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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

SIMON WILLIAMS, JR.,

Plaintiff,

v.

ATTORNEY MICHAEL EVANS, et al,

Defendants.

Case No. C06-5288RBL-KLS

THIRD ORDER TO SHOW

CAUSE REGARDING

DEFICIENT COMPLAINT

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 plaintiff’s amended complaint. (Dkt. #20). After

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

On June 6, 2006, the Court issued an order informing plaintiff of certain deficiencies in his original

complaint. (Dkt. #9). Specifically, the Court found plaintiff had failed to set forth facts showing his

attorney, whom he named as a defendant, was acting under color of state law or authority either as a state

official or as a willful participant in joint action with the state or any of its agents. Further, plaintiff

appeared to be challenging the fact or duration of his confinement, the proper remedy for which is a writ

for habeas corpus. That order was returned as undeliverable on June 8, 2006. (Dkt. #12). 

On July 13, 2006, plaintiff filed a notice of change of address with the Court. (Dkt. #13). Thus, on

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ORDER

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July 17, 2006, the Court issued a second order to show cause to give plaintiff another opportunity to cure,

if possible, the deficiencies in his original complaint. In response, on August 21, 2006, plaintiff filed his

amended complaint. That complaint, however, remains 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). 

A defendant has acted under color of state law if he “exercise[s] power ‘possessed by virtue of

state law and made possible only because the wrongdoer is clothed with the authority of state law.’”

Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997) (quoting West v. Atkins, 487 U.S. 42, 49, 108

S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct.

1031, 1043, 85 L.Ed. 1368 (1941)). In general, private parties do not act under color of state law. Price v.

State of Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). A plaintiff may bring a claim against a private party

under 42 U.S.C. § 1983, however, “who ‘is a willful participant in joint action with the State or its

agents.’” Degrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) (citing Dennis v. Sparks, 449

U.S. 24, 27-28 (1980) (“Private persons, jointly engaged with state officials in the challenged action, are

acting ‘under color’ of law for purposes of § 1983 actions.’”). 

To establish such joint action, facts showing defendants “acted ‘under color of state law or

authority’” must be alleged. Degrassi, 207 F.3d at 647 (citation omitted); United Steelworkers v. Phelps

Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (to prove conspiracy between state and private

parties under section 1983, plaintiff must show agreement or “meeting of the minds” to violate

constitutional rights). In his amended complaint, plaintiff asserts his attorney was acting under color of

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ORDER

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state law because he was appointed his attorney by the Cowlitz County Superior Court. However, a public

defender does not act under the color of state law when performing the traditional functions of a lawyer as

counsel to a criminal defendant. Polk County v. Dodson, 454 U.S. 312, 325 (1981). As the basis for

liability, plaintiff states his attorney “checked the wrong commitment box” on his judgment and sentence

paperwork. Amended Complaint, p. 3. Such an action though comes well within those activities

traditionally considered those of a public defender. 

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). 

Here, however, plaintiff names defendants Dan Price, the Cowlitz County Corrections Center

Administrator, and Carol Porter, the Washington Corrections Center (“WCC”) Administrator, solely in

their supervisory capacities. Plaintiff bases defendant Price’s liability on the fact that he was “in charge” of

the Cowlitz County Corrections Center. Amended Complaint, p. 3. He also bases defendant Porter’s

liability merely on the fact that she was “responsible” for WCC “booking employees knowing the proper

procedures for booking inmates” into the WCC. Id. However, plaintiff has not set forth any facts showing

defendant Porter failed to properly implement any such procedures. Accordingly, he has failed to set forth

valid claims against these two defendants as well. 

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

second 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 24, 2006. Specifically, the second

amended complaint should include only those named defendants with respect to whom the Court has not

found plaintiff failed to set forth valid claims. The second amended complaint must carry the same case

number as this one. If a second 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

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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 a second amended

complaint. The Clerk is further directed to send a copy of this Order to plaintiff.

DATED this 24th day of August, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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