United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT
Theresa L. Fricke United States Magistrate Judge
matter is before the Court on plaintiff's filing of a
civil rights complaint. Plaintiff has applied for in
forma pauperis status in this matter and is proceeding
pro se. Considering deficiencies in the complaint
discussed below, however, the undersigned will not grant
plaintiff's IFP motion or direct service of the complaint
at this time. On or before May 17, 2019, plaintiff must
either show cause why this cause of action should not be
dismissed or file an amended complaint.
of Private Party
cannot sue private actors like Believe in Recovery in a
federal 42 U.S.C. § 1983 case. To state a claim under
§ 1983, a complaint must allege: (i) the conduct
complained of was committed by a person acting under color of
state law and (ii) the conduct deprived a person of a right,
privilege, or immunity secured by the Constitution or laws of
the United States. Parratt v. Taylor, 451 U.S. 527,
535, overruled on other grounds, Daniels v.
Williams, 474 U.S. 327 (1986). Generally, private actors
are not acting under color of state law. See Price v.
Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).
determine whether a private actor acts under color of state
law for § 1983 purposes, the Court looks to whether the
conduct causing the alleged deprivation of federal rights is
“fairly attributable” to the state.
Price, 939 F.2d at 707-08. Conduct may be fairly
attributable to the state where (1) it results from a
governmental policy and (2) the defendant is someone who
fairly may be said to be a governmental actor. Sutton v.
Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th
Cir. 1999). A private actor may be considered a governmental
actor if the private actor conspires with a state actor or is
jointly engaged with a state actor when undertaking a
prohibited action. Tower v. Glover, 467 U.S. 914,
920 (1984). Receiving federal funding and being required to
follow certain federal regulations does not turn a private
entity into a government actor. See Witmer v. Greater
Lakes Mental Healthcare, No. C15-5039 BHS, 2016 WL
1161689, at *3 (W.D. Wash. 2016) (unpublished).
Plaintiff has not alleged facts from which it may be fairly
determined that Believe in Recovery was acting under color of
state law. According to the complaint, defendant is not a
state actor but a private business. Dkt. 5-2, p. 3. In
addition, plaintiff makes no allegations that defendant
conspired or acted in concert with a state actor. Plaintiff
therefore must show cause why his claims should not be
dismissed on this basis.
to State a Claim
Federal Rule of Civil Procedure 8(a), a complaint must
contain “a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.”
Plaintiff must allege a plausible set of facts that would
show he is entitled to any relief.
Court must dismiss the complaint of a prisoner proceeding
in forma pauperis “at any time if the [C]ourt
determines” that the action: (a) “is frivolous or
malicious”; (b) “fails to state a claim on which
relief may be granted”' or (c) “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. §§ 1915(e)(2), 1915A(a),
(b). A complaint is frivolous when it has no arguable basis
in law or fact. Franklin v. Murphy, 745 F.2d 1221,
1228 (9th Cir. 1984).
the Court may dismiss the complaint as frivolous or for
failure to state a claim, it “must provide the
[prisoner] with notice of the deficiencies of his or her
complaint and an opportunity to amend the complaint prior to
dismissal.” McGucken v. Smith, 974 F.2d 1050,
1055 (9th Cir. 1992). Leave to amend need not be granted,
however, “where the amendment would be futile or where
the amended complaint would be subject to dismissal.”
Saul v. United States, 928 F.2d 829, 843 (9th Cir.
1991) (internal citation omitted).
state a § 1983 claim, a plaintiff must both: (1) allege
his or her federal constitutional or statutory rights were
violated, and (2) show a person acting under color of state
law deprived him or her of those rights. Naffe v.
Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015); Tsao
v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir.
2012). Section 1983 is the appropriate avenue to remedy an
alleged wrong only if both of these elements are present.
Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.
1985). The plaintiff must show that the defendant personally
participated in the alleged deprivation of federal
constitutional or statutory rights. Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002); OSU
Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir.
plaintiff names only Believe in Recovery as a defendant. Dkt.
5-2, p. 2. He alleges that defendant is a private company
that provides courts in Jefferson County with evaluations for
drug and alcohol treatment, and that the company has refused
him service and not returned his calls. Dkt. 5-2, p. 3. He
alleges that the company has done so because it is
“prejudiced against” him based on allegations he
has made about “their sister agency” and because
of certain personal attributes, including his
“resistance to conforming to either cultural
exceptionalism or American Exceptionalism” and his
“not conforming to any scheme from which categorical
authority and or adherence to the Golden rule might be
consciously, systematically and knowingly debased.”
noted above, plaintiff fails to set forth facts to show
defendant was acting under color of state law ...