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 been granted in
forma pauperis status in this matter and is proceeding
pro se. Considering deficiencies in the complaint
discussed below, however, the undersigned will not direct
service of the complaint at this time. On or before June 21,
2019, plaintiff must either show cause why this cause of
action should not be dismissed or file an amended complaint.
of Private Party
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1161689, at *3 (W.D. Wash. 2016) (unpublished).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 Discovery Behavioral Health was acting under
color of state law. While plaintiff refers to the
organization as an “agency, ” defendant appears
to be not a state actor but a private business that provides
counseling services to jail inmates. Dkt. 1-1, 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.
Federal Rule of Civil Procedure (FRCP) 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.
plaintiff's complaint is not “a short and plain
statement of the claim showing that the [plaintiff] is
entitled to relief.” FRCP 8(a). It contains numerous
accusations and anecdotes- pertaining to individuals and
entities who are not parties in this case-that have no
apparent connection to facts that would support
plaintiff's claim. These digressions prevent the Court
from assessing whether the complaint alleges facts that would
show plaintiff is entitled to relief.
to State a Claim
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 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