1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JAMES ERNEST DICKERSON,

Plaintiff,

v.

CAROL PORTER, et al., 

Defendants.

Case No. C06-5302 FDB/KLS

ORDER TO SHOW CAUSE FOR

FAILURE TO STATE A CLAIM

AND FOR FAILURE TO

EXHAUST ADMINISTRATIVE

REMEDIES 

This civil rights action has been referred to United States Magistrate Judge Karen L. Strombom

pursuant to 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Plaintiff has been granted leave to proceed in

forma pauperis. Before the court for review is plaintiff’s proposed civil rights complaint in which plaintiff

purports to sue Carol Porter, C/O Black, Lt. Jacobs, and Law Librarian Thompson pursuant to 42 U.S.C.

§ 1983. However, plaintiff has failed to allege any conduct or request relief pursuant to § 1983. The court

finds that plaintiff must show cause why his complaint should not be dismissed for failure to state a claim. 

Additionally, plaintiff states that a grievance process is ongoing, but not complete. Accordingly, the court

finds that plaintiff must show cause why his complaint should not be dismissed for failure to exhaust his

administrative remedies.

A. Failure to State a Claim Under Section 1983

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

Case 3:06-cv-05302-FDB Document 11 Filed 08/03/06 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 2

(1986). 

Plaintiff must also 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 § 1983 claim. Padway v. Palches, 665

F.2d 965 (9th Cir. 1982).

 In his proposed civil rights complaint, plaintiff refers to an “attached document entitled motion to

file § 1983 civil lawsuit,” for an explanation of his allegations and the remedies he seeks. There is,

however, no such document attached to the proposed complaint. Neither is there contained anywhere in

plaintiff’s filing any allegations of conduct giving rise to constitutional violations under § 1983. 

B. Failure to Exhaust Administration Remedies

The Prison Litigation Reform Act (“PLRA”) requires exhaustion of administrative remedies prior

to filing a complaint in federal court. The relevant portion of the PLRA states:

No action shall be brought with respect to prison conditions under section 1983 of this title,

or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). 

This requirement “applies to all prisoners seeking redress for prison circumstances or occurrences.”

Porter v. Nussle, 534 U.S. 516, 520 (2002). Further, “[a]ll ‘available’ remedies” must be exhausted,

“[e]ven when the prisoner seeks relief not available in grievance proceedings.” Id. at 524. Inmates must

exhaust prison grievance remedies before filing suit if the grievance system is capable of providing any

relief or taking any action in response to the grievance. Booth v. Churner, 531 U.S. 956, 121 S. Ct. 1819,

1825 (2001). 

The Supreme Court recently reaffirmed this in Woodford v. Ngo. 548 U.S. ___, No. 05-416 at 1

(2006). In that case, the Court not only upheld the requirement that the inmates fully exhaust available

administrative remedies, but it also held that those attempts needed to be done in a timely manner. Id. at

11. 

Case 3:06-cv-05302-FDB Document 11 Filed 08/03/06 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 3

In his proposed civil complaint, plaintiff indicates that the grievance process is not complete. 

Accordingly, the record reflects that plaintiff filed this lawsuit prematurely and has not yet fully exhausted

his administrative remedies. Because plaintiff has apparently failed to exhaust his available administrative

remedies, plaintiff must show cause why this case should not be dismissed. 

Accordingly, it is ORDERED:

1. Plaintiff shall show cause why this complaint should not be dismissed. A response is due by

September 1, 2006. If plaintiff fails to file a response or the response shows the plaintiff cannot go

forward the court will enter a report and recommendation that the complaint be dismissed.

2. The Court Clerk is directed to send a copy of this Order to plaintiff.

DATED this 2nd day of August, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:06-cv-05302-FDB Document 11 Filed 08/03/06 Page 3 of 3