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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

WAYNE RICHARDSON,

Plaintiff,

v.

SANDRA CARTER, et al,

Defendants.

Case No. C06-5324FDB-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:

On June 8, 2006, plaintiff filed his complaint. On June 30, 2006, plaintiff filed a document titled:

“Information Supporting Statement of Claims Specifically How each individual defendant Named in this

petition violated Plaintiff [sic] Constitutional Rights” (“Information”). (Dkt. #4). Through that document, it

appeared plaintiff was attempting to amend the complaint he filed on June 8, 2006, by providing additional

information regarding the defendants named therein. However, because plaintiff must include all relevant

information and claims in one complaint document, the Court declined to serve his complaint. 

Instead, the Court informed plaintiff that if he desired to make the additional information contained in

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ORDER

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the Information he filed part of his original complaint, he must do so by filing an amended complaint,

consisting of one document that could be served on the named defendants, by no later than August 6, 2006. 

The Court further informed plaintiff that if he failed to file such an amended complaint by the above date, the

Court would treat only the original complaint he filed on June 8, 2006, without reference to the Information he

filed on June 30, 2006, as his complaint in this matter. 

On July 24, 2006, plaintiff responded to the Court’s order by filing a motion to disregard the

Information. (Dkt. #9). Accordingly, the Court shall do so. Plaintiff’s motion to disregard (Dkt. #9)

hereby is GRANTED. The Court shall treat plaintiff’s original complaint as his only complaint in this

matter. For the reasons set forth below, however, the Court finds that complaint to be deficient. 

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, 1448 (9th Cir. 1987) (citing Franklin

v. Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984)). 

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

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). 

Plaintiff alleges in his complaint that he was subject to disciplinary action in a manner contrary to

established Washington State Department of Corrections (“DOC”) policy, which resulted in a demotion of

his classification status. Along with monetary damages, plaintiff requests injunctive relief in the form of an

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Section 1983 reads in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for

redress.” 42 U.S.C. § 1983. 

ORDER

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order directing DOC to adhere to all “department” rules, regulations and procedures. Complaint, p. 5. 

However, although, plaintiff asserts in general that “defendants” violated his Fifth, Eighth and

Fourteenth Amendment rights (see Id.), he fails to set forth specific facts showing how each individual

defendant named in the complaint caused or personally participated in causing the harm alleged. For

example, while plaintiff presents some facts regarding the events in question with respect to defendants

Schneider, McTarsney and Heaward, those facts fail to show how these, or the other named defendants,

caused or personally participated in the alleged violation of his constitutional rights. 

In addition, as noted above, plaintiff has requested injunctive relief against DOC. However, under

the Eleventh Amendment to the United States Constitution, a state is not subject to suit by its own citizens

in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). A state agency, as an arm of the state,

is immune from suit in federal court under the Eleventh Amendment as well. Howlett v. Rose, 496 U.S.

356, 365 (1990); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70 (1989). An entity that has

Eleventh Amendment immunity also is not a “person” within the meaning of 42 U.S.C. § 1983.1 Howlett,

496 U.S. at 365. Because DOC is a state agency, it is immune from liability here. 

In addition, “[i]t is elementary that one is not bound by a judgment in personam resulting from

litigation in which he is not designated as a party or to which he has not been made a party by service of

process.” Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969). In other words, “a court has

no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the

defendant.” Id. Here, plaintiff has not named DOC as a defendant in this case. As such, the Court has no

power to grant plaintiff the relief he requests to the extent that relief concerns injunctive or declaratory

relief with respect to DOC. Even if the Court did have such power, however, again, as just discussed,

DOC possesses Eleventh Amendment immunity here. 

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 September 14, 2006. The amended complaint must carry

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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 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 14th day of August, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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