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 plaintiffs' filing of a
civil rights complaint. Plaintiffs have been granted in
forma pauperis status in this matter and are proceeding
pro se. Due to the 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, plaintiffs must either show cause why this cause of
action should not be dismissed or file an amended complaint.
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.”
Plaintiffs must allege a plausible set of facts that would
show they are entitled to some relief. The statement of the
claim must be sufficient to “give the defendant fair
notice of what the plaintiff's claim is and the grounds
upon which it rests.” Conley v. Gibson, 355
U.S. 41, 47 (1957). The factual allegations of a complaint
must be “enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In addition, a
complaint must allege facts to state a claim for relief that
is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
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
“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).
1983 creates liability for “[e]very person who, under
color of” state law deprives “any citizen . . .
or other person” of his or her “rights,
privileges, or immunities” secured by the United States
Constitution or other federal law. 42 U.S.C. § 1983. It
allows plaintiffs to “bring federal constitutional and
statutory challenges to actions by state and local
officials.” Naffe v. Frey, 789 F.3d 1030, 1035
(9th Cir. 2015) (quoting Anderson v. Warner, 451
F.3d 1063, 1067 (9th Cir. 2006)).
state a § 1983 claim, a plaintiff thus 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, 789 F.3d at 1035-36; 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
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.
Gilbert purports to bring this action on behalf of himself
and two other inmates-Reginald Wayne Wilton and Kenneth
Ramone Alston-who are co-plaintiffs and both signed the
complaint. Dkt. 1. The plaintiffs refer to themselves as
“class plaintiffs” throughout the complaint.
Id. But because Mr. Gilbert is proceeding pro se, he
has no authority to represent the legal interests of any of
the other parties. See Cato v. United States, 70
F.3d 1103, 1105 n.1 (9th Cir. 1995); Russell v. United
States, 308 F.2d 78, 79 (9th Cir. 1962).
he cannot represent others' legal interests, if any
persons besides the three plaintiffs who have signed the
complaint seek to pursue claims against the defendants, those
persons must also sign the complaint. See Fed. R.
Civ. P. 11 (“Every pleading, written motion, and other
paper must be signed . . . by a party personally if the party
Court declines to consider at this stage whether Wilton and
Alston, along with Gilbert, are a proper class under
Fed.R.Civ.P. 23, as plaintiffs have not had the chance to
remedy the deficiencies noted below.