# Kirkham v. Whatcom County > District Court, W.D. Washington · April 21, 2025 URL: https://www.frixlaw.com/law-library/cases/10850336 ## Case - **Court:** District Court, W.D. Washington - **Decided:** April 21, 2025 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10850336 ## How later opinions describe it (automated extraction) - finding a private healthcare provider fell under Monell - affirming dismissal where plaintiff “failed to allege that…defendants knew of or 7 participated in activities connected to the alleged § 1983 violations” ## Opinion text 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RICHARD ARTHUR KIRKHAM, CASE NO. 2:25-CV-208-DGE-DWC 11 Plaintiff, v. ORDER DECLINING SERVICE OF 12 AMENDED COMPLAINT WHATCOM COUNTY, et al., 13 Defendants. 14 15 Plaintiff Richard Arthur Kirkham, proceeding pro se, filed this civil rights complaint 16 under 42 U.S.C. § 1983. Dkt. 1. The filing fee has been paid. See docket. Having reviewed and 17 screened Plaintiff’s amended complaint under 28 U.S.C. § 1915A, the Court finds Plaintiff’s 18 claims against several defendants are deficient and not sufficiently pled for service. As such, the 19 Court declines to direct service of the amended complaint but grants Plaintiff the opportunity to 20 file a second amended complaint curing his deficient claims. 21 I. BACKGROUND 22 Plaintiff, an inmate currently confined at Whatcom County Jail (“WCJ”), filed an 23 amended complaint challenging the conditions of confinement at that facility. Dkt. 5. Plaintiff 24 organizes his claims into three counts, and each concerns the dental treatment he was provided 1 after Defendant Jessica Dubek, a dentist at WCJ, determined Plaintiff required a root canal to 2 treat an infected tooth. Id. at 4–8. 3 In Count I, Plaintiff alleges deliberate indifference by Defendants Whatcom County, Bill 4 Elfo (former Whatcom County sheriff), Donnell Tanksley (current Whatcom County sheriff), 5 and Dentall (a private entity that provides dental care to WCJ inmates). Id. at 4–5. Plaintiff 6 alleges Defendant Whatcom County has a policy limiting the dental procedures that can be 7 performed at WCJ to tooth extractions (hereinafter referred to as “extraction-only policy”). Id. 5 8 at 4–5. Plaintiff further alleges that Defendants Elfo, Tanksley, and Dentall “approved and 9 maintained” this extraction-only policy. Id. According to Plaintiff, the extraction-only policy has 10 prevented him from receiving a necessary dental treatment—specifically, a root canal—for over 11 seventeen months. Id. Plaintiff also references that the extraction-only policy supports state tort 12 claims (presumably against all defendants named in Count I). Id. 13 In Count II, Plaintiff alleges deliberate indifference by Defendants Dubek, Wendy Jones 14 (former WCJ chief), Caleb Erickson (current WCJ chief), and Breanna Doe (nursing supervisor 15 at WCJ). Id. at 6–7. Plaintiff alleges Defendants Dubrek and Doe were aware that Plaintiff 16 required a root canal, but neither acted to ensure Plaintiff was provided such treatment despite 17 the numerous grievances and appeals he filed. Id. As for Defendants Jones and Erikson, Plaintiff 18 alleges they were responsible for overseeing grievance appeals throughout the relevant period. 19 Id. at 7. 20 In Count III, Plaintiff alleges a Fourteenth Amendment violation by Defendants Dentall, 21 Dubek, and Doe. Id. at 7–8. Plaintiff’s allegations in this count are a continuation of his 22 allegations in Counts I and II. Plaintiff provides additional details about Defendants Dubek and 23 Doe’s alleged failure to provide adequate dental treatment, stating each would review Plaintiff’s 24 treatment requests made in grievances and simply refer Plaintiff back to the other Defendant. Id. 1 at 7–8. Plaintiff further alleges Defendants Dubek and Doe “changed my prognosis without any 2 new information” to avoid referring Plaintiff for a root canal by an outside provider. Id. Finally, 3 Plaintiff alleges that actions taken by Defendant Dubek were “on behalf of Dentall.” Id. 4 II. SCREENING STANDARD 5 Under the Prison Litigation Reform Act of 1995, the Court is required to screen 6 complaints brought by prisoners seeking relief against a governmental entity or officer or 7 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the 8 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to 9 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant 10 who is immune from such relief.” 28 U.S.C. § 1915A(b); see 28 U.S.C. § 1915(e)(2); Barren v. 11 Harrington, 152 F.3d 1193 (9th Cir. 1998). Dismissal on these grounds counts as a “strike” 12 under 28 U.S.C. § 1915(g). 13 To sustain a 42 U.S.C. § 1983 claim, a plaintiff must show that he suffered a violation of 14 rights protected by the Constitution or created by federal statute, and that the violation was 15 proximately caused by a person acting under color of state or federal law. West v. Atkins, 487 16 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). A plaintiff must 17 provide more than conclusory allegations; he must set forth specific, plausible facts to support 18 his claims. Ashcroft v. Iqbal, 556 U.S. 662, 678–83 (2009). 19 After screening a pro se complaint, the Court must generally grant leave to file an 20 amended complaint if there is a possibility the pleading deficiencies may be cured through 21 amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992); Akhtar v. Mesa, 698 22 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint without 23 leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be 24 cured by amendment.’”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1 1988)). However, if the claims put forth in the complaint lack any arguable substance in law or 2 fact, then the Court should dismiss the complaint as frivolous and without leave to amend. 28 3 U.S.C. § 1915A(b); Neitzke v. Williams, 490 U.S. 319, 327 (1989). 4 III. DISCUSSION 5 Upon review, the Court finds Plaintiff has sufficiently pled his § 1983 claims against 6 Defendants Whatcom County (Count I) and Defendants Breanna Doe and Jessica Dubek (Counts 7 II and III). However, all remaining claims in the amended complaint are deficient. Specifically, 8 Plaintiff’s § 1983 claims against Defendants Elfo and Tanksley (Count I), Defendants Jones and 9 Erikson (Count II), and Defendant Dentall (Counts I and III) and the state law claims referenced 10 in Count I are deficient for the reasons discussed below. 11 A. Supervisory Defendants 12 Plaintiff’s claims against Defendants Elfo, Tanksley, Jones, and Erikson are based on 13 these defendants holding supervisory positions within Whatcom County and WCJ. The claims 14 are deficient because Plaintiff fails to demonstrate these supervisory defendants’ personal 15 participation in causing the specific constitutional harm alleged. Section 1983 claims may not be 16 brought on the theory a supervisor is vicariously liable for the acts of his or her subordinates. See 17 Polk County v. Dodson, 454 U.S. 312, 325 (1981); Monell v. New York City Dep’t of Social 18 Servs., 436 U.S. 658, 691 (1978). Rather, a plaintiff must show the supervisor (1) personally 19 participated in or directed the alleged harm or (2) knew of a risk of harm to the plaintiff and 20 failed to act to prevent it. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. 21 denied, 525 U.S. 1154 (1999). Sweeping conclusory allegations against a defendant are 22 insufficient to state a claim for relief. Leer, 844 F.2d at 633. 23 Plaintiff’s sole allegation with respect to Defendants Elfo and Tanksley, which is made in 24 Count I, is that they “approved and maintained” Defendant Whatcom County’s alleged 1 extraction-only policy while serving as sheriff for the County. Dkt. 1-1 at 4–5. These allegations 2 are insufficient to demonstrate their personal participation in violating Plaintiff’s constitutional 3 rights. There is no allegation these defendants were directly involved in enforcing the extraction- 4 only policy with respect to Plaintiff or with awareness of the circumstances alleged in the 5 amended complaint. See, e.g., Ortez v. Washington Cnty., Or., 88 F.3d 804, 809–10 (9th Cir. 6 1996) (affirming dismissal where plaintiff “failed to allege that…defendants knew of or 7 participated in activities connected to the alleged § 1983 violations”). With respect to Defendants 8 Jones and Erikson, Plaintiff alleges in Count II that they were responsible for overseeing 9 grievances at WCJ. Plaintiff again fails to sufficiently allege personal participation by these 10 supervisory defendants, as his allegations do not show Defendants Jones and Erikson’s 11 knowledge of, or participation in, the specific constitutional harm he allegedly suffered. Dkt. 1-1 12 at 6–7. 13 Therefore, in any amended pleadings, Plaintiff should only name individuals as 14 defendants if he can allege specific facts demonstrating their personal participation in the alleged 15 denial of procedural due process. 16 B. Defendant Dentall 17 Plaintiff has also failed to state a claim against Defendant Dentall. Where, as here, a 18 private entity is sued under § 1983 for actions allegedly taken under color of state law, the Ninth 19 Circuit has instructed that the Monell requirements apply. See Tsao v. Desert Palace, Inc., 698 20 F.3d 1128, 1138–39 (9th Cir. 2012); see also M.H. v. County of Alameda, 62 F. Supp. 3d 1049, 21 1085–86 (N.D. Cal. 2014) (finding a private healthcare provider fell under Monell). To set forth 22 a claim pursuant to Monell, a plaintiff must show a defendant’s employees or agents acted 23 through an official custom, pattern, or policy permitting deliberate indifference to, or violating, 24 the plaintiff’s civil rights, or that the entity ratified the unlawful conduct. Monell v. New York 1 City Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 690–91 (1978). A defendant “cannot 2 be held liable solely because it employs a tortfeasor—or, in other words, [it] cannot be held liable 3 under § 1983 on a respondeat superior theory.” Id. at 691 (emphasis in original). Regardless of 4 whether a claim is brought against a county or a private entity acting under color of state law, 5 Monell requires that a plaintiff establish a direct causal link between an official policy held by 6 the defendant and the constitutional violation alleged. See City of Canton, Ohio v. Harris, 489 7 U.S. 378, 385, 391–92 (1989); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835–38 (9th Cir. 8 1996). 9 Plaintiff fails to connect the constitutional violations he alleges against Defendant Dentall 10 in Counts I and III to an official policy or practice of Defendant Dentall. In Count I, Plaintiff 11 alleges he was denied necessary dental care because of the extraction-only policy allegedly held 12 by Defendant Whatcom County. Dkt. 1-1 at 4–5. There is no allegation that Defendant Dentall 13 had an independent policy restricting the dental procedures its employees were permitted to 14 provide or prohibiting its employees from referring WCJ inmates for procedures performed by 15 outside providers. Thus, Plaintiff has failed to draw a nexus between an official policy held by 16 Defendant Dentall and the constitutional injuries alleged in Count I. Next, in Count III, Plaintiff 17 seeks to hold Defendant Dentall vicariously liable for the actions of Defendant Dubek. Dkt. 1-1 18 at 7–8. Because this is not a viable theory of liability under § 1983, Plaintiff should only name a 19 county or private entity acting under color of state law as a defendant if he can allege facts 20 demonstrating a policy or practice of that defendant was the moving force behind any 21 constitutional violation alleged. 22 C. State Law Claims (Count I) 23 Finally, to the extent Plaintiff wishes to pursue supplemental state law claims in this § 24 1983 action, he has failed to sufficiently plead such claims in Count I of his amended complaint. 1 Plaintiff’s brief reference to these potential claims and bare allegation that “this [extraction-only] 2 policy also constitutes the torts of negligent infliction of emotional distress, negligence, and 3 failure to protect,” is not enough to give defendants fair notice of the nature of his claims and the 4 factual basis on which the claim rests. Iqbal, 556 U.S. at 678. Brief references and conclusory 5 allegations do not meet this standard. See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 6 (2007) (conclusory allegations are insufficient to nudge a claim for relief “across the line from 7 conceivable to plausible”). If Plaintiff wishes to pursue alternative theories of liability arising out 8 of the same transactions and occurrences, he must clearly specify which factual allegations apply 9 to each claim against the defendants. Thus, in any amended pleadings, Plaintiff must support his 10 claims with sufficient detail to put defendants on notice of the specific conduct alleged to be 11 unlawful in each claim against them. 12 IV. INSTRUCTIONS TO PLAINTIFF 13 Due to the deficiencies described above, the Court will not direct service of the amended 14 complaint. If Plaintiff wishes to proceed in this action, he must file a second amended complaint 15 not later than May 21, 2025. 16 The second amended complaint must contain a short, plain statement telling the Court: 17 (1) the constitutional right Plaintiff believes was violated; (2) the name of the person who 18 violated the right; (3) exactly what the individual did or failed to do; (4) how the action or 19 inaction of the individual is connected to the violation of Plaintiff’s constitutional rights; and (5) 20 what specific injury Plaintiff suffered because of the individual’s conduct. See Rizzo v. Goode, 21 423 U.S. 362, 371–72, 377 (1976). Each claim for relief must be simple, concise, and direct, and 22 shall not arise from separate transactions or occurrences. 23 Plaintiff shall present the second amended complaint on the form provided by the Court. 24 The second amended complaint must be legibly rewritten or retyped in its entirety, it should be 1 an original and not a copy, it should contain the same case number, and it may not incorporate 2 any part of the original complaint or amended complaint by reference. The second amended 3 complaint shall not exceed twenty (20) pages absent leave of Court and upon a showing of good 4 cause. The second amended complaint will act as a complete substitute for Plaintiff’s prior 5 pleadings, not as a supplement. This means, while some of Plaintiff’s claims in the amended 6 complaint have been sufficiently pled, he must reassert all claims in his second amended 7 complaint that he intends to pursue in this action. 8 The Court will screen the second amended complaint to determine whether it contains 9 factual allegations linking each defendant to the alleged violations of Plaintiff’s rights. If 10 Plaintiff fails to file a second amended complaint or does not adequately address the issues raised 11 herein by May 21, 2025, the undersigned will recommend dismissal of this action. 12 The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. § 1983 13 civil rights complaint and for service. The Clerk is further directed to send copies of this order 14 and the Court’s prior screening order (Dkt. 4) to Plaintiff. 15 Dated this 21st day of April, 2025. 16 A 17 David W. Christel United States Magistrate Judge 18 19 20 21 22 23 24 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10850336. Public record. Not legal advice.