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to litigate pursuant to a special set of procedures. Case No. C04-5574-RBL, Dkt. Nos. 30, 76; see

also Case No. C06-5172-FDB, Dkt. No. 95. The Chief Judge has allowed this case to proceed.

Dkt. No. 3.

REPORT AND RECOMMENDATION

PAGE – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD SCOTT,

Plaintiff,

v.

KING COUNTY, et al.,

Defendant.

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Case No. C06-731-TSZ-JPD

REPORT AND RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff Richard Scott is a detainee housed at the Special Commitment Center on

McNeil Island in Steilacoom, Washington, who is proceeding pro se and in forma pauperis in

this 42 U.S.C. § 1983 action against King County and the “Jail Superintendent/Director.”1 

Plaintiff alleges that he suffered a variety of constitutional violations while being housed in the

King County Jail (“Jail”) in May 2006. Dkt. No. 16, 30. He seeks monetary damages of

$1,500 or $1,600 for each day these actions occurred. 

On August 1, 2006, this Court declined to serve plaintiff’s complaint because it failed

to state a claim upon which relief might be granted under 42 U.S.C. § 1983. Dkt. No. 18.

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REPORT AND RECOMMENDATION

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Accordingly, the Court granted plaintiff leave to amend his complaint, advising that if he chose

not to do so, dismissal might result. Dkt. No. 18. Rather than amend his complaint within the

time frame stated, plaintiff decided to appeal a miscellaneous aspect of his case to the Ninth

Circuit, which was ultimately dismissed for want of jurisdiction. See Scott v. King County,

Case No. 06-35749. For several months thereafter, plaintiff failed to amend his complaint or

otherwise contact the Court. Accordingly, the Court directed plaintiff to show cause why his

case should not be dismissed. Dkt. No. 29. Plaintiff has done so by filing an “Amended 1983

and Pendent Tort Claim.” See Dkt. No. 30. However, this most recent filing fails to correct

the deficiencies outlined by this Court in its Order Declining to Serve and Granting Leave to

Amend. See Dkt. No. 18 at 1-2. After careful consideration of the plaintiff’s amended

complaint, the governing law, and the balance of the record, the Court recommends that

plaintiff’s amended complaint be DISMISSED without prejudice.

II. DISCUSSION

Pursuant to 28 U.S.C. § 1915(e)(2)(B), this Court should dismiss an action if, among

other things, it is frivolous or if the complaint fails to state a claim upon which relief can be

granted. See 28 U.S.C. § 1915(e)(2)(B)(I)-(ii); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th

Cir. 1990). An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989).

Rule 8(a) of the Federal Rules of Civil Procedure requires plaintiffs to submit a

complaint “which sets forth . . . a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a). In order to state a claim for relief under 42

U.S.C. § 1983, a plaintiff must assert that he suffered a violation of rights protected by the

Constitution or created by federal statute, and that the violation was proximately caused by a

person acting under color of state or federal law. See Crumpton v. Gates, 947 F.2d 1418,

1420 (9th Cir. 1991); see also WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999)

(en banc). This requires a plaintiff to allege facts showing how the named defendant, as a state

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REPORT AND RECOMMENDATION

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actor, caused or personally participated in causing the harm alleged in the plaintiff’s complaint.

Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). Additionally,

although local government units can be sued as a “persons” under § 1983, they cannot be held

responsible for the acts of their employees under a theory of respondeat superior. See, e.g.,

Collins v. City of Hacker Heights, 503 U.S. 115, 122 (1992); Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690-91 (1978). Rather, a § 1983 plaintiff must demonstrate that the alleged

constitutional deprivation was the result of a “policy or custom” of the local government unit. 

City of Canton v. Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. at 690-91. 

Plaintiff has failed to meet these standards. Most importantly, plaintiff’s amended

complaint makes no reference to the new defendant listed in the caption, and provides no short

and plain explanation of how that individual, or any other individual, violated certain of

plaintiff’s constitutional rights. This repeated failure is fatal to plaintiff’s case. 

Some of plaintiff’s complaints—for example, the uncomfortable mattress claim, and the

Jail’s act of providing rags and spray bottles but not mops, brooms, or toilet brushes—are

simply not cognizable under § 1983. Other claims, such as the plaintiff’s vague claim that the

Jail’s public phones and collect calls infringe upon an unspecified constitutional right, have

been found deficient by the Ninth Circuit. See Johnson v. California, 207 F.3d 650, 656

(9th Cir. 2000) (per curiam) (concluding no right to a specific phone rate; and noting that any

constitutional right to telephone access “is subject to reasonable limitations arising from the

legitimate penological and administrative interests of the prison system”); Keenan v. Hall, 83

F.3d 1083, 1092 (9th Cir. 1996) (rejecting similar claim where plaintiff “did not specify

whether the alleged denial of telephone access was total, partial, or even occasional, and did

not allege that he was denied access for a specific emergency or call to his lawyer on an

occasion when he had a specific need.”).

Plaintiff also appears to allege that he is being (or was) denied access to the Jail’s law

library. This includes vague allegations that he was forced to make advanced requests to use a

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computer, and was not provided “writing paper or envelopes . . . other than 3 sheets.” Dkt.

No. 30 at 7, 9. Such complaints are properly construed as a denial of access to the courts. See

Lewis v. Casey, 518 U.S. 343, 351 (1996) (noting that because there is no “abstract,

freestanding right to a law library or legal assistance . . . meaningful access to the courts is the

touchstone, . . . and the inmate therefore must go one step further and demonstrate that the

alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a

legal claim”). Plaintiff has failed to meet this standard. To this end, not only has plaintiff filed

the present claim, but a docket report reflects that he has filed numerous civil rights lawsuits

against many of the same defendants, all of which have been dismissed. See, e.g., Scott v.

Weinberg, et al., Case No. C06-5172-FDB, Dkt. No. 95 (declaring plaintiff a vexatious litigant

and imposing a pre-filing bar order); see id. at 4-8 (listing 45 cases filed by plaintiff in this

district); Scott v. Bailey, Case No. C06-5173-RBL; Scott v. Davis, Case No. C06-1052-MJP;

Scott v. State of Washington, Case No. C06-462-JCC. Thus, assuming plaintiff’s allegations

are true, lack of access to a law library has not impeded his ability to file actions in federal

court. Indeed, the very fact that this suit is proceeding supports the conclusion that plaintiff is

not barred access to the law library under any King County Jail act, policy or custom. 

Furthermore, although plaintiff names King County as a defendant in the caption of this

case, his amended complaint does not refer to what might be considered an unconstitutional

“policy or custom” at the King County Jail, the Special Commitment Center, or any other

facility. Viewing his amended complaint with more than extreme liberality, it could be

construed to include a claim of a policy or custom of unfair internal grievance review by the

“Administrator” of the King County Jail. See Dkt. No. 30 at 6. That said, the general

contours of and exact problem with the grievance mechanism is not stated, nor is it clear what

constitutional or statutory right, if any, could be violated by this putative problem. See Monell,

436 U.S. at 690-91. Such a claim should likewise fail.

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REPORT AND RECOMMENDATION

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III. CONCLUSION

Plaintiff has failed to allege sufficient facts to state a claim for relief under § 1983.

Because of the deficiencies in plaintiff’s amended complaint, the Court recommends that this

case be DISMISSED without prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B) and Fed. R.

Civ. P. 12(b)(6). A proposed order of dismissal accompanies this Report and

Recommendation. If plaintiff believes that the deficiencies outlined herein can be cured by an

additional amendment to his amended complaint, he should lodge a second amended complaint

as a part of his objections, if any, to this Report and Recommendation. 

DATED this 1st day of February, 2008.

AJAMES P. DONOHUE

United States Magistrate Judge 

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