United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge
matter is before the Court on plaintiff's filing of an
amended complaint pursuant to the Court's orders. Dkts.
5, 10, 17. Plaintiff is proceeding pro se and in
forma pauperis in this matter, which has been referred
to the undersigned Magistrate Judge. Mathews, Sec'y
of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C.
§ 636(b)(1)(B); Local Rule MJR 4(a)(4). For the reasons
set forth below, plaintiff's amended complaint remains
fatally deficient, and therefore the undersigned recommends
that the Court dismiss all time-barred claims.
who is housed at Clallam Bay Corrections Center, alleges his
constitutional rights were violated by 76 employees of the
Department of Corrections (“DOC”) for conduct
allegedly occurring from 1984 to the present in at least four
correctional institutions (Clallam Bay Corrections Center,
Washington State Penitentiary, Washington State Reformatory,
and Airway Heights Corrections Center). Dkt. 4.
December 13, 2016, the Court declined to serve
plaintiff's complaint (Dkt. 4) because of several noted
deficiencies. Dkt. 5. The plaintiff was given an opportunity
to file an amended complaint, and an extension of time within
which to do so, to cure the deficiencies or show cause why
his complaint should not be dismissed. Dkt. 7.
filed an 84-page amended complaint, naming 58 defendants and
“John/Jane Does I through CI”, on February 13,
2017. Dkt. 8. The first amended complaint was also deficient
and many of the claims he asserted appeared to be untimely;
so the Court provided plaintiff with a second opportunity to
cure. Dkt. 10. The Court specifically directed plaintiff to
limit his second amended complaint to 20 pages. Id.,
filed a second amended complaint. Dkt. 14. This document is
54 pages long and names 76 defendants. Many allegations
contained in the complaint concern discrete acts and
omissions that fall outside of the applicable three-year
statute of limitations.
paragraphs 44 through 111 (Dkt. 14 at pp. 14-32), plaintiff
claims he was denied access to courts, was retaliated
against, had false grievances filed against him, had his
magazines and mail confiscated, and was wrongfully
transferred. All of these events occurred between 1984 and
2013 and according to plaintiff inflicted “constant and
prolonged fear.” Dkt. 14, ¶ 107. In paragraphs 165
through 172, plaintiff asserts that between July 1983 and
December 2017, over 700, 000 grievances were filed by all
prisoners but no staff misconduct was ever found and this
resulted in a “culture of fear and terror for
prisoners.” Id., ¶¶ 167, 172.
allegations set forth in paragraphs 112 through 164 (Dkt. 14
at pp. 32-46) and 181(Dkt. 14 at 52) appear to be timely and
may possibly state sufficient facts to constitute a claim
under 42 U.S.C. § 1983. For example, plaintiff alleges
that his legal mail was wrongfully confiscated in March 2014;
he was denied access to the courts in May 2014; he was
wrongfully infracted for refusing to participate in
programming in August 2014; his religious items were
wrongfully confiscated in November 2015; his library access
and denied in January 2016; the law library was deficient in
September 2015; and in March 2014 he received retaliatory
demerits. Dkt. 14, ¶¶ 112-164.
August 8, 2017, plaintiff was directed to file a third
amended complaint containing a short, plain statement of the
allegations concerning only those claims potentially within
the statute of limitations and naming only those defendants
who participated in or caused a violation of his
constitutional rights within the statute of limitations. Dkt.
17. The Court also admonished plaintiff that his third
amended complaint must not be as lengthy, and he must make
every effort to describe the factual allegations in plain and
clear language, as required by Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 8(a). He was warned
that the complaint may be dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2), 1915A(a), (b)(1), because it fails
to comply with Fed.R.Civ.P. 8(a) and because it fails to
state a claim upon which relief may be granted. He was
further warned that this dismissal may count as a strike
under 28 U.S.C. § 1915(g).
September 11, 2017, plaintiff filed a response to the
Court's order to show cause or to amend. Dkt. 18. He
argues that dismissing the complaint under Fed.R.Civ.P. 8(a)
would be an abuse of discretion, that his claims are not
barred by the statute of limitations, and that the entities
and individuals named in his complaint are properly included.
He “respectfully stands on the pleadings contained in
his Second Amended Complaint for purposes of appellate
review.” Dkt. 18 at 8.
Screening under 28 U.S.C. § 1915(e)(2) and 28 U.S.C.
§ 1915A(a), (b)
Court is required to screen in forma pauperis
prisoner complaints and must dismiss the complaint “at
any time if the [C]ourt determines” that the action:
(a) is frivolous, or (b) malicious, or (c) ‘fails to
state a claim on which relief may be granted' or (d)
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2); 28 U.S.C. § 1915A(a),
A prisoner proceeding in forma pauperis may only
have three dismissals (“strikes”) under 28 U.S.C.