state, the DOC was immune from suit in the federal
courts. Dkt. 24. It recommended granting Plaintiff's
motion to voluntarily dismiss Defendants Kershaw and Roop
without prejudice. Id. It also recommended dismissal
of the case without leave to amend to give Plaintiff a chance
to name “unknown” medical personnel because he
had already been given a chance to file an amended complaint
and did not do so. Id. This Court adopted the Report
and Recommendation and closed the case. Dkt. 26.
appealed the decision with the Ninth Circuit Court of
Appeals. Dkt. 28. The Ninth Circuit affirmed this Court's
decision to dismiss the complaint, but reversed the decision
to deny Plaintiff another opportunity to amend his complaint.
Dkts. 33 and 34. The case was remanded “to provide
Ejonga-Deogracias an opportunity to file an amended complaint
that names the correct defendants.” Dkt. 33. This case
was re-referred to a magistrate judge. Dkt. 39.
5, 2017, Plaintiff filed an Amended Complaint. Dkt. 44. In
his Amended Complaint, Plaintiff names Superintendent Donald
Holbrook, retired DOC officer Bill Hamby, and “four
unknown DOC staff, ” while asserting the same or
similar allegations as were in the original complaint.
Id. As relief, Plaintiff seeks $4, 500 per day that
he spent in administrative segregation. Id.
August 10, 2017, Plaintiff filed a pleading entitled
“Notice to Court and the Attorney General of the
Plaintiff [sic] Intent for Additional Defendant and
Additional Claim to the Current Defendant and Amendment to
Relief Sought.” Dkt. 47. Construing the pleading as a
motion, the Defendants opposed the motion because Plaintiff
failed to comply with Local Rule W.D. Wash 15 and provide a
copy of the proposed second amended complaint so that they
could see the changes Plaintiff wanted. Dkt. 52. In his
reply, Plaintiff stated that the pleading filed on August 10,
2017 was not intended to be a motion, but only a notice. Dkt.
57. On November 2, 2017, his “Notice to Court and the
Attorney General of the Plaintiff [sic] Intent for Additional
Defendant and Additional Claim to the Current Defendant and
Amendment to Relief Sought” was stricken as moot and
Plaintiff was reminded to follow the federal and local rules
if he wanted to move to amend the amended complaint. Dkt. 59.
on August 11, 2017, Defendant Holbrook filed the motion to
dismiss (Dkt. 50) that is the subject of the Report and
Recommendation. The relevant facts are in the Report and
Recommendation (Dkt. 60, at 1-2) and are adopted here. The
Report and Recommendation recommends the Court grant the
motion to dismiss for the Plaintiff's failure to plead
facts which would entitle him to relief. Dkt. 60, at 2-5.
filed objections, and argues that a plaintiff in a §
1983 action no longer need show that a supervisor, like
Defendant Holbrook, personally participated in the
deprivation of someone's constitutional rights to be held
liable. Dkt. 61. Further, he asserts that the fact that
Defendant Holbrook's subordinates did not follow DOC
policy demonstrated that Defendant Holbrook failed to
properly train and supervise them and so is liable under
§ 1983. Id.
Report and Recommendation's recommendation, that the
motion to dismiss (Dkt. 50) be granted, (Dkt. 60) should be
adopted. Plaintiff's objections do not provide a basis to
reject the Report and Recommendation.
supervisor may be liable under § 1983 “only if (1)
he or she is personally involved in the constitutional
deprivation, or (2) there is a sufficient causal connection
between the supervisor's wrongful conduct and the
constitutional violation.” Crowley v.
Bannister, 734 F.3d 967, 977 (9th Cir. 2013). Under the
second theory, “supervisory liability exists even
without overt personal participation in the offensive act if
supervisory officials implement a policy so deficient ...