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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CELERINO CARRASCO,

Plaintiff,

v.

ALBERTO GONZALES, et al.,

Defendant.

Case No. C06-5106RBL

REPORT AND

RECOMMENDATION

Noted for September 29, 2006

This matter is before the court on plaintiff’s failure to respond to the court’s previous order. For

the reasons set forth below, I recommend that this complaint be dismissed as frivolous pursuant to 28

U.S.C. § 1915.

DISCUSSION

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 elements

are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020

(1986). 

Plaintiff 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.

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1981). A § 1983 suit cannot be based on vicarious liability alone, but must allege the defendants’ own

conduct violated the plaintiff’s civil rights. City of Canton v. Harris, 489 U.S. 378, 385-90 (1989). A

supervisor may be held liable only “if there exists either, (1) his or her personal involvement in the

constitutional deprivation, or (2) a sufficient causal connection between a supervisor’s wrongful conduct

and the constitutional violation.” Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th cir. 1991),

cert. denied 502 U.S. 1074 (1992).

Frivolous in forma pauperis complaints may be dismissed before service of process under 28

U.S.C. § 1915. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A complaint is frivolous if "it lacks an

arguable basis in law or in fact." Id. at 325. Leave to amend is not necessary where it is clear that the

deficiencies in the complaint cannot be cured by amendment. Franklin v. Murphy, 745 F.2d 1221, 1228

n.9 (9th Cir. 1984). Plaintiff's complaint should be dismissed as frivolous.

On February 16, 2006, the Court Clerk received plaintiff’s complaint along with an application to

proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. After curing deficiencies with his IFP,

the court granted the application, and on June 20, 2006, the court reviewed the complaint, which was

found to be deficient. The court specifically explained that plaintiff failed to show how a particular

individual defendant personally participated in an alleged violation. The court provided plaintiff the

opportunity to cure these deficiencies and/or to amend his complaint by not later than July 28, 2006. 

Plaintiff has failed to respond to the court’s order and the clerk has not received any further pleadings from

the plaintiff in this matter. 

CONCLUSION

Plaintiff’s complaint contains several fatal errors, and though he was given the opportunity to cure

those deficiencies by filing an amended complaint, plaintiff has failed to respond. Accordingly, the

undersigned recommends that the Court dismiss this complaint prior to service as frivolous pursuant to 28

U.S.C. §1915.

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

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for consideration on September 29, 2005, as noted in the caption. 

DATED this 6th day of September, 2006.

/s/ J. Kelley Arnold J. Kelley Arnold

United States Magistrate Judge

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