Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Genoway v. Washington State Department of Correction

United States District Court, E.D. Washington

November 28, 2017

GILBERT GENOWAY, Plaintiff,
v.
WASHINGTON STATE DEPARTMENT OF CORRECTIONS, BERNARD WARNER, DR. JODY BECKER GREEN, MAGGIE MILLER-STOUT, JAMES KEY, APM ANNE GUZMAN, CAPT. ARNETT, CUS P. DUENICH, CUS KERRY LAWRENCE, CC3 SAIZ, CPM K. WITT, GRIEVANCE COORDINATOR B. DESHAZER, SGT. ADAMS, CC3 RUBEN STOKES, CC2 KEVIN LIGHTBODY, CC2 PEGGIE SMET, CO J. WARD, CO RIDGEWAY, AC M. BARBER, GRIEVANCE COORDINATOR J. MARTIN, and GPM D. CALDWELL, Defendants.

          ORDER DISMISSING ACTION 1915(G)

          ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE

         BEFORE 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.

         A 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).

         DEPARTMENT OF CORRECTIONS

         Plaintiff 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 dismissal.

         USE OF TERM “ET AL.”

         Plaintiff 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).

         STATUTE OF LIMITATIONS

         As the 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.

         To the 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.

         LEGAL PROPERY

         Plaintiff 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.[1]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.

         In 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 11.

         Assuming 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).

         Plaintiff 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 ยง 1983 if state has adequate post-deprivation remedy). Plaintiff could seek redress in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.