United States District Court, W.D. Washington
REPORT AND RECOMMENDATION
Richard Creatura United States Magistrate Judge
U.S.C. § 1983 civil rights matter has been referred to
United States Magistrate Judge J. Richard Creatura pursuant
to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local
Magistrate Judge Rules MJR 1, MJR 3, and MJR 4. Before the
Court are defendants' motions to dismiss. Dkts. 69, 73.
Gary Casterlow-Bey filed a third amended complaint alleging
that defendants confiscated his legal materials and
obstructed his access to the courts, placed him in a
non-residential holding cell in violation of his protections
against cruel and unusual punishment, and unlawfully failed
to provide treatment in violation of the American with
Disabilities Act (“ADA”). However, plaintiff has
failed to describe any of individual defendants violated his
rights, or even to mention the defendants in the body of his
complaint. Instead, plaintiff alleges general allegations
apparently perpetrated by the proverbial “they”.
That is insufficient. Because the Court has previously
notified plaintiff of the need to plead personal
participation in his complaint, and because this is his third
amended complaint, which still suffers from the same
deficiencies, the Court recommends granting defendants'
motions and dismissing plaintiff's action without leave
and PROCEDURAL HISTORY
filed his original complaint in August of 2017. Dkt. 1.
Pursuant to an order from this Court indicating plaintiff had
failed to allege personal participation, plaintiff filed an
amended complaint in September of 2017. Dkts. 9, 13, 14.
Plaintiff then filed a motion to amend his complaint to
include conspiracy claims (Dkt. 16), which the Court granted
(Dkt. 19). Plaintiff then again filed a motion to amend, this
time to include additional defendants (Dkt. 25), which the
Court again granted (Dkt. 30). Plaintiff filed his third
amended complaint, the operative complaint in this action.
third amended complaint, plaintiff alleges that defendants
violated his constitutional rights when they confiscated his
legal documents, refused to return them, and thereby blocked
his access to the courts. Dkt. 31 at 3. He further alleges
that he is living with a disability and that defendants
housed him in a non-living holding cell with no
accommodations for his disability, forced him to sleep on the
concrete floor, and held him in isolation with no access to
the law library. Id. Plaintiff also alleges, while
housed in this cell, he fell and struck his head,
“requiring emergency medical treat[ment] in violation
of [the] 1990 Americans with Disabilities Act.”
Id. Plaintiff alleges his lack of legal access
prohibited him from effectively pursuing four civil actions
pending in the federal court and requests $5 million in
compensatory and punitive damages. Id. at 3-4.
filed two separate motions to dismiss. Dkts. 69, 73. One
motion to dismiss was filed by “Nurse Defendants”
“E. Yagi, ” “B. Cammer, ” “C.
Carrillo, ” “S. Bual, ” and “V.
Valencia.” Dkt. 73. The other motion to dismiss was
filed by the “Pierce County Defendants, ” that is
all remaining defendants not named as “Nurse
Defendants.” Dkt. 69. Both motions argued, among other
defenses, that plaintiff had failed to allege personal
participation by any defendants. Dkts. 69, 73. Plaintiff
responded, arguing defendants were attempting to use Rule 12
as a “technical ruse and civil legal maneuver” to
avoid addressing plaintiff's claims on the merits and
asking the Court to allow the complaint to be addressed on
the merits before a jury. Dkt. 74. Defendants filed a reply,
stating plaintiff did not adequately respond to their
motions, thereby allowing the Court to infer that the motions
have merit. Dkts. 75 at 2, 76 at 2 (citing LCR 7(b)(2)).
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).
The pleading must be more than an “unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 556, 570).
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”). While the court must
liberally construe a plaintiff's complaint, it cannot
supply an essential fact an inmate has failed to plead.
Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)
(quoting Ivey v. Board of Regents of University of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). The court
need not accept as true unreasonable inferences or conclusory
legal allegations cast in the form of factual allegations.
See Sprewell v. Golden State Warriors, 266 F.3d 979,
988 (9th Cir. 2001).
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 v. Int'l Business Machines Corp., 637
F.2d 1350, 1355. A person subjects another to a deprivation
of a constitutional right when committing an affirmative act,
participating in another's affirmative act, or omitting
to perform an act which is legally required. Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff must
show that an individual defendant participated in or directed
the alleged harm, or knew of the harm and failed to act to
prevent it. See Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999).
plaintiff alleges that, “acting under color of state
law and in a collusionary [sic] fashion, ” defendants
violated his rights when they confiscated a box of his legal
papers, transferred him to a non-living area without the
necessary accommodations, withheld writing materials from
him, and failed to provide medical care in violation of the
ADA. Dkt. 31 at 3. He states that he “asked each
defendant named for help, ” yet “all named
defendants acted indirectly as well as directly participating
in violation of [plaintiff's rights].” Id.
at 4. However, plaintiff has not described with any level of
specificity who violated his right or how they did so.
Rather, he relies on a recitation of alleged violations
followed by a generalized description that all defendants
contributed to the violations “indirectly as well as
directly.” Id. His recitation is akin to the
accusation” that does not suffice as ...