United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
Fraser Rotchford filed a civil rights complaint with this
Court on May 22, 2019. Plaintiff is proceeding pro
se and in forma pauperis in this matter, which
has been referred to the undersigned Magistrate Judge.
Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261
(1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR
4(a)(4). The Court declined to serve the complaint because it
contained numerous deficiencies. The Court ordered that he
either amend his complaint or show cause as to why it should
not be dismissed for failure to make a claim, giving
plaintiff until June 21, 2019, to correct the deficiencies in
his complaint. Dkt. 10. Plaintiff was further advised that if
the amended complaint was not filed or if it failed to
adequately address the deficiencies identified by the Court,
the undersigned would recommend dismissal of this action
under 28 U.S.C. § 1915, as frivolous or for failure to
state a claim, and the dismissal would count as a
“strike” under 28 U.S.C. § 1915(g).
Id. To date, plaintiff has not amended his complaint
or otherwise responded to the Court's order. For reasons
set forth below, plaintiff's complaint remains fatally
the undersigned recommends that the Court dismiss this action
without prejudice prior to service for failure to state a
claim upon which relief may be granted. Alternatively, if the
Court declines to adopt the above recommendation, the
undersigned recommends the action be dismissed without
prejudice based on plaintiff's failure to comply with a
court order and prosecute his case. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), as
amended (May 22, 1992) (“[T]he district court may
dismiss an action for failure to comply with any order of 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); 28 U.S.C. §
1915A(a), (b). A complaint is frivolous when it has no
arguable basis in law or fact. Franklin v. Murphy,
745 F.3d 1221, 1228 (9th Cir. 1984).
the Court may dismiss the complaint as frivolous or for
failure to state a claim, though, 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.” McGuckin v. Smith, 974 F.2d 1050,
1055 (9th Cir. 1992); see also Sparling v. Hoffman
Construction, Co., Inc., 864 F.2d 635, 638 (9th Cir.
1988); Noll v. Carlson, 809 F.2d 1446, 1449 (9th
Cir. 1987). On the other hand, 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) (citing Reddy v. Litton Indus., Inc., 912 F.2d
291, 296 (9th Cir.1990); Moore v. Kayport Package
Express, Inc., 885 F.2d 531, 538 (9th Cir.1989)).
state a claim under 42 U.S.C. § 1983, a complaint must
allege: (1) the conduct complained of was committed by a
person acting under color of state law, and (2) 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 (1981), overruled on
other grounds, Daniels v. Williams, 474 U.S.
327 (1986). 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.
Court identified several deficiencies in plaintiff's
complaint and provided him an opportunity to cure those
deficiencies as described below. Dkt. 10.
Failure to State a Claim
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).
complaint, 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. 9-1, p. 3.
In addition, plaintiff makes no allegations that defendant
conspired or acted in concert with a state actor.
plaintiff names only Discovery Behavioral Health as a
defendant. Dkt. 1-1, p. 2. From the facts alleged, it appears
that defendant is a private company that provides counseling
to some inmates at Jefferson County Jail. Dkt. 1-1, p. 3. As
noted above, plaintiff fails to set forth facts to show
defendant was acting under color of state law at the time of
the alleged harm.
appears to allege that defendant as an entity, or individuals
who were working for the defendant, denied him treatment
after he had been “the target of abuse at the jail in
2018.” Id. at pp. 3-4. However, plaintiff has
not identified specific acts and omissions of individuals who
work for the defendant entity. And he has not named such
individuals as defendants. See Castro v. City of Los
Angeles, 833 F.3d 1060, 1067-1072, 1073-78 (9th Cir.
2016) (en banc). In seeking to hold the entity liable, he has
not alleged a policy, pattern, or practice causing a
violation of his constitutional or statutory rights. Los
Angeles Ct., Cal. v. Humphries, 562 U.S. 29, 34 (2010).
He has not identified specific dates when individuals
committed their acts or omissions or when he was harmed by a
policy, pattern, or practice of the entity. And he has not
satisfied the requirement that he establish causation-by
showing that the acts or omissions of individual defendants,
or the policies, practices, or customs of an entity such as a
municipality, caused a constitutional deprivation. Castro
v. City of Los Angeles, 833 F.3d 1060, 1075.
construing the complaint, plaintiff does not allege specific
facts that, if true, would demonstrate a violation of any
federal constitutional or statutory right. Accordingly,
plaintiff has ...