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Pleasant v. Warner

United States District Court, W.D. Washington, Tacoma

June 4, 2019

DONALD PLEASANT, Plaintiff,
v.
ALISA WARNER, et al., Defendants.

          ORDER TO SHOW CAUSE OR AMEND COMPLAINT AND DENYING MOTION FOR APPOINTMENT OF COUNSEL

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE

         Plaintiff Donald Pleasant, proceeding pro se and in forma pauperis (Dkts. 4, 5), brings this matter under 42 U.S.C. § 1983. The District Court has referred this matter to United States Magistrate Judge J. Richard Creatura under 28 U.S.C. § 636(b)(1)(A), (1)(B) and Local Magistrate Judge Rules MJR 1, 3, and 4. See Dkt. 2.

         Having reviewed and screened plaintiff's complaint under 28 U.S.C. § 1915A, the Court declines to serve the complaint because plaintiff has yet to sufficiently make a claim for relief under § 1983. Although plaintiff alleges that defendants violated his rights by falsifying an allegation of sexual harassment and then ignoring exonerating evidence at his hearing on the matter, he fails to identify particular constitutional rights or the elements of any particular cause of action under § 1983 against most defendants. And although plaintiff does identify “due process”-presumably procedural-as the basis of his claim against a hearing officer, defendant Klepps, plaintiff fails to identify how he was deprived of a protected interest for procedural due process purposes.

         The Court provides plaintiff leave to file an amended pleading by July 5, 2019 to cure the deficiencies identified herein. The Court also denies plaintiff's motion for appointment of counsel without prejudice.

         BACKGROUND

         Plaintiff, who is incarcerated at Olympic Corrections Center (“OCC”), brings claims under § 1983 against Jason Bennett, OCC's superintendent; Alisa Warner and M. Canning, OCC corrections officers; Michelle Klepps, a hearing officer; Sergeant William Johnson; and Michelle Walker, a Department of Corrections official. See Dkt. 5, at 2-3.

         Plaintiff alleges that in September 2018, defendants Warner and Canning falsely accused plaintiff and three other African-American prisoners of sexual harassment based on a wardrobe malfunction that plaintiff suffered. See Dkt. 5, at 3. He further alleges that defendant Klepps violated due process by disregarding video evidence that would exonerate plaintiff, instead making her decision based upon an incomplete investigation. See Dkt. 5, at 3. He alleges that defendant Bennett concurred in this decision based upon incomplete investigation despite being “unable to make [a] fair judgement.” Dkt. 5, at 3. Finally, plaintiff alleges that defendant Walker failed to respond to calls or mail that plaintiff apparently directed to her. See Dkt. 5, at 3.

         Plaintiff requests “trial and compensation for falsified investigation and decision, adversity [sic] action against me.” Dkt. 5, at 4. Plaintiff has also requested that this Court appoint counsel to represent him. See Dkt. 6.

         DISCUSSION

         I. Screening

         A. General Principles

         Under the Prison Litigation Reform Act, the Court must screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Section 1915A(b) authorizes dismissal of “the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” See also 28 U.S.C. § 1915(e)(2). Dismissal at the screening stage should be with leave to amend the complaint, unless it is clear from the face of the complaint that no amendment could cure the deficiencies. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         B. Failure To State a Claim

         To obtain relief under § 1983, plaintiff must show that (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 law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a ยง 1983 claim is therefore to ...


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