United States District Court, W.D. Washington, Tacoma
ORDER RE-ISSUING ORDER TO SHOW CAUSE OR AMEND THE
Theresa L. Fricke, United States Magistrate Judge.
matter is before the Court on plaintiff's filing of a
civil rights complaint. Plaintiff has been granted in
forma pauperis status in this matter and is proceeding
pro se. On August 15, 2019, the Court granted
plaintiff's motion to proceed in forma pauperis and
issued an order notifying plaintiff of various deficiencies
in his complaint and directing plaintiff to show cause why
his complaint should not be dismissed or to file an amended
complaint on or before September 15, 2019. Dkt. 6. On August
15, 2019, the Clerk of Court mailed an Order Granting
Application to Proceed In Forma Pauperis and an
Order to Show Cause or Amend the Complaint to plaintiff.
See Dkt. 4, 6. The Order Granting Application to
Proceed In Forma Pauperis was returned as
undeliverable on August 26, 2019. Dkt. 7. The Order to Show
Cause or Amend the Complaint was returned as undeliverable on
September 4, 2019. Dkt. 8. By order dated September 23, 2019,
the Court directed plaintiff to notify the Court of his
current mailing address. Plaintiff has now provided the Court
with an updated address. Accordingly, the Court no re-issues
its order directing plaintiff to show cause or amend his
complaint with a new due date.
light of the deficiencies in several of the claims in the
complaint discussed below, the undersigned will not direct
service of plaintiff's complaint at this time. Plaintiff,
though, will be provided the opportunity to show cause why
certain claims should not be dismissed or to file an amended
complaint, on or before November 8, 2019.
raises three claims in his complaint: (1) defendant Caleb
Baird violated his right to equal protection by
discriminating against him based on his race by imposing a
significantly greater sanction against him for fighting than
his white counterpart received for the same offense; (2)
defendant Penny Sapp violated his right of meaningful access
to the courts because the Jail library is generally deficient
and he does not receive enough time in the library; (3)
defendant Kitsap County Prosecutor Chad M. Enright violated
his constitutional rights by charging him in district court
for the same crime for which he already received a jail
disciplinary sanction and “when no won [sic] read me my
rights or took a statement from me.” Dkt. 1-1.
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.” McGucken v. Smith, 974 F.2d 1050,
1055 (9th Cir. 1992); see also Sparling v. Hoffman
Constr., 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.
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). 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).
Court finds plaintiff has stated sufficient facts to warrant
a response from defendant with respect to his equal
protection claim. However, because plaintiff's claims
with respect to the prison library and against the Kitsap
County Prosecutor are deficient, as explained below, the
Court will not serve the complaint until plaintiff has had an
opportunity to cure the deficiencies in his other claims. If
plaintiff fails to show cause or file an amended complaint
curing the deficiencies in the complaint as described below,
the Court may recommend dismissal of the deficient claims and
direct service of the complaint only with respect to
plaintiff's equal protection claim.
Access to Courts
alleges his constitutional rights were violated because the
Jail library is generally deficient and he does not receive
enough time in the library. Dkt. 1-1. Inmates have a
“fundamental constitutional right of access to the
courts.” Bounds v. Smith, 430 U.S. 817, 828
(1977). In Bounds, the Supreme Court held the right
of access imposes an affirmative duty on prison officials to
assist inmates in preparing and filing legal papers, either
by establishing an adequate law library or by providing
adequate assistance from persons trained in the law.
Id. at 828. In Lewis v. Casey, 518 U.S. 343
(1996), the Supreme Court held a prisoner must show some
actual injury resulting from a denial of access in order to
allege a constitutional violation. Id. at 349.
establish he suffered an actual injury, plaintiff must show
“actual prejudice with respect to contemplated or
existing litigation, such as the inability to meet a filing
deadline or to present a claim.” Lewis, 518
U.S. at 348; Christopher v. Harbury, 536 U.S. 403,
415, (2002); Nevada Dep't of Corr. v. Greene,
648 F.3d 1014, 1018 (9th Cir. 2011); Phillips v.
Hurst, 588 F.3d 652, 655 (9th Cir. 2009). The right of
access to the courts is limited to non-frivolous direct
criminal appeals, habeas corpus proceedings, and § 1983
cases. See Lewis, 518 U.S. at 353 n. 3, 354-55.
“Failure to show that a ‘nonfrivolous legal claim