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28 ORDER-1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

WAYNE WALTON,

Plaintiff,

v.

THE STATE OF WASHINGTON et al.,

Defendants.

Case No. C05-5545RJB

ORDER TO AMEND THE

COMPLAINT 

This civil rights action has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. § 636(b)(1)(B). Plaintiff has been given leave to proceed in forma pauperis. (Dkt. #

3). 

The plaintiff in this action names Washington State, the Washington State Department of

Corrections, and the Mc.Neil Island Corrections Center as defendants. (Dkt. # 5). In order to state

a claim under 42 U.S.C. § 1983, a complaint must allege that (l) the conduct complained of was

committed by a person acting under color of state law and that (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

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28 ORDER-2

elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert. denied, 478

U.S. 1020 (1986).

None of the named defendants in this action are people. The Eleventh Amendment to the

Constitution of the United States provides: 

The Judicial power of the United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the United States by Citizens

of another State, or by Citizens or Subjects of any Foreign State. 

U.S. Const. amend. XI. Under the Eleventh Amendment, a state is not subject to suit by its own

citizens in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Neither states nor state

officials acting in their official capacities are persons for purposes of 42 U.S.C. § 1983. Will v.

Michigan Dept. of State Police, 491 U.S. 48, 71 (1989). This rule applies equally to state agencies. 

See Kaimowitz v. Board of Trustees of the Univ. of Ill., 951 F.2d 765, 767 (7th Cir. 1991); Johnson

v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991). Because the named defendants are not persons

within the meaning of § 1983, plaintiff has not stated a cause of action. 

The document submitted by plaintiff does not state a claim against any person and will not be

accepted. Plaintiff is ORDERED to file an amended complaint. The amended complaint will act as

a complete substitute for the original and must be received on or before October 7th, 2005 or the

court will enter a Report and Recommendation that this action be dismissed. Plaintiff is reminded

that he must also send filled out Marshals Service Forms and a copy of the amended complaint for

each defendant he wishes the Marshals Service to attempt to serve by mail.

The Clerk is directed to send a copy of this Order to plaintiff, and note the due date for the

amended complaint as October 7th, 2005.

DATED this 6th day of September, 2005.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

Case 3:05-cv-05545-RJB Document 5 Filed 09/07/05 Page 2 of 2