United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE
matter is before the court on plaintiff's filing of an
amended complaint pursuant to this court's prior order
(Dkt. 5). Plaintiff is proceeding pro se and in
forma pauperis in this matter, which has been referred
to Magistrate Judge Theresa L. Fricke. 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). For the reasons
set forth below, plaintiff's amended complaint remains
fatally deficient. Therefore the court recommends that this
action without prejudice prior to service for failure to
state a claim upon which relief may be granted.
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)).
Federal Rule of Civil Procedure (FRCP) 8(a), a complaint must
contain “a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.”
Plaintiff must allege a plausible set of facts that would
show he is entitled to any relief. To 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. 1985).
amended complaint, plaintiff alleges again that Kitsap County
Jail has a policy of increasing the prices sold in its
commissary to prisoners and their families. Dkt. 7 at 3. He
indicates that there is no notice to customers of the
commissary that funds will benefit the jail. Id., at
4. Plaintiff alleges that a great difference in price,
between the procurement price of the goods and the price at
which the goods are sold, indicates that the jail is
“fraudulently retaining funds” that would
rightfully go to the Keefe Commissary Network or Access
Securepak, from which the jail procures the goods sold to
inmates. Id., at 2. Plaintiff appears to allege that
the jail misleadingly claims not to have control over or any
interest in profits generated by the commissary. Plaintiff
has named Cindy Thurmon, Kitsap County Jail Administration
Secretary, as defendant, although his amended complaint does
not detail any acts linking her to alleged constitutional
violations. Id., at 1. The amended complaint
describes instead how the defendant refused to notarize the
plaintiff's original tort claim and told him he
“didn't know what he was talking about”
regarding the jail's finances. Id., at 5.
amended complaint has failed to present facts that rise to
the level of a constitutional violation warranting relief.
Plaintiff has attempted to reform his prior allegation of
price-gouging into an accusation that Kitsap County Jail is
defrauding the commissary of profits by overcharging
prisoners. However, as a prisoner who is a customer of the
commissary, plaintiff only has standing to argue the same
underlying alleged violation against him, and not fraud
against the Keefe Commissary Network or Access Securepak.
Therefore, the court construes plaintiff's amended
complaint as most properly presenting nearly the same facts
to argue essentially the same claim, that plaintiff's
rights have been violated by the price difference between
procurement and sale.
do not have a right to cheap commissary prices, whether
prices are set by the jail or the vendor. “Even if
Plaintiff is charged exorbitant amounts, no constitutional
claim is stated.” Register v. Helder, 2015
U.S. Dist. LEXIS 141216, *5, (W.D. Ark. July 30, 2015). See
Montgomery v. Mancuso, 2013 U.S. Dist. LEXIS 123266
(W.D. La. Aug. 23, 2013)(“The law is clear that inmates
have no constitutionally protected interest in purchasing
goods through the prison commissary at the cheapest price
possible”); McKnight v. Taylor, 2012 U.S.
Dist. LEXIS 166143, *17 (D.N.J. Nov. 20,
2012)(“Prisoners have no federal constitutional right
to purchase items from the jail commissary at any particular
price, or to restrain the vendor from charging exorbitant
has failed to show that his equal protection or due process
rights have been violated under the Fourteenth Amendment.
allegations might be construed as a constitutional violation
of the Eight Amendment, if only the facts indicated the
increased prices resulted in a deprivation of “the
minimal civilized measure of life's necessities.”
See Hudson v. McMillian, 501 U.S. 1, 9 (1992).
However, as plaintiff's complaint fails to allege any
such harms, he has not alleged any violation of a federal
constitutional or statutory right.