United States District Court, W.D. Washington, Tacoma
FOR: JANUARY 5, 2018
REPORT AND RECOMMENDATION
Richard Creatura United States Magistrate Judge
too much is simply not enough. Here, plaintiff has filed, and
continues to file, a plethora of pleadings, but so far, none
of them set forth a simple plain statement that would entitle
him to relief. Until and unless he can do so, the Court will
continue to recommend that his complaints be dismissed. The
Court recommends that he again be given one more chance to do
so. In the future, failure to provide such a plain statement
will result in a dismissal of his claim with prejudice.
and PROCEDURAL HISTORY
a state prisoner currently held at the Washington Corrections
Center (“WCC”), originally filed this action in
March of 2015. Dkt. 1. He subsequently filed three other
cases based on similar facts. See Irby v. Gilbert,
No. 3:16-cv-05052-RBL-JRC; Irby v. Guidry, No.
3:17-cv-05070-RBL-JRC; Irby v. Abraha, No.
3:17-cv-05377-RBL-JRC. In June of 2017, the Court ordered
that those three cases be consolidated with the present case
as the lead case. Dkt. 113. The Court ordered plaintiff to
file a consolidated complaint, setting forth all allegations
from all four cases. Id.
filed his amended complaint. Dkt. 116. Defendants filed an
answer. Dkt. 124. Both parties subsequently filed numerous
motions, asking for extensions of time, leave to file excess
pages, and moving to dismiss the action. See Dkt.
The Court eventually ordered that plaintiff file a second
amended complaint. Dkt. 157. Plaintiff filed his second
amended complaint in September of 2017 (Dkt. 165), and
shortly thereafter filed a motion to voluntarily dismiss
several defendants (Dkt. 162). Plaintiff then filed a
“corrected” second amended complaint (Dkt. 167),
a motion to correct/amend the corrected second amended
complaint (Dkt. 178), and a second motion to correct/amend
the corrected second amended complaint (Dkt. 182).
filed responses, explaining that plaintiff had filed so many
documents, they were unclear which was the operative
complaint and therefore did not understand what the Court
expected them to respond to. Dkts. 185, 186, 187. To clarify,
the Court ordered that the most recent proposed complaint
(Dkt. 178 at 1-30) be docketed as plaintiff's third
amended complaint and that defendants respond to that. Dkts.
189, 190. The third amended complaint made numerous
allegations, including claims for deliberate indifference,
claims under the American with Disabilities Act
(“ADA”), claims challenging his conditions of
confinement and access to courts, and claims for conspiracy.
Dkt. 190. Both the state defendants and defendant Guidry
filed motions to dismiss in response. Dkts. 198, 208.
Plaintiff responded (Dkts. 219, 220, 221) and defendants
replied (Dkts. 226, 227). Plaintiff has subsequently filed a
series of additional motions that are still pending before
the Court. Dkts. 203, 204, 215, 228, 229, 230, 231.
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). A motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
can be granted only if the complaint, with all factual
allegations accepted as true, fails to “raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
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 is proceeding pro se, his allegations must
be viewed under a less stringent standard than allegations of
plaintiffs represented by counsel. Haines v. Kerner,
404 U.S. 519 (1972), reh'g denied, 405 U.S. 948
(1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1
(9th Cir. 1985) (en banc) (petitioner should be afforded the
“benefit of any doubt”).
Court has considered plaintiff's third amended complaint
(Dkt. 190), defendants' motions for dismissal (Dkts. 198,
208), plaintiff's responses to those motions (Dkts. 219,
220, 221), and defendants' replies (Dkts. 226, 227). The
Court has also considered plaintiff's notice of voluntary
dismissal as to 11 defendants. Dkt. 239.
first step in a § 1983 claim is to identify the specific
constitutional right allegedly infringed. Albright v.
Oliver, 510 U.S. 266, 271 (1994). To state a claim for
relief under 42 U.S.C. § 1983, at least two elements
must be met: (1) the alleged infringement must have been
proximately caused by a person acting under color of state
law and (2) defendants' conduct must have deprived the
plaintiff of rights, privileges or immunities secured by the
Constitution or laws of the United States. Paratt v.
Taylor, 451 U.S. 527 (1981). A third element of
causation is implicit in the second element. See Mt.
Healthy City School Dist. Bd. Of Educ. v. Doyle, 429
U.S. 274, 286-87 (1977); Flores v. Pierce, 617 F.2d
1386, 1390-91 (9th Cir. 1980), cert denied, 449 U.S.
875 (1980). 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). Defendants do not contest that they were acting under
the color of state law and thus, the Court addresses whether
defendants' conduct deprived plaintiff of any
Defendants as the State or Arms of the State
complaint, plaintiff names the State of Washington as well as
the “entity-municipality (SCCC) (CBCC), ” which
this Court interprets to refer to the Stafford Creek
Corrections Center (“SCCC”) and the Clallam Bay
Corrections Center (“CBCC”) respectively. 42
U.S.C. § 1983 applies to the actions of
“persons” acting under color of state law.
However, for the purposes of § 1983, a state is not a
“person.” See Arizonans for Official English
v. Arizona, 520 U.S. 43, 69 (1997); Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989).
Similarly, an agency that is an arm of the state is also not
a “person” under § 1983. See Howlett v.
Rose, 496 U.S. 356, 365 (1990); also Alabama v.
Pugh, 438 U.S. 781, 782 (1978) (per curiam) (concluding
that the suit against the state Board of Corrections was
barred by the Eleventh Amendment).
defendants Washington, SCCC, and CBCC cannot be held liable
under § 1983. Because defendant Washington is a state,
it is not a “person” for § 1983 purposes.
Defendants SCCC and CBCC are both prisons run by the
Washington Department of Corrections -- a state agency.
Similar to states, state agencies cannot be sued under §
1983. Because of this, plaintiff has named these defendants
improperly. Therefore, the Court recommends the three above
noted defendants be dismissed from the action.