United States District Court, W.D. Washington, Seattle
HAYDEN A. BEAULIEU, Plaintiff,
GREGORY MCKAY, et al., Defendants.
ORDER REGARDING PENDING MOTION AND SERVICE, AND
DIRECTING PLAINTIFF TO SHOW CAUSE
ALICE THEILER UNITED STATES MAGISTRATE JUDGE.
proceeds pro se and in forma pauperis (IFP) in this
42 U.S.C. § 1983 matter. Plaintiff alleges
“violations of the McKinney-Vento Act as applicable to
homeless children and state-law negligence claims” and
names “two public employees in their official
capacity.” (Dkt. 6 at 1.) He specifically identifies as
defendants Gregory McKay, Director of the Arizona Department
of Child Safety, and Scott VanGerpen, an employee of the
Auburn School District.
complaint, plaintiff describes events beginning in November
2014, when he was a minor, and became homeless in Washington
State following a physical altercation with his father and
the issuance of a no-contact order. Plaintiff states he
remained homeless in Washington until July 2015, when he flew
to Arizona to stay with relatives, but was shortly thereafter
removed from those relatives by the Arizona Department of
Child Safety. He alleges McKay, through the Arizona
Department of Child Safety and by forcing him to remain in
foster care in Arizona, deprived him of his rights under the
McKinney-Vento Act to attend his home school and receive
services in his home state. He alleges VanGerpen, his school
counselor in Washington, referred him to various homeless
shelters, but failed to report and seek intervention by
Washington Child Protective Services and that this negligence
led to the events he suffered in Arizona.
asserts the tolling of his statute of limitations under ARS
§ 12-821.01(D) and RCW § 4.16.90 until his
eighteenth birthday on August 12, 2018. He seeks three
million dollars in damages from McKay for emotional trauma
and aggravation of his PTSD, depression, and anxiety symptoms
during his three years as a foster child in Arizona, and one
million dollars in punitive damages from VanGerpen for
negligence of responsibility as a state mandated reporter.
matter comes before the undersigned for consideration of a
Motion for Extension, Service, and Leave to Prepare
Summonses. (Dkt. 11.) Plaintiff seeks an extension of time to
confer with counsel for defendants and on any deadline for a
conference, leave to prepare summonses for defendants, and
service of process by a United States marshal. Having
considered these requests, the Court finds and concludes as
Court construes plaintiff's motion as a request for
service pursuant to Federal Rule of Civil Procedure 4(c)(3),
which requires, “[a]t the plaintiff's request,
” service by a United States marshal, deputy marshal,
or someone specially appointed by the court where the
plaintiff is authorized to proceed IFP. See also Boudette
v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991)
(“An IFP plaintiff must request that the marshal serve
his complaint before the marshal will be responsible for such
service. Boudette did not request service by the marshal and
so remained responsible for timely service.”) Plaintiff
herein proceeds IFP and requests service of process by United
a complaint filed pursuant to the IFP provisions of 28 U.S.C.
§ 1915 is subject to a mandatory and sua sponte review
by the Court, and dismissal is warranted if the Court finds
the complaint is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant immune from such relief. §
1915(e)(2)(B). See also Calhoun v. Stahl, 254 F.3d
845, 845 (9th Cir. 2001) (“[T]he provisions of 28
U.S.C. § 1915(e)(2)(B) are not limited to
prisoners.”). In this case, the Court finds an order
directing service premature given deficiencies in
plaintiff's complaint. The Court will, accordingly, only
address the request for service if plaintiff shows cause as
Federal Rule of Civil Procedure 8 (a)(2) requires that a
pleading contain a short and plain statement of the claim
showing plaintiff is entitled to relief. “Each
allegation must be simple, concise, and direct.”
Fed.R.Civ.P. 8 (d)(1). The complaint must give defendants
fair notice of the claim and the grounds upon which it rests.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Although it need not provide detailed factual
allegations, the complaint must give rise to something more
than mere speculation that plaintiff has a right to relief.
Id. Plaintiff must provide more than conclusory
allegations; he must set forth specific, plausible facts to
support his claims. Ashcroft v. Iqbal, 556 U.S. 662,
678-83 (2009). “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. at 678.
seeks to proceed under 42 U.S.C. § 1983. To sustain a
§ 1983 claim, plaintiff must show (1) he suffered a
violation of rights protected by the Constitution or created
by federal statute, and (2) the violation was proximately
caused by a person acting under color of state or federal
law. West v. Atkins, 487 U.S. 42, 48 (1988);
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
1991). The Court finds plaintiff's complaint deficient in
Plaintiff alleges violation of his rights under the
McKinney-Vento Homeless Assistance Act of 1987. 42 U.S.C.
§ 11301 et. seq. This federal law addresses
“the critically urgent needs of the homeless, ”
§ 11301(b)(2), including ensuring “equal access to
the same free, appropriate public education . . . as provided
to other children and youths.” § 11431(1).
Although the Act itself does not provide a mechanism for
civil enforcement of the rights it provides, courts have held
a plaintiff may, at least in certain circumstances, enforce
those rights by invoking § 1983. See Lampkin v.
District of Columbia, 27 F.3d 605, 612 (D.C. Cir. 1994);
Nat'l Law Ctr. on Homelessness & Poverty, R.I. v.
N.Y., 224 F.R.D. 314, 318 (E.D.N.Y. 2004).
does not identify the provision under which he alleges a
violation of his rights. He may seek to challenge the fact he
was not returned to his school of origin in Washington State.
See § 11432(g)(3)(A) (“The local
educational agency . . . shall, according to the child's
or youth's best interest - (i) continue the child's
or youth's education in the school of origin for the
duration of homelessness . . . or (ii) enroll the child or
youth in any public school that nonhomeless students who live
in the attendance area in which the child or youth is
actually living are eligible to attend.”) It is not
clear whether this provision applies to the facts of
plaintiff's case or whether it establishes a private
right of action. If plaintiff proceeds with this action, he
must clarify the basis for his claim, set forth specific,
plausible facts in support, and identify a viable defendant.
Plaintiff brings claims for damages against McKay in his
official capacity as the Director of the Arizona Department
of Child Safety. However, “[s]tate officers in their
official capacities, like States themselves, are not amenable
to suit for damages under § 1983.” Arizonans
for Official English v. Arizona, 520 U.S. 43, 69 n.24
(1997) (citing Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 and n. 10 (1989)). A claim
against a government official in his official capacity is
treated as a claim against the entity itself. Community
House, Inc. v. City of Boise, Idaho, 623 F.3d 945,
966-67 (9th Cir. 2010) (citing Kentucky v. Graham,
473 U.S. 159, 165-66 (1985)). The Eleventh Amendment serves
as a jurisdictional bar to actions for damages against a
state in federal court, and the state itself need not be a
named party for the Eleventh Amendment to
apply. Leer v. Murphy, 844 F.2d 628, 631
(9th Cir. 1988) (“If the suit requests that the federal
court order a state officer to pay funds from the state
treasury for his wrongful acts, the eleventh amendment bars
the suit because the state is the real party in
interest.”) (cited sources omitted). Plaintiff
therefore may not pursue his official capacity claims against
Local government officials may be liable in their official
capacities under § 1983 where their “action
pursuant to official municipal policy of some nature caused a
constitutional tort.” Monell v. Department of Soc.
Servs., 436 U.S. 658, 691 (1978). Because the real party
in interest in an official-capacity suit is the governmental
entity and not the named official, “the entity's
‘policy or custom' must have played a part in the
violation of federal law.” Graham, 473 U.S. at
166 (citation omitted). In this case, while plaintiff brings
suit against VanGerpen in his official capacity, he does not
identify a policy or custom that played a role
VanGerpen's actions or omissions. Plaintiff instead
alleges VanGerpen failed to follow applicable policy and/or
law. As such, plaintiff's official capacity claims
against VanGerpen may not proceed.
Individuals can be held personally liable under § 1983.
Id. at 165. See alsoHafer v.
Melo, 502 U.S. 21, 30-31 (1991) (Eleventh Amendment does
not bar suit against state officials sued in their personal
capacities). There is, however, no indication plaintiff seeks