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Brown v. Morgan

United States District Court, W.D. Washington, Tacoma

December 21, 2017

GREGORY TYREE BROWN, Plaintiff,
v.
RICHARD MORGAN, et. al., Defendants.

          REPORT AND RECOMMENDATION

          Theresa L. Fricke United States Magistrate Judge

          This 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.

         BACKGROUND

         Plaintiff, 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.

         On 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.

         Plaintiff 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., p. 12.

         Plaintiff 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.

         In 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.

         The 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.

         On 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).

         On 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.

         DISCUSSION

         A. Screening under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(a), (b)

         The 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)[1]; 28 U.S.C. § 1915A(a), (b).[2] A prisoner proceeding in forma pauperis may only have three dismissals (“strikes”) under 28 U.S.C. ...


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