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Slack v. Washington Department of Correction Care Review Committee

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

July 12, 2019

TOMMIE SLACK, Plaintiff,


          Theresa L. Fricke United States Magistrate Judge.

         This matter comes before the Court on plaintiff's filing of an application to proceed in forma pauperis and proposed civil rights complaint. (Dkt. 1). In light of the deficiencies in the complaint discussed herein, the undersigned will not direct service of the complaint at this time. Plaintiff will be provided the opportunity by the date below to show cause why the complaint should not be dismissed or file an amended complaint.

         The Court must screen and dismiss the complaint of a prisoner who seeks to proceed in forma pauperis “at any time if the[C]ourt determines” that the action: (a) “is frivolous”; (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.2d 1221, 1228 (9th. Cir. 1984).

         Before the Court may dismiss the complaint for failure to state a claim, it “must provide the [prisoner] with notice of the deficiencies in 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). 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). To state a claim under Section 1983, a complaint must allege: (1) the conduct complained of was committed by a person acting under the 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. Paratt v. Taylor, 451 U.S. 527, 535 (1981). 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. 1985).

         To state a claim under Section 1983, a plaintiff must set forth the specific factual bases upon which the plaintiff claims each defendant is liable. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1982). Vague and conclusory allegations of officials participating in a civil rights violation are not sufficient to support a claim under Section 1983. Ivey v. Board of Regents, 673 F.2d 266, 269 (9th Cir. 1982).

         Plaintiff alleges that that in September of 2018 he was experiencing “immobilizing pain in the upper left portion of his back.” (Dkt. 1 at 8.) Plaintiff indicates that as a result of this pain he filed a total of ten medical kites and six inmate grievances to receive medical attention. (Dkt. 1 at 8.) Plaintiff alleges that in November of 2018 the medical team at Clallam Bay Correction Medical took x-rays of plaintiff's back and prescribed him Salsalate. (Dkt. 1 at 8.) Plaintiff alleges that the lump causing the pain in his back was originally measured at 10 centimeters by 10 centimeters and had grown to 12 centimeters by 12 centimeters by November of 2018. (Dkt. 1 at 9.)

         Plaintiff indicates that he was issued an extra pillow in November of 2018 to alleviate the pressure and pain associated with the lump in his back. (Dkt. 1 at 9.) Plaintiff alleges that in December of 2018 he was threatened that if he did not stop making medical complaints he would “lose his DOSA Sentencing.” (Dkt. 1 at 9.)

         Plaintiff alleges that in February of 2019 “Health Service Manager (HSM) Goodenough” evaluated plaintiff and observed that plaintiff “could hardly move his left arm.” (Dkt. 1 at 18.) Plaintiff further alleges that Goodenough refused to look at the lump on plaintiff's back and referred the grievance to the Department of Corrections Head Quarters. (Dkt. 1 at 18.) Plaintiff states that following this evaluation, the “medical decision was to continue monitoring the lump and consider a biopsy.” (Dkt. 1 at 18.) Plaintiff states that he was not offered a surgical option and was instead “told to pursue medical care under DOC policy 600.020 Offender Paid Health Care.” (Dkt. 1 at 11.)

         Plaintiff alleges that after being denied a surgical option he was informed by the medical staff at the Department of Corrections Care Review Committee that “their hands are tied by all sorts of new rules and policies.” (Dkt. 1 at 11.) Next, plaintiff states that on June 5, 2019 prison security officers removed his extra pillow because his health status report (HSR) granting him the extra pillow had purportedly expired. (Dkt. 1 at 12.) Plaintiff alleges that the officers informed him that he would need to file a medical kite declaring an emergency to receive another pillow. (Dkt. 1 at 12.) Plaintiff alleges that his emergency medical kite was denied because he needed to wait for the approval of another HSR, which plaintiff indicates could take up to two weeks. (Dkt. 1 at 12.)

         I. Improper Defendant

         Plaintiff has identified the Washington Department of Corrections Care Review Committee as a defendant in this action. (Dkt. 1 at 1.)

         The Eleventh Amendment of the United States Constitution prohibits a private citizen from suing a state government in federal court without the state's consent. See, Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 446 (2004); Natural Resources Defense Council v. California Department of Transportation, 96 F.3d 420, 421 (9th Cir, 1996). The Eleventh Amendment immunity extends to state agencies. Howlett v. Rose, 496 U.S. 356, 365 (1990). Further, the Department of Corrections is not a proper defendant in this action as neither a state nor its officials acting in their official capacities are “persons” within the meaning of § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989).

         For these reasons, the Washington Department of Corrections is both an improper defendant in a Section 1983 action and immune under the Eleventh Amendment. To state a cause of action under Section 1983 plaintiff must name specific individuals (acting under color of state law) as defendants and must allege specific facts to show which individual acted or failed to act, and facts that would show that the act(s) or omission(s) caused the harm to the plaintiff that is allegedly a violation of a specific constitutional right.

         II. ...

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