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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CELERINO CARRASCO,

 Plaintiff,

v.

CORRECTIONAL SERVICE

CORPORATION, et al.,

Defendants.

Case No. C06-5084RJB

REPORT AND

RECOMMENDATION

Noted for March 9, 2007

This § 1983 Civil Rights matter has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR

4. This matter comes before the court on Plaintiff’s response to the court’s Order dated January 5, 2007. 

For the reasons set forth below, the undersigned recommends dismissal of this lawsuit without prejudice

for failure to properly serve the complaint on defendants.

PROCEDURAL AND FACTUAL BACKGROUND

This matter was initiated by Plaintiff on or about January 30, 2006, when the Court Clerk received 

four different proposed complaints (Docs.1& 2). At the time Plaintiff was an immigration detainee in

custody at the Northwest Detention Center. A few days later the Court Clerk received two more proposed

complaints (Doc. 4 &5), along with a list of fourteen defendants (Doc. 6), and two applications to proceed

in forma pauperis. (Doc. 12 & 13). 

On February 15, 2006, the Clerk sent Plaintiff a letter explaining that his applications to proceed in

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forma pauperis were deficient, (Plaintiff failed to file the required Written Consent for Payment of Costs). 

Plaintiff attempted to correct the deficiency, and on May 1, 2006, the undersigned reviewed the matter. 

The court explained that the information Plaintiff provided to court to support his applications was

inconsistent. The court noted Plaintiff’s application failed to disclose any source of income while he was

detained at the Northwest Detention Center, but the detention center’s financial record indicated that he

regularly received monies, which were deposited in his account. The court further noted that Plaintiff was

no longer in custody, but had been deported to Mexico on or about February 28, 2006.

Due to the fact that Plaintiff’s applications for IFP were deficient and incomplete and because Plaintiff

was no longer in custody, but a free individual, the court concluded it should not impose the in forma pauperis

laws applicable to those that are in custody pursuant to 28 U.S.C. § 1915. The court directed plaintiff to either

pay the requisite filing fee of $250.00 or file an updated application to proceed in forma pauperis, based on his

current income and/or employment status in Mexico. 

On May 31, 2006, in response to the court’s order, Plaintiff filed an updated application to proceed in

forma pauperis. The application was presented on the form used for prisoners, but nonetheless, the court

reviewed the statements in the application, and on July 19, 2006, the undersigned granted his application. 

The court explained Plaintiff’s responsibilities to proceed with the case, stating: 

The clerk is directed to issue summonses, after submitted by plaintiff, to enable plaintiff to

properly serve copies of the complaint on each of the named defendants. Plaintiff, who is no

longer incarcerated or in custody, shall note that it is his responsibility to properly serve

copies of the complaint along with appropriate summons as required by Rule 4 of the

Federal Rules of Civil Procedure.

Doc. 23. On July 20, 2006, Plaintiff filed an Amended Complaint (Doc. 24).

Several months passed and on October 30, 2006, the undersigned reviewed the file to determine the

status of the case. It did not appear that Plaintiff had ever requested the Court Clerk to issue the

appropriate summonses and Plaintiff had not filed any proof of service of the complaint, thus, the court

issued an order allowing Plaintiff the opportunity to either perfect service or explain why more time to

allow for service should be granted (Doc. 27). Plaintiff failed to respond to the court’s order, and the

undersigned recommended dismissal of the matter (Doc. 28). 

On December 26, 2006, without knowledge of any objections filed by Plaintiff to the

recommendation, the Court adopted the court’s recommendation to dismiss this matter for failure to

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prosecute (dismissing the case without prejudice). However, on December 29, 2006, the Court Clerk

docketed two declarations submitted by Plaintiff on December 21, 2006. The Court considered Plaintiff’s

declarations as an attempt to show that he has properly served summonses and copies of the complaints on

the named defendants, and it referred the matter back to the undersigned magistrate judge. 

On January 5, 2007, the court reviewed the matter, specifically the declarations filed by Plaintiff on

December 21, 2007, and issued an order to show cause why the matter should not be dismissed for failure

to properly serve each defendant with a summons and copy of the complaint. In addition, the court

explained that the Amended Complaint was deficient. Specifically, the court noted that the Amended

Complaint did not appear to name proper defendants. The court noted that the Amended Complaint

named different individuals than the individuals Plaintiff was attempting to serve. Furthermore, the court

explained that the Amended Complaint did not specifically name individuals who personally participated in

depriving plaintiff of any U.S. Constitutional or federally protected rights. Plaintiff was directed to file

proof that the summonses and copies of the complaint have been properly served and a second amended

complaint, curing, if possible, the deficiencies noted by the court regarding proper defendants and personal

participation. See Doc. 33. 

On February 5, 2007, the Court Clerk received a pleading from Plaintiff entitled, “Proof certify of

service receipts and objection against order of dismissal.” After reviewing this document, and the balance

of the record, the undersigned submits this report, recommending dismissal of this matter for lack of

prosecution and frivolity.

DISCUSSION

 A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745

F.2d 1221, 1228 (9th Cir. 1984). When a complaint is frivolous, fails to state a claim, or contains a

complete defense to the action on its face, the court may dismiss an in forma pauperis complaint before

service of process under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 575 (9th Cir. 1987) (citing

Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)). A plaintiff must allege a deprivation of a

federally protected right in order to set forth a prima facie case under 42 U.S.C. §1983. Baker v.

McCollan, 443 U.S. 137, 140 (1979). 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

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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 elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.

1985), cert. denied, 478 U.S. 1020 (1986). Section 1915(e) of the PLRA requires a district court to

dismiss an in forma pauperis complaint that fails to state a claim. 28 U.S.C. § 1915; Barren v. Harrington,

152 F.3d 1193, 1194 (9th Cir.1998).

 Rules 4 of the Federal Rules of Civil Procedure govern how and when service of a summons and a

copy of the complaint is required to properly commence a civil action. Rule 4(c)(2) of the Federal Rules of

Civil Procedure clearly states that service of a summons shall be served together with copy of the

complaint and the plaintiff is responsible for service of a summons and complaint within the proper time

period. Rule 4(c). The rule further states that service “may be effected by any person who is not a party

and who is at least 18 years of age” (emphasis added). Exceptional steps must be taken to perfect service

when the defendant is a corporation, association, the U.S. government or governmental agencies. See

Rules 4(h), 4(i), and 4(j). In relevant part, FRCP 4(m) provides:

Time limit for service. If service of the summons and complaint is not made upon a

defendant within 120 days after the filing of the complaint, the court, upon motion or upon

its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to

that defendant or direct that service be effected within a specified time; provided that if the

plaintiff shows good cause for the failure, the court shall extend the time for service for an

appropriate period.

Rule 4(l) states, in relevant part, “If service is not waived [a procedure described in rule 4(d)] the person

effecting service shall make proof thereof to the court.” 

After carefully reviewing the standards set forth above and Plaintiff’s pleadings made in response to

the court’s concerns that a copy of the Amended Complaint along with a summons have not been properly

served on each defendant, the undersigned finds Plaintiff’s most recent documents and pleadings filed on

February 5, 2007, do not contain any kind of proof to suggest otherwise. The statements made by Plaintiff

show that he had receipts for sending something to Tacoma, Washington on September 23, 2006, allegedly

addressed to G.C. Wigen and C. Cheek at Correctional Service Corporation. This does not provide

sufficient proof that defendants received an appropriate summons, issued by the Court Clerk, along with a

copy of the Complaint and/or Amended Complaint. 

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The fact that Plaintiff is proceeding in forma pauperis does not relieve him of the duty to serve

summonses and copies of his complaint on defendants. Rule 4(c)(2) provides the option of allowing a

plaintiff to request that service be made by the U.S. Marshall, deputy Marshall, or other person or officer

specially appointed by the court, and that “Such appointment must be made when the plaintiff is authorized

to proceed in forma pauperis pursuant to 28 U.S.C. §1915 or is authorized to proceed as a seaman under

28 U.S.C. §1916.” Since passage of the Prisoner Litigation Reform Act (“PLRA”) 28 U.S.C. § 1915

specifically pertains to prisoners proceeding in forma pauperis. Thus § 1915(d) which states, “The officers

of the court shall issue and serve all process, and perform all duties in such cases” does not apply here. At

the time Plaintiff submitted his initial complaints, he was an immigration detainee; he was never a prisoner. 

At the time his application to proceed in forma pauperis was granted, he was living and residing in Mexico

without any of the restrictions or limitations the court would normally assign a prisoner litigant (or a

seaman). There are at least two Ninth Circuit cases that hold specifically that an immigration detainee

who is not facing criminal charges is not a "prisoner" under the PLRA. See Andrews v. King, 398 F.3d

1113 (9th Cir. 2005) (noting that in Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002) it had held that an

INS detainee who does not also face criminal charges is not a prisoner under 28 U.S.C. §1915). 

Local Rule CR 4(c) supplants the federal rule to certain extent. Local Rule CR 4(c) provides:

Except as provided for herein, the United States Marshals Service is relieved from any and

all civil process serving responsibilities within this district on behalf of private litigants. The

private litigant or attorney of record for the private litigant shall make appropriate

arrangements with a person authorized to serve process. Upon order of this court or

pursuant to an express statutory provision, however, the United States Marshals Service

shall make service of civil process on behalf of a private litigant or his attorney or record.

The undersigned is unaware of any express statutory provision that would apply in this case where Plaintiff

is a private litigant who happens to now reside in Mexico. He is responsible for properly serving a

summons and copy of his complaint or amended complaint on each of the defendants named. As noted

above, Plaintiff has failed to file sufficient proof of service in this matter.

The Amended Complaint fails to allege with sufficient specificity any violation of U.S.

Constitutional or federally protected rights. Plaintiff discusses the fact that he was engaged in a fight with

another inmate, but fails to state or show how any individual, acting under color of state law, intentionally

or recklessly allowed the fight to occur. Plaintiff makes further allegations that the fight or incident was

not properly investigated. These statements do not show or support any cognizable § 1983 claim.

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The court notes that Plaintiff contends he has properly attempted to serve two individuals, G.C.

Wigens and C. Cheek, at the Correctional Service Corporation, located in Tacoma, Washington. A review

of the Amended Complaint shows that neither of these individuals is named in the caption of the document,

nor in the space provided to name further individuals, where Plaintiff names the United States Government

as an additional defendant. See Doc. 24 at 3. The court notes that Plaintiff mentions Associated Warden

Cheek in the Statement of Claim portion of the Amended Complaint, but it is clear that such individual is

named only in his or her supervisory capacity. As explained in the court’s order to show cause, dated

January 5, 2007, a defendant cannot be held liable under 42 U.S.C. § 1983 solely on the basis of

supervisory responsibility or position. Monell v. New York City Dept. of Social Services, 436 U.S. 658,

694 n.58 (1978). A theory of respondeat superior is not sufficient to state a § 1983 claim. Padway v.

Palches, 665 F.2d 965 (9th Cir. 1982). Plaintiff has failed to address this deficiency or similar deficiencies

as directed by the court. 

CONCLUSION

Based on the foregoing, the Court should dismiss this matter without prejudice for failure to

properly serve defendants with a summons and copy of the complaint, or the Court should dismiss this

matter with prejudice because Plaintiff has failed to state any cognizable claim against any individual

personal participant. 

 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P.

6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v.

Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to

set the matter for consideration on March 9, 2007, as noted in the caption.

DATED this Monday, February 12, 2007.

 /s/ J. Kelley Arnold J. Kelley Arnold

United States Magistrate Judge

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