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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JOSEPH HERNDON,

Plaintiff,

v.

ARNP G. DURANO, et al,

Defendants.

Case No. C06-5154RJB-KLS

ORDER TO SHOW CAUSE

This matter has been referred to Magistrate Judge Karen L. Strombom pursuant to 28 U.S.C. §

636(b)(1), Local Magistrates Rules MJR 3 and 4, and Rule 72 of the Federal Rules of Civil Procedure. 

The case is before the Court upon the Court’s review of the complaint. After reviewing the complaint and

the balance of the record, the Court finds and orders as follows:

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). The court “may act on its own initiative to note the inadequacy of a complaint

and dismiss it for failure to state a claim” upon which relief may be granted. Wong v. Bell, 642 F.2d 359,

361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, s 1357 at 593 (1969));

see also Sparling v. Hoffman Construction Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Omar v. Sea-Land

Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987) (court may sua sponte invoke Federal Rule of Civil

Procedure (“Fed. R. Civ. P. 12(b)(6)”) to dismiss deficient complaint); Crawford v. Bell, 599 F.2d 890,

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ORDER

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893 (9th Cir. 1979).

The court must give the plaintiff both “notice of its intention to dismiss” and “some opportunity to

respond,” however, unless the plaintiff “cannot possibly win relief.” Sparling, 864 F.2d at 638 (quoting

Wong, 642 F.2d at 362)). Thus, before the Court “may dismiss a pro se complaint for failure to state a

claim, it “must provide the pro se litigant with notice of the deficiencies of his or her complaint and an

opportunity to amend the complaint prior to dismissal.” McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir.

1992); see also Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987) (district court erred by not notifying

pro se prisoner litigant of amended complaint’s deficiencies and allowing him leave to amend). 

Accordingly, while the Court finds that dismissal of plaintiff’s complaint under Fed. R. Civ. P. 12(b)(6) is

proper for the reasons set forth below, the court is issuing this order to show cause to give plaintiff an

opportunity to file a response.

The court’s review under Fed. R. Civ. P. 12(b)(6) is limited to the complaint. Lee v. City of Los

Angeles, 250 F.3d 668, 688 (9th Cir. 2001). All material factual allegations contained in the complaint “are

taken as admitted” and the complaint is to be liberally “construed in the light most favorable” to the

plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Lee, 250 F.3d at 688. A complaint should not

be dismissed under Fed. R. Civ. P. 12(b)(6), furthermore, “unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355

U.S. 41, 45-46 (1957). 

Dismissal under Fed. R. Civ. P. 12(b)(6) may be based upon “the lack of a cognizable legal theory

or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1990). Vague and mere “[c]onclusionary allegations, unsupported by

facts” are not sufficient to state a claim under 42 U.S.C. § 1983. Jones v. Community Development

Agency, 733 F.2d 646, 649 (9th Cir. 1984); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). Thus,

even though the Court is to construe the complaint liberally, such construction “may not supply essential

elements of the claim that were not initially pled.” Pena, 976 F.2d at 471. 

 To state a claim under 42 U.S.C. § 1983, a complaint must allege: (i) the conduct complained of

was committed by a person acting under color of state law and (ii) 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

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ORDER

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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). 

Plaintiff also must allege facts showing how individually named defendants caused or personally

participated in causing the harm alleged in the complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir.

1981). 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 section 1983 claim. Padway v.

Palches, 665 F.2d 965, 968 (9th Cir. 1982).

In his complaint, plaintiff alleges a denial of proper medical treatment while in the custody of the

Washington State Department of Corrections in violation of the Eighth and Fourteenth Amendments to the

United States Constitution. Plaintiff, however, has failed to set forth any facts showing how any of the

individual defendants named in the complaint’s caption were acting under color of state law, or caused or

personally participated in causing the harm alleged. Indeed, none of those individually-named defendants

are mentioned anywhere in the body of the complaint. As such, the complaint is fatally deficient. 

Due to the deficiencies described above, the Court will not serve the complaint. Plaintiff shall file

an amended complaint, curing, if possible, the above noted deficiencies, or show cause explaining why this

matter should not be dismissed by no later than July 23, 2006. The amended complaint must carry the

same case number as this one. If an amended complaint is not timely filed or if plaintiff fails to adequately

address these issues, the Court will recommend dismissal of this action as frivolous pursuant to 28 U.S.C.

§ 1915, and such dismissal will count as a “strike” under 28 U.S.C. § 1915(g). 

Plaintiff is advised that an amended pleading operates as a complete substitute for an original

pleading. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (citing Hal Roach Studios, Inc. v.

Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (as amended), cert. denied, 506 U.S. 915

(1992). Thus, if plaintiff chooses to file an amended complaint, the Court will not consider his original

complaint.

The Court further notes that plaintiff attached to his original complaint some 193 exhibits totaling

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Plaintiff has requested in his supplemental complaint (Dkt. #1) and motion for appointment of counsel that the Court

seal those records. (Dkt. #8). The Court has addressed that request in its order denying his motion for appointment of counsel.

See Order Denying Plaintiff’s Motion for Appointment of Counsel, dated the same date herewith. 

ORDER

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215 pages of what appear to be mostly personal medical records.1 Should he choose to file an amended

complaint in response to this Order, plaintiff should be aware of the applicability of Federal Rule of Civil

Procedure (“Fed. R. Civ. P.”) 8, which states in relevant part that “[a] pleading which sets forth a claim for

relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). 

The Clerk is directed to send plaintiff the appropriate forms so that he may file an amended

complaint. The Clerk is further directed to send a copy of this Order and a copy of the General Order to

plaintiff.

DATED this 23rd day of June, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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