Hagos v. Goodman

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA DANIEL TEKLEMARIAM HAGOS, CASE NO. 2:23-CV-433-RSL-DWC 11 Plaintiff, ORDER DECLINING TO SERVE 12 v. GOODMAN, HANNING, KING COUNTY JAIL, Defendants.

The District Court referred this action to United States Magistrate Judge David W.

Christel. Plaintiff Daniel Teklemariam Hagos, proceeding pro se and in forma pauperis, filed this civil rights complaint under 42 U.S.C. § 1983. Having reviewed and screened Plaintiff’s Complaint under 28 U.S.C. §1915A, the Court finds Plaintiff has failed to state a claim upon which relief can be granted, but provides Plaintiff leave to file an amended pleading by May 10, 2023, to cure the deficiencies identified herein.

1 I. Background 2 In the Complaint, Plaintiff, a pretrial detainee housed in the King County Jail (“Jail”), alleges Defendant Goodman, an employee of the Jail, verbally harassed Plaintiff and touched Plaintiff’s skin when putting a wristband on Plaintiff. Dkt. 1.

5 II. Discussion 6 Under the Prison Litigation Reform Act of 1995, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998).

13 To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).

19 To satisfy the second prong, a plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). A person subjects another to a deprivation of a constitutional right when committing an affirmative act, participating in another’s affirmative act, or omitting to perform an act which is legally required. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Sweeping conclusory allegations against an official are insufficient to state a claim for relief. Leer, 844 F.2d 3 at 633. Further, a § 1983 suit cannot be based on vicarious liability alone, but must allege the defendant’s own conduct violated the plaintiff’s civil rights. City of Canton v. Harris, 489 U.S. 5 378, 385-90 (1989).

6 In the Complaint, Plaintiff contends Defendant Goodman verbally harassed him on one occasion and touched Plaintiff’s skin when putting a wristband on Plaintiff. Dkt. 1. Plaintiff states Defendant Hanning failed to investigate the allegations regarding Defendant Goodman’s conduct.

9 Id. Allegations of verbal harassment and abuse are not sufficient to state a claim for relief under §1983. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Furthermore, Plaintiff’s complaints that Defendant Hanning did not properly investigate are conclusory and lack sufficient factual basis to state a claim. For these reasons, the Court finds Plaintiff has not alleged a constitutional violation.

14 Plaintiff has also named the King County Jail as a defendant. Dkt. 1. The Jail is not a legal entity capable of being sued under § 1983. Rather, King County, a municipality, would be the proper defendant. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Wright v. Clark County Sheriff’s Office, 2016 WL 18 1643988, *2 (W.D. Wash. April 26, 2016). To set forth a claim against a municipality, a plaintiff must show the defendant’s employees or agents acted through an official custom, pattern, or policy permitting deliberate indifference to, or violating, the plaintiff’s civil rights, or that the entity ratified the unlawful conduct. Id. at 690-91. A plaintiff must show (1) deprivation of a constitutional right; (2) the municipality has a policy; (3) the policy amounts to deliberate indifference to a plaintiff’s constitutional rights; and (4) the policy is the moving force behind the constitutional violation. See Oviatt v. Pearce, 954 F.3d 1470, 1474 (9th Cir. 1992).

1 Plaintiff has not named King County as a defendant and has not alleged facts to show King County is liable. See Dkt. 1. For example, Plaintiff does not challenge a policy, custom, or practice. If Plaintiff seeks to sue King County, he must name King County as a defendant and allege facts sufficient to meet the required elements of a claim against a municipality and show King County violated his constitutional rights.

6 In sum, the Court finds Plaintiff has not stated a claim upon which relief can be granted.

7 III. Instruction to Plaintiff and the Clerk 8 Due to the deficiencies described above, if Plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file an amended complaint and within the amended complaint, he must write a short, plain statement telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the person who violated the right; (3) exactly what the individual did or failed to do; (4) how the action or inaction of the individual is connected to the violation of Plaintiff’s constitutional rights; and (5) what specific injury Plaintiff suffered because of the individual’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976).

15 Plaintiff shall present the amended complaint on the form provided by the Court. The amended complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it should contain the same case number, and it may not incorporate any part of the original complaint by reference. The amended complaint will act as a complete substitute for the original complaint, and not as a supplement. An amended complaint supersedes the original complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part on other grounds, Lacey v. Maricopa County,693 F.3d 896 (9th Cir. 2012). Therefore, the amended complaint must be complete in itself and all facts and causes of action alleged in the proposed complaint that are not alleged in the amended complaint are waived. Forsyth, 114 F.3d at 1474.

1 The Court will screen the amended complaint to determine whether it contains factual allegations linking each Defendant to the alleged violations of Plaintiff’s rights. The Court will not authorize service of the amended complaint on any Defendant who is not specifically linked to a violation of Plaintiff’s rights.

5 If Plaintiff fails to file an amended complaint or fails to adequately respond to the issues raised herein on or before May 10, 2023, the undersigned will recommend dismissal of this action. The Clerk is directed to send Plaintiff a copy of this Order and the appropriate forms for filing a 42 U.S.C. § 1983 civil rights complaint and for service.

9 Dated this 7th day of April, 2023.

A David W. Christel Chief United States Magistrate Judge