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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MICHAEL BURNHART, AKA (KELLY),

Plaintiff,

v.

HAROLD W. CLARK, et al,

Defendants.

Case No. C06-5326RJB-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). When a complaint is frivolous, fails to state a claim, or contains a complete

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ORDER

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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 names as defendants in his complaint, Harold W. Clark, the Secretary of the Washington

State Department of Corrections (“DOC”), and James Thatcher, the “director” of DOC. In his complaint,

plaintiff sets forth certain issues he has with the use of polygraph testing by DOC in general, and with

respect to his sentencing in particular. Plaintiff, however, has failed to set forth any facts showing how the

individual defendants named in his complaint participated or personally participated in the harm alleged. 

Indeed, it is not clear from the complaint what exactly the harm is plaintiff is alleging, let alone that he is

alleging a violation of federal law or his constitutional rights. To the extent plaintiff is naming defendants

Clark and Thatcher because they are the persons who are ultimately responsible for DOC’s policies and/or

the actions of its officials, as noted above, liability under section 1983 is unavailable on the basis of

supervisory responsibility or position. 

Finally, plaintiff appears to be seeking injunctive and/or declaratory relief concerning the use of

polygraph testing by DOC, and DOC’s policies and authority with respect thereto. 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

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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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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 10, 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 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

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plaintiff.

DATED this 10th day of August, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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