United States District Court, E.D. Washington
ORDER DISMISSING ACTION 1915(G)
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE
THE COURT is Plaintiff's pro se First Amended
Complaint, ECF No. 42. This document, consisting of 28 pages
of single spaced writing, plus 11 pages of supplemental
information, neither cures the deficiencies of the initial
complaint, nor complies with Rule 8(a), Federal Rules of
Civil Procedure, requiring a short and plain statement of the
claims entitling Plaintiff to relief.
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
The factual allegations must be “enough to raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
complaint may be dismissed if it lacks a cognizable legal
theory or states insufficient facts to support a cognizable
legal theory. Zixiang v. Kerry, 710 F.3d 995, 999
(9th Cir. 2013).
names the Department of Corrections as a Defendant. Section
1983 requires a claimant to prove (1) that a person acting
under color of state law (2) committed an act that deprived
the claimant of some right, privilege, or immunity protected
by the Constitution or laws of the United States. Leer v.
Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988).
“[N]either a State nor its officials acting in their
official capacity are ‘persons' under §
1983.” Will v. Michigan Dept. of State Police,
491 U.S. 58, 71 (1989). Likewise, “arms of the
State” such as the Department of Corrections are not
“persons” amenable to suit under 42 U.S.C. §
1983. Id. at 70. Accordingly, Plaintiff's claims
against the Department of Corrections are subject to
OF TERM “ET AL.”
uses the abbreviation “et al.” inappropriately in
the caption of his First Amended Complaint. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff
must name all defendants in his complaint (an amended
complaint supersedes the initial complaint). Id.
Failing to name all defendants in his complaint denies the
court jurisdiction over the unnamed defendants. Fed.R.Civ.P.
10(a); accord United States ex rel. Blue Circle West,
Inc. v. Tucson Mechanical Contracting Inc., 921 F.2d
911, 914 (9th Cir. 1990).
Court previously advised Plaintiff, Plaintiff's claims
arising prior to March 17, 2014, are barred by the applicable
three year statute of limitations. ECF No. 19 at 5; see
also RK Ventures, Inc. v. City of Seattle, 307 F.3d
1045, 1058 (9th Cir. 2002). Plaintiff asserts that Defendant
Duenich advised Plaintiff prior to March 17, 2014, that
Plaintiff would be allowed to store excessive legal property
in the property room and have access to it. Plaintiff appears
to allege that, by allegedly advising Plaintiff in this way,
Defendant Duenich engaged in “bad-faith
deception.” ECF No. 42, ¶ 18.
extent Plaintiff is attempting to invoke equitable tolling
under Millay v. Cam, 135 Wash.2d 193, 206 (1998)
(requiring “bad faith, deception, or false assurances
by the defendant and the exercise of diligence by the
plaintiff, ” for equitable tolling to apply), he
presents no facts from which the Court could infer that any
alleged promises to archive Plaintiff's legal work
product prior to March 17, 2014, were false assurances which
prevented Plaintiff from timely filing this action.
Therefore, the Court will permit Plaintiff to proceed only
with those claims arising after March 17, 2014. Any factual
allegations preceding Plaintiff's paragraph 18 in his
First Amended Complaint, ECF No. 42 at 10, are subject to
dismissal as time-barred.
complains that on March 19, 2014, Defendant Sergeant Adams
threatened to destroy Plaintiff's legal property if
Plaintiff did not send it out of the facility. ECF No. 42 at
10. Plaintiff complains that he was unable to have the
property stored for “as-needed reference” or to
use to appeal his conviction.Plaintiff further complains that,
in violation of his right to due process, Defendant Adams did
not allow Plaintiff to confirm the address where he was
sending his legal work product for safe keeping.
Consequently, the materials were apparently lost.
addition, Plaintiff complains that Defendant J. Ward refused
to allow Plaintiff to return to the property/staging room to
correct the address labels, or to call Defendant Adams to
correct the address labels. ECF No. 42 at 10. Plaintiff
complains that Defendant Counselor Smet would not intervene
to prevent the loss of his legal materials by failing to
consult with Defendants Lieutenant Duenich, Captain Arnett,
Warden Miller-Stout, or Secretary Bernard Warner regarding
the proper disposition of the legal property. Id. at
each of these factual allegations to be true, Plaintiff has
failed to present facts from which the Court could infer that
Plaintiff suffered an actual injury to his access to the
courts because of his inability to utilize legal work product
amassed over several years. See Lewis v. Casey, 518
U.S. 343, 351-52 (1996).
failed to state a cognizable claim under § 1983 for his
alleged property loss. Even if the deprivation of his
property was intentional, Plaintiff has adequate
post-deprivation remedies. See Hudson v. Palmer, 468
U.S. 517, 533 (1984) (intentional deprivation of property
does not violate due process when meaningful post-deprivation
remedy is available); Barnett v. Centoni, 31 F.3d
813 (9th Cir. 1994) (negligent or intentional deprivation of
prisoner's property fails to state claim under §
1983 if state has adequate post-deprivation remedy).
Plaintiff could seek redress in ...