United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR AMEND COMPLAINT
Theresa L. Fricke, United States Magistrate Judge.
matter comes before the Court on plaintiff's filing of a
civil rights complaint. Dkt. 5. Plaintiff has been granted
leave to proceed in forma pauperis. Dkt. 4. In light
of the deficiencies in the complaint, the undersigned will
not direct service of the complaint at this time. Plaintiff
will be provided the opportunity by November 15, 2019 to show
cause why the complaint should not be dismissed or file an
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. § 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.
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 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).
alleges that in 2016 he was involved in a road rage incident
wherein he was assaulted and fled the scene in fear of his
own safety and the safety of his son. Dkt. 5 at p. 3. The
complaint states that during this incident, as plaintiff was
fleeing, one of the alleged assailants was injured resulting
in the amputation of the person's lower leg. Id.
As a result of this incident plaintiff was convicted
“of acting with intent to commit First Degree Assault
as a hate crime.” Id.
alleges that he was wrongfully convicted. Id.
Plaintiff contends that the facts and eyewitness testimony do
not support the conviction. Id. Plaintiff further
alleges that the State attained a false conviction against
plaintiff by purposefully altering evidence, fabricating
evidence and concealing exculpatory evidence. Id.
U.S.C. § 1983
U.S.C. § 1983 “affords a ‘civil remedy'
for deprivation of federally protected rights caused by
person acting under color of state law.” Parratt v.
Taylor, 451 U.S. 527, 535 (1981) overruled in part
on other grounds by Daniels v. Williams, 474 U.S. 327
(1986). To state a claim under Section 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.
Id. 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.
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
complaint fails to state a cause of action under Section
1983. Plaintiff's complaint relies on vague and
conclusory allegations of wrongdoing without providing
factual allegations supporting these claims. Dkt. 5 at p.
3-4. Plaintiff's complaint alleges that the
“State” altered evidence, fabricated evidence and
concealed evidence. Id. Plaintiff's complaint
also identifies evidence that was allegedly altered or
fabricated. Id. However, plaintiff does not identify
a specific person who purportedly altered the evidence; nor
does plaintiff describe any acts or omissions, or causation
-- i.e., how any state official's actions (or failure to
act) deprived plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States.
Plaintiff also fails to identify any person who acted under
color of state law to violate plaintiff's federally
purposes of Section 1983, neither a state nor its officials
acting in their official capacities constitute a
“person.” Will v. Michigan, 491 U.S. 58,
64 (1989). Additionally, 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 Dep't of
Transportation, 96 F.3d 420, 421 (9th Cir. 1996).
Therefore, neither the state nor an official acting in their
official capacity can be sued for damages pursuant to Section
complaint vaguely alleges that the “State”
violated his federally protected rights. To the extent that
plaintiff is naming the state of Washington as a defendant in
this Section 1983 action, the state of Washington is both an
improper defendant under Section 1983 and immune from
plaintiff's claims 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, ...