United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW OR AMEND COMPLAINT
Richard Creatura United States Magistrate Judge.
Ryan Cross, proceeding pro se and in forma
pauperis, filed this civil rights complaint under 42
U.S.C. § 1983. Plaintiff alleges his constitutional
rights were violated when he was denied one of his most
important medications. However, the only defendant he has
named is the Department of Corrections, and he has not
alleged violations by any other individuals in the body of
his complaint. Having reviewed and screened plaintiff's
complaint under 28 U.S.C. § 1915A, the Court declines to
serve plaintiff's complaint because plaintiff has yet to
plead sufficient facts to demonstrate that any individual
violated his constitutional rights. However, the Court
provides plaintiff leave to file an amended pleading by May
11, 2018, to cure the deficiencies identified herein.
originally filed his complaint in March of 2018. Dkt.
He initially filed his complaint with neither an application
to proceed in forma pauperis nor the filing fee, but
subsequently provided an application to proceed in form
pauperis (Dkt. 4) which the Court granted (Dkt. 5). He
alleges that defendant violated his constitutional rights
when medical staff refused to provide plaintiff with Effexor,
allegedly one of his most important medications, resulting in
side aches and headaches that have persisted even after he
was returned to the medication. Dkt. 6. He does not list a
specific remedy, but states he hopes the Court will
“get [plaintiff] the justice [he] deserves.”
Id. at 4.
State or Arm of the State as Defendant
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).
plaintiff has only named the DOC as the defendant. The DOC is
an agency that is an arm of the State of Washington. Because
of this, the DOC is not a person who can be sued under §
1983. Therefore, plaintiff has not yet stated a claim upon
which relief can be granted and the Court declines to serve
his complaint at this time.
Personal Participation by Defendant
state a claim under 42 U.S.C. § 1983, plaintiff must
allege facts showing how a defendant caused or personally
participated in causing the harm alleged in the complaint.
Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988);
Arnold, 637 F.2d at 1355. A person subjects another
to a deprivation of a constitutional right when committing an
affirmative act, participating in another's affirmative
act, or failing to perform an act which is legally required.
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Further, a § 1983 suit cannot be based on vicarious
liability alone, but must allege an individual
defendant's own conduct violated the plaintiff's
civil rights. City of Canton v. Harris, 489 U.S.
378, 385-90 (1989).
as noted above, plaintiff has only named the DOC as the
defendant in this action. He has not named any particular
individual or explained how any particular individual
defendants allegedly deprived him of his constitutional
rights by refusing to provide him necessary medication.
Therefore, plaintiff has not yet stated a claim for which
relief can be granted.
Instructions to Plaintiff and the Clerk
the deficiencies described above, the Court will not serve
plaintiff's complaint. If plaintiff intends to pursue a
§ 1983 civil rights action in this Court, he must file
an amended complaint and within the amended complaint, he
must write a short, plain statement telling the Court: (1)
the constitutional right plaintiff believes was violated; (2)
the name or names of the person or persons who violated
the right; (3) exactly what each individual or
entity did or failed to do; (4) how the action or
inaction of each individual or entity is connected to the
violation of plaintiff's constitutional rights; and (5)
what specific injury plaintiff suffered because of the
individuals' conduct. See Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976).
shall present the amended complaint on the form provided by
the Court. The amended complaint must be legibly rewritten or
retyped in its entirety, it should be an original and not a
copy, it should contain the same case number, and it may not
incorporate any part of the original complaint by reference.
The amended complaint will act as a complete substitute for
the original complaint, and not as a supplement. An amended
complaint supersedes the original complaint. Forsyth v.
Humana, Inc.,114 F.3d 1467, 1474 (9th Cir. 1997)
overruled in part on other grounds, Lacey v. Maricopa
County,693 F.3d 896 (9th Cir. 2012). Therefore, the
amended complaint must be complete in itself and all facts
and causes of action alleged in the original complaint that
are not alleged in the amended complaint are waived.
Forsyth, 114 F.3d at 1474. The Court will screen the
amended complaint to determine whether it contains ...