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Gilbert v. Sinclair

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

June 4, 2019

KEVIN ABDUL GILBERT, et al., Plaintiffs,
v.
STEPHEN SINCLAIR, et al., Defendants.

          ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT

          THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE.

         This 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.

         DISCUSSION

         Standard of Review

         Under 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).

         The 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).

         Before 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).

         Section 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)).

         To 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. 2012).

         Purported Class Action

         Plaintiff 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).

         Because 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 is unrepresented.”).

         The 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.

         Personal ...


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