three-year statute of limitations for § 1983 2 actions
How later courts described this case
- three-year statute of limitations for § 1983 2 actions
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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10 BRENDA M. JOHNSON,
CASE NO. 3:20-cv-06031-RJB
11 Plaintiff,
ORDER TO SHOW CAUSE OR
12 v. AMEND PROPOSED COMPLAINT
13 UNITED STATES OF AMERICA, et al.,
14 Defendants.
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16 This matter is before the Court on plaintiff’s application to proceed in forma pauperis
17 (“IFP”), which the District Court has referred to the undersigned as authorized by Amended
18 General Order 02-19. See Dkt. 1.
19 Pursuant to 28 U.S.C. § 1915(e)(2), the Court may dismiss a proposed complaint where a
20 plaintiff seeks to proceed IFP and the proposed complaint fails to state a claim or is frivolous or
21 malicious. Here, although plaintiff qualifies financially to proceed IFP, her proposed complaint
22 fails to state a claim upon which relief can be granted, as discussed herein. The Court will
23 provide plaintiff with an opportunity to amend her proposed complaint to correct the deficiencies
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1 identified in this Order; however, the Court declines to rule on her IFP application until plaintiff
2 has done so. Moreover, failure to timely comply with this Order will result in a recommendation
3 that the matter be dismissed without prejudice.
4 BACKGROUND
5 In her proposed complaint, plaintiff names as defendants the United States of America
6 (“United States”), Electronic Transaction Consultants LLC (“ETC”), the Washington State
7 Office of Administrative Hearings, the Washington Department of Transportation (“WDOT”),
8 the United States Department of Transportation (“USDOT”), Pioneer Human Services, Catholic
9 Community Services, Emerald Queen Casino, the Washington State Department of Social and
10 Health Services (“DSHS”), the Washington State Department of Child Support, Tacoma Police,
11 Terry Lee Rembert (a Pierce County Corrections officer), Patrick Sherwood (a United States
12 administrative deputy), Travelers Insurance, Amazon, and the United States Department of
13 Justice (“USDOJ”). See Dkt. 1-1.
14 Although difficult to interpret, plaintiff appears to allege that her former employer ETC,
15 and two partnering organizations, the Office of Administrative Hearings and WDOT, retaliated
16 against her by terminating her employment after she complained about discriminatory and
17 harassing conduct. See Dkt. 1-1, at 2–3. Plaintiff brings claims against ETC, the Office of
18 Administrative Hearings, and WDOT for alleged violations of the Seventh and Fourteenth
19 Amendments; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”);
20 and the Equal Pay Act, 29 U.S.C. §206(d) (“EPA”). See Dkt. 1-1, at 1, 4–6. Plaintiff further
21 alleges that these defendants failed to disclose and/or comply with a contractual agreement and
22 acted negligently in terminating plaintiff’s employment. See id. at 4, 6.
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1 Separately, plaintiff also appears to allege that DSHS and the Department of Child
2 Support wrongfully terminated her HEN benefits, which resulted in the termination of her
3 residential lease between 2018 to 2019. See Dkt. 1-1, at 4. Plaintiff further alleges that she filed
4 an administrative complaint with the Office of Administrative Hearings related to the alleged
5 negligence, denial of services, and a pending Social Security appeal in which “the agency”
6 assisted. See id. Although not entirely clear, plaintiff appears to claim that DSHS and the
7 Department of Child Serviced violated her constitutional rights by denying her benefits. See id.
8 Plaintiff further alleges that she was involved in a car accident on March 23, 2020, on
9 tribal land, which resulted in Travelers Insurance allegedly attempting to “coerce” plaintiff into
10 accepting “an offer”; however, plaintiff refused the offer. See Dkt. 1-1, at 4, 8. Plaintiff appears
11 to further allege that she was “treated differently” when no emergency vehicle was called for
12 medical support after the accident. See id. at 7. Plaintiff does not identify a specific claim or
13 harm regarding these allegations.
14 Finally, plaintiff appears to allege that defendants collectively held her captive at her
15 home, unlawfully entered her home, and took personal property. See Dkt. 1-1, at 5. Plaintiff
16 further alleges that defendants failed to refund a housing application fee for an apartment not
17 ready for occupancy, collected rent without performing landlord duties, surveilled and stalked
18 plaintiff, and failed to disclose a failed inspection regarding residential safety violations. See id.
19 Plaintiff appears to allege a constitutional deprivation based on seizure of property without due
20 process and violation of an unspecified federal statute based on housing violations. See id.
21 Plaintiff seeks damages in the total sum of $100,010,900,000.00 from all defendants.
22 See Dkt. 1-1, at 14.
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1 DISCUSSION
2 I. Legal Principles
3 Section 1983 provides a remedy where a person acting under color of state law “subjects,
4 or causes to be subjected,” plaintiff to “the deprivation of any rights, privileges, or immunities
5 secured by the Constitution” and the laws of the United States. 42 U.S.C. § 1983.
6 A pleading must contain a “short and plain statement of the claim showing that the
7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement demands “more than an
8 unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
9 678 (2009). The complaint must provide more than “‘labels and conclusions’ or ‘a formulaic
10 recitation of the elements of a cause of action[.]’” Id. (quoting Bell Atlantic Corp. v. Twombly,
11 550 U.S. 544, 555 (2007)). Moreover, the complaint “must contain sufficient factual matter,
12 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,
13 550 U.S. at 570).
14 Although this Court will interpret a pro se complaint liberally, it “may not supply
15 essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of
16 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). This Court will also grant leave to amend unless it
17 appears that there is no set of factual allegations that could cure the pleading. See Lopez v.
18 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
19 II. Claims Against ETC, the Office of Administrative Hearings, and WDOT
20 Plaintiff alleges that her former employer ETC, along with the Office of Administrative
21 Hearings and WDOT, allegedly discriminated and retaliated against her in violation of the
22 Seventh and Fourteenth Amendments, Title VII, and the EPA. See Dkt. 1-1, at 1, 4–6.
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1 Plaintiff’s claims against ETC under Title VII appear similar, if not identical, to claims
2 that plaintiff previously asserted and that were dismissed with prejudice in Johnson v. Elec.
3 Transaction Consultants Corp., Case No. 14-cv-05872-RBJ, Dkt. 91 (W.D. Wash. 2014).
4 “There can be little doubt that a dismissal with prejudice bars any further action between the
5 parties on the issues subtended by the case.” In re Marino, 181 F.3d 1142, 1144 (9th Cir. 1999)
6 (citations omitted). Accordingly, plaintiff’s claim that ETC allegedly violated her rights under
7 Title VII is barred.
8 Additionally, plaintiff’s claims against ETC for allegedly violating her Seventh and
9 Fourteenth Amendment rights and the EPA, as well claims that ETC acted negligently and failed
10 to comply with a contract, appear to be at issue in plaintiff’s action currently pending before
11 Judge Pechman in Johnson c. Elec. Transaction Consultants LLC, 20-cv-5857-MJP (W.D.
12 Wash. 2020). “Plaintiffs generally have no right to maintain two separate actions involving the
13 same subject matter at the same time in the same court and against the same defendant.” Adams
14 v. California Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (internal citations
15 omitted), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008). Thus,
16 plaintiff’s claims in this action against ETC also appear to be barred.
17 Finally, plaintiff’s claims against the Office of Administrative Hearings and WDOT
18 related to her employment with ETC appear to be time-barred. See 29 U.S.C. § 255(a) (three-
19 year statute of limitations for willful violations of the EPA); 42 U.S.C. § 2000e-5(e)(1) (180 or
20 300-day period to file a charge of discrimination under Title VII); 42 U.S.C. § 200e-5(f)(1) (90-
21 day period in which to file suit under Title VII after receiving right-to-sue notice); RCW
22 4.16.040(1) (six-year statute of limitations for claims arising from a written contract); RCW
23 4.16.080(2) (three-year statute of limitations for claims of negligence); Bagley v. CMC Real
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1 Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991) (three-year statute of limitations for § 1983
2 actions). Plaintiff appears to have been terminated from employment in July 2014, and the last
3 alleged action by these defendants that plaintiff identifies occurred in August 2014. See Dkt. 1-
4 1, at 2, 4. Thus, plaintiff has failed to timely assert her claims against the Office of
5 Administrative Hearings and WDOT, and those claims also appear to be barred.
6 In sum, plaintiff’s claims against ETC, the Office of Administrative Hearings, and
7 WDOT appear barred, as discussed above, and plaintiff has failed to plausibly allege why she
8 waited to file the instant action or how her apparently duplicative claims in the instant case differ
9 from claims that are currently pending or were dismissed with prejudice in other civil actions.
10 III. Claims Against Pioneer Human Services, Catholic Community Services,
Emerald Queen Casino, Travelers Insurance, and Amazon
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Plaintiff names Pioneer Human Services (a nonprofit social enterprise), Catholic
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Community Services (a nonprofit human service outreach organization), Emerald Queen Casino,
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Travelers Insurance, and Amazon as defendants in her proposed complaint. See Dkt. 1-1.
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Although plaintiff alleges that Travelers Insurance allegedly attempted to coerce her into
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accepting an offer related to a car accident, plaintiff does not identify how Travelers Insurance
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harmed her, nor does she identify any specific claims against Pioneer Human Services, Catholic
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Community Services, Emerald Queen Casino, or Amazon.
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In order to assert a claim for relief under 42 U.S.C. § 1983, plaintiff must allege that (1)
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she suffered a violation of rights protected by the Constitution or created by a federal statute, and
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(2) the violation was proximately caused by a person acting under color of state law. See
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Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Here, plaintiff has not clearly
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identified a constitutional or federal statutory violation allegedly committed by Pioneer Human
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Services, Catholic Community Services, Emerald Queen Casino, Travelers Insurance, or
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1 Amazon. Further, it does not appear that these named defendants are state government
2 employees or organizations, and therefore, they are not subject to suit under § 1983 because they
3 do not operate under color of state law. See Price v. State of Hawaii, 939 F.2d 702, 707–708
4 (9th Cir. 1991). Further, to the extent that plaintiff attempts to allege that these defendants are
5 state agencies, a government agency that is an arm of the state is not subject to suit under § 1983.
6 See Howlett v. Rose, 496 U.S. 356, 365 (1990). In order to state a claim against these
7 defendants, plaintiff must clearly identify the right(s) allegedly violated, the harm suffered, and
8 include allegations establishing that these organizations should be considered state actors (not
9 government agencies) for the purposes of her civil rights claims.
10 IV. Claims Against DSHS, Department of Child Support, Tacoma Police, and
Terry Lee Rembert
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Plaintiff appears to allege that DSHS and the Department of Child Support violated her
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constitutional rights based on an alleged denial of benefits. See Dkt. 1-1, at 4. Additionally,
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although she does not make any specific allegations against Tacoma Police and Rembert, it
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appears that Rembert is a Pierce County Corrections officer with Tacoma Police. See id. at 1.
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42 U.S.C. § 1983 does not allow suits for damages against States, departments of the
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State, or State employees acting in their official capacities. See Will v. Michigan Dep't of State
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Police, 491 U.S. 58, 71 (1989). Here, plaintiff fails to state a claim because DSHS and the
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Department of Child Support are departments of the State of Washington and are not subject to
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suit under § 1983. See id.
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Additionally, the “Tacoma Police” is not a proper defendant in this matter—rather, the
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proper defendant in a § 1983 action would be the municipality or county, not the municipal
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department or agency. See Vance v. Cty. of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal.
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1996); accord Osborne v. Clark Cty. Sheriff's Office, No. 3:16-CV-05307-BHS-DWC, 2017 WL
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1 6558665, at *5 (W.D. Wash. Nov. 29, 2017) (Clark County Jail is not an appropriate defendant
2 in a § 1983 action). The Court explained this to plaintiff in some detail in a prior action against
3 the Tacoma Police in Johnson v. Tacoma Police, 20-cv-5548, Dkt. 7 (W.D. Wash. 2020)
4 (dismissed without prejudice for failing to respond to the Court’s order to show cause).
5 Finally, in order to state a claim under § 1983, a plaintiff must allege facts showing how a
6 defendant caused or personally participated in causing the harm alleged in the complaint. See
7 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold v. IBM, 637 F.2d 1350, 1355 (9th
8 Cir.1981). Here, plaintiff fails to allege any facts that show Rembert’s personal participation in
9 any alleged violation of her constitutional or federal statutory rights. Further, when the local
10 government entity (e.g., City of Tacoma) is also named, the suit against the municipal officer
11 (e.g., Rembert) in his official capacity is redundant. See Busby v. City of Orlando, 931 F.2d 764,
12 776 (11th Cir. 1991). Thus, to the extent that plaintiff brings claims against Rembert, those
13 claims fail, as well.
14 V. Claims Against the United States, USDOT, USDOJ, and Patrick Sherwood
15 Plaintiff names the United States, USDOT, USDOJ, and Patrick Sherwood (a United
16 States administrative deputy) as defendants in her proposed complaint. See Dkt. 1-1. Other than
17 concluding, without explanation, that the United States allegedly failed to properly pay her
18 wages and benefits and retaliated against her, plaintiff fails to allege any supporting facts
19 regarding the alleged actions or alleged violations of rights by these defendants.
20 Because plaintiff brings suit against federal actors—rather than state actors—the Court
21 notes that her claims are properly interpreted under Bivens v. Six Unknown Named Agents of
22 Federal Bureau of Narcotics, not as claims under § 1983. Bivens, 403 U.S. 388 (1971). Under
23 Bivens, a plaintiff may bring a claim for damages against federal officers alleged to have violated
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1 the plaintiff’s constitutional rights. See Butz v. Economou, 438 U.S. 478, 486 (1978). To state a
2 claim under Bivens, plaintiff must allege that (1) a right secured by the federal constitution was
3 violated and (2) the alleged violation was committed by a federal actor. See Van Strum v. Lawn,
4 940 F.2d 406, 409 (9th Cir. 1991). However, an action against the United States, a United States
5 agency, or a federal employee in his official capacity is not available under Bivens. See FDIC v.
6 Meyer, 510 U.S. 471, 486 (1994). Rather, a claim under Bivens must be brought against a
7 federal officer in his or her individual capacity. Robinson v. Overseas Military Sales Corp., 21
8 F.3d 502, 510 (2d Cir. 1994).
9 Here, it is clear that the United States, USDOT, USDOJ, and Sherwood (in his official
10 capacity) are not subject to suit under Bivens. See FDIC, 510 U.S. at 486. Accordingly,
11 plaintiff’s claims against these defendants are foreclosed. Further, although plaintiff may bring
12 an action for damages against a federal officer in his individual capacity under Bivens, plaintiff
13 has failed to allege facts showing that Sherwood, in his individual capacity, personally acted in
14 violating plaintiff’s constitutional rights. See Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011).
15 Thus, plaintiff has also failed to state a claim against Sherwood in his individual capacity.
16 VI. Leave to Amend Proposed Complaint
17 “A district court should not dismiss a pro se complaint [with prejudice] unless it is
18 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar
19 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted).
20 The Court finds that it is not absolutely clear that plaintiff’s claims in her proposed complaint
21 may not be cured by amendment. Therefore, the Court grants plaintiff leave to amend.
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1 CONCLUSION AND DIRECTIONS TO PLAINTIFF
2 Due to the deficiencies described above, the Court declines to rule on plaintiff’s IFP
3 application at this time. If plaintiff still wishes to pursue her claims, she must file an amended
4 proposed complaint in support of her IFP application on or before November 30, 2020. Any
5 amended proposed complaint will serve as a complete substitute for plaintiff’s current proposed
6 complaint. The amended proposed complaint must include a short, plain statement telling the
7 Court: (1) the constitution and / or statutory rights plaintiff believes were violated; (2) the name
8 or names of the person or persons who violated the rights; (3) exactly what each individual or
9 entity did or failed to do; (4) how the action or inaction of each individual or entity is connected
10 to the violation of plaintiff’s constitutional or statutory rights; and (5) what specific injury
11 plaintiff suffered because of each defendants’ conduct. See Rizzo v. Goode, 423 U.S. 362, 371–
12 72, 77 (1976).
13 If plaintiff fails to file an amended proposed complaint on or before November 30, 2020,
14 the undersigned will recommend denial of plaintiff’s IFP application (Dkt. 1) and dismissal of
15 this action.
16 The Clerk is directed to send plaintiff the appropriate forms for filing a 42 U.S.C. § 1983
17 civil rights complaint for a person not in custody. The Clerk is further directed to send copies of
18 this Order to plaintiff.
19 Dated this 30th day of October, 2020.
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A
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J. Richard Creatura
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United States Magistrate Judge
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