Kirkham

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT TACOMA

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10 RICHARD ARTHUR KIRKHAM,

CASE NO. 2:26-cv-01456-JCC-GJL

11 Plaintiff,

v.

ORDER DECLINING SERVICE OF

12 AMENDED COMPLAINT

BILL ELFO, et al.,

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Defendants.

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15 Plaintiff Richard Arthur Kirkham, proceeding pro se, initiated this action under 42 U.S.C.

16 § 1983. Dkt. 1. On June 17, 2026, the Court screened and declined to serve Plaintiff’s initial

17 Complaint. Dkt. 1. The Court identified several deficiencies that prevented Plaintiff from

18 proceeding with his claims, instructed Plaintiff on how they may be cured, and granted him an

19 opportunity to cure the identified deficiencies. Id. Plaintiff thereafter filed an Amended

20 Complaint. Dkt. 7.

21 Having screened Amended Complaint, the Court finds several deficiencies that must be

22 cured if Plaintiff intends to proceed in this action. As such, the Court DECLINES to direct

23 service and, instead, the Court again affords Plaintiff another opportunity to cure the identified

24 deficiencies by filing a second amended complaint on or before September 28, 2026.

1 I. BACKGROUND

2 A. Initial Complaint and Screening Order

3 In his initial Complaint, Plaintiff named Whatcom County and the following individuals

4 as Defendants: Bill Elfo, Donnell Tanksley, Wendy Jones, Sergeant Otten, Sergeant Gegoier,

5 Sergeant Bobadilla, and Deputy Remy. Dkt. 1 at 2. Defendants Elfo, Tanksley, and Otten were

6 named only as official-capacity Defendants, and the remaining individuals were sued in their

7 official as well as individual capacities. Id.

8 As for the factual basis of his claims, Plaintiff alleged that, after a state court restricted

9 his telephone privileges in October 2023, Whatcom County Jail (“WCJ”) staff placed him in

10 administrative segregation pursuant to jail policy and kept him there for approximately 155 days

11 without notice, a hearing, an opportunity to challenge his placement, a written statement of

12 reasons, an appeal process, or periodic review. Id. at 3–7. Plaintiff further alleged that Defendant

13 Remy threatened that Plaintiff would be transferred to the more restrictive “total Isolation” if he

14 filed a grievance about his placement in administrative segregation. Id. at 6–7. Based on these

15 allegations, Plaintiff asserted § 1983 claims for violations of the First and Fourteenth

16 Amendments, along with numerous state-law causes of action. Id. at 7–10.

17 On June 17, 2026, the Court screened and declined to serve the initial Complaint. Dkt. 5.

18 Although the Court observed that Plaintiff’s factual narrative regarding his placement in

19 administrative segregation and alleged retaliation was generally understandable, it concluded that

20 the Complaint contained several pleading deficiencies. Id.

21 Specifically, the Court found:

22 1. The initial Complaint asserted numerous overlapping constitutional and

state-law claims without clearly identifying which facts supported each

23 cause of action or each Defendant’s liability;

24 2. Plaintiff relied excessively on exhibits rather than pleading the supporting

1 3. Plaintiff failed to allege sufficient facts demonstrating the personal

participation of Defendants Jones, Gegoier, and Bobadilla; and

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4. Plaintiff’s official-capacity claims against the individual Defendants were

3 redundant of his claims against Whatcom County.

4 Id. at 3–8. The Court granted Plaintiff leave to amend so that he may attempt to correct these

5 deficiencies. Id. at 9.

6 B. Amended Complaint

7 Plaintiff filed an Amended Complaint on July 16, 2026. Dkt. 7. Plaintiff names Whatcom

8 County and the following individuals as Defendants: Bill Elfo, Donnell Tanksley, Sergeant

9 Bobadilla, and Deputy Remy. Id. at 2. The Amended Complaint proceeds on ostensibly the same

10 factual basis as the initial Complaint but differs in its organization of claims. Id. Specifically, the

11 Amended Complaint is organized into fifteen claims that, although not always clearly delineated,

12 appear to assert violations of the First and Fourteenth Amendments to the United States

13 Constitution, as well as numerous state law claims. Id. at 3–19. Plaintiff again seeks

14 compensatory and punitive damages as relief for his claims. Id. at 19.

15 II. SCREENING STANDARD

16 Under the Prison Litigation Reform Act of 1996, the Court must screen proposed

17 complaints brought by prisoners seeking relief against a governmental entity or officer or

18 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the

19 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to

20 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant

21 who is immune from such relief.” 28 U.S.C. § 1915A(b); see also 28 U.S.C.

22 §1915(e)(2)(B); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Dismissal on these

23 grounds constitutes a “strike” under 28 U.S.C. § 1915(g).

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1 In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) he

2 suffered a violation of rights protected by the Constitution or created by federal statute, and (2)

3 the violation was proximately caused by a person acting under color of state law. See Crumpton

4 v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to

5 identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271

6 (1994). To satisfy the second prong, a plaintiff must allege facts showing how individually

7 named defendants caused, or personally participated in causing, the harm alleged in the

8 complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).

9 The Court is required to liberally construe pro se documents. Estelle v. Gamble, 429 U.S.

10 97, 106 (1976). However, a complaint must contain “a short and plain statement of the claim

11 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Each allegation must be

12 simple, concise, and direct.” Fed. R. Civ. P. 8(d). Even pro se pleadings must raise the right to

13 relief beyond the speculative level and must provide “more than labels and conclusions, and

14 a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

15 Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A

16 plaintiff must set forth specific, plausible facts to support their claims. Ashcroft v. Iqbal, 556

17 U.S. 662, 678–83 (2009).

18 III. DISCUSSION

19 Upon review of the Amended Complaint, the Court finds that Plaintiff has cured some,

20 but not all of the deficiencies identified in the prior Screening Order. In particular, Plaintiff has

21 omitted redundant official capacity defendants from his amended pleading, but, similar to his

22 initial Complaint, the Amended Complaint includes “numerous overlapping claims, alternative

23 theories of liability” that “confuse[] and dilute[] the nature and scope of his claims against each

24 defendant.” Dkt. 5 at 4.

1 In addition, Plaintiff has asserted numerous legally deficient claims in the Amended

2 Complaint, including his First Amendment retaliation claim and several state law claims. Each of

3 these deficiencies are discussed in greater detail below and render the Amended Complaint

4 unsuitable for service upon Defendants.

5 A. Federal Rule of Civil Procedure 8

6 Under Rule 8(a), a complaint must contain “a short and plain statement of the claim

7 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Each allegation must be

8 simple, concise, and direct.” Fed. R. Civ. P. 8(d). While lengthy pleadings do not automatically

9 violate Rule 8’s requirement to provide a short, plain statement demonstrating entitlement to

10 relief, pleadings that are “argumentative, prolix, replete with redundancy, [or] largely irrelevant”

11 do not comply with the Rule. McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).

12 In Claims One, Two, Three, Six, Seven, and Eight, Plaintiff alleges his placement in

13 administrative segregation occurred without, or in violation of, “due process.” Dkt. 7 at 3–13. It

14 is unclear, however, whether Plaintiff intends to allege substantive or procedural due process

15 claims, or both. Thus, these claims do not comply with Rule 8.

16 Pretrial detainees have a substantive due process right to be free from punishment before

17 adjudication of guilt. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). To state a substantive due

18 process claim based on punishment, a plaintiff must allege facts demonstrating a state action that

19 (1) resulted in more than de minimis harm and (2) was intended to punish. See Demery v. Arpaio,

20 378 F.3d 1020, 1029 (9th Cir. 2004). Not every inconvenience or restriction during pretrial

21 detention amounts to unconstitutional punishment. Minor restrictions or temporary, short-term

22 losses of privileges, for example, are considered de minimis and do not rise to the level of a

23 constitutional violation. Peyton v. Cnty. of Ventura, No. 17-cv-3202-VAP-AJW, 2017 WL

24 6816355, at *2–3 (C.D. Cal. Aug. 23, 2017), report and recommendation adopted by 2018 WL

1 317791 (C.D. Cal. Jan. 3, 2018) (collecting cases). Intent to punish “may be inferred from the

2 lack of rational relation to a legitimate nonpunitive government interest.” Houston v. Maricopa,

3 Cnty. of, Arizona, 116 F.4th 935, 941 (9th Cir. 2024).

4 Pretrial detainees also have a right to procedural due process when subjected to more

5 severe conditions of confinement than other detainees. Shorter v. Baca, 895 F.3d 1176, 1190 (9th

6 Cir. 2018) (Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1996)). To state a procedural due

7 process claim, a plaintiff must allege facts demonstrating “(1) a liberty or property interest

8 protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack

9 of process.” Armstrong v. Reynolds, 22 F.4th 1058, 1066 (9th Cir. 2022) (quoting Portman v.

10 Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)).

11 Generally, due process claims by pretrial detainees require a showing that a defendant

12 acted with at least reckless disregard for inmates’ health or safety. Norbert v. City & Cnty. of San

13 Francisco, 10 F.4th 918, 928 (9th Cir. 2021). And, as with all § 1983 claims, a plaintiff must

14 allege facts demonstrating liability for the due process claim is based on the defendant’s own

15 culpable conduct. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

16 Although pled as separate causes of action, Plaintiff’s various due process claims do not

17 clearly assert distinct due process injuries and, instead, appear to advance different legal theories

18 for why particular Defendants should be held liable for ostensibly the same constitutional

19 deprivation. The purpose of a pleading is to provide a clear, concise, and direct presentation of

20 claims and operative facts, not the development of all possible legal arguments. And the manner

21 in which Plaintiff has presented his Amended Complaint confuses and obscures the due process

22 claims he intends to pursue. That is, the disjointed and repetitive presentation of operative facts

23 within arbitrarily separated claims makes it difficult to determine that nature of Plaintiff’s due

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1 process claims against each Defendant. This is substantially the same pleading deficiency

2 identified in the Court’s prior Screening Order. See Dkt. 5 at 4–5.

3 By contrast, Claim Ten demonstrates the type of pleading contemplated by Rule 8. There,

4 Plaintiff alleges that Defendant Remy threatened to transfer Plaintiff to “total isolation” in

5 retaliation for challenging his placement in administrative segregation, thereby violating

6 Plaintiff’s First Amendment rights. Dkt. 7 at 14–16. Claim Ten focuses on the factual content

7 allegedly causing the asserted constitutional violation and is not segmented into separate claims

8 resulting in the same alleged injury. Id. As a result, Claim Ten provides fair notice of the

9 constitutional right at issue, the Defendant against whom the claim is asserted, and the factual

10 basis supporting the claim, which is the purpose of Rule 8. See Kimes v. Stone, 84 F.3d 1121,

11 1129 (9th Cir. 1996).

12 In sum, the Amended Complaint does not permit the Court to readily determine which

13 separately numbered due process claims are intended to present distinct causes of action against

14 each Defendant and which merely present differing legal arguments for why Plaintiff believes he

15 is entitled to relief for the same underlying due process injury. And, as the Court instructed

16 previously:

17 [T]o avoid obscuring potentially meritorious constitutional claims under § 1983,

Plaintiff should focus any amended complaint on those claims for which he can

18 allege facts demonstrating a violation of a specific constitutional right by a

particular defendant or defendants. Plaintiff should avoid asserting overlapping

19 claims, duplicative causes of action, or alternative theories of liability that arise

from the same alleged conduct unless he can clearly explain the particular factual

20 basis for each defendant’s liability under the governing legal standards.

21 Dkt. 5. at 4. Failure to file an amended pleading that adheres to the requirements of Rule 8 may

22 result in a recommendation that this action be dismissed. See Swearington v. California Dep't of

23 Corr. & Rehab., 624 F. App’x 956, 959 (9th Cir. 2015) (affirming dismissal without leave to

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1 amend where pro se prisoner plaintiff “did not cure the complaint’s deficiencies despite the

2 district court’s specific instructions about how to do so”).

3 B. First Amendment Retaliation

4 Although Plaintiff has cured the previously identified Rule 8 defects in his First

5 Amendment retaliation claim and clearly stated the grounds upon which Claim Ten is based,

6 Plaintiff has not alleged a viable First Amendment retaliation claim against Defendant Remy.

7 Within the prison context, a viable claim of First Amendment retaliation entails five basic

8 elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

9 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

10 exercise of his First Amendment rights, and (5) the action did not reasonably advance a

11 legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).

12 To satisfy the “because of” element, a plaintiff must allege facts showing his protected

13 conduct was “the substantial or motivating factor behind the defendant’s conduct.” Brodheim v.

14 Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (citations and quotations omitted). At the pleading

15 stage, it may be sufficient for a plaintiff to allege that an adverse action was taken soon after a

16 defendant learned of his protected conduct. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.

17 2012). Even so, conclusory allegations and “[m]ere speculation that defendants acted out of

18 retaliation [are] not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In other

19 words, the facts alleged must support a reasonable inference that retaliation did occur, as

20 opposed to merely showing an order of events wherein retaliation could have occurred. See also

21 West v. Ulloa, No. 2:17-cv-04892-VBF-KES, 2019 WL 8108724, at *7 (C.D. Cal. Dec. 5, 2019),

22 aff’d, No. 20-56167, 2022 WL 17412865 (9th Cir. Dec. 5, 2022) (finding pro se plaintiff’s

23 retaliation claim deficient because, despite suspect timing, the factual allegations were

24 insufficient to support inference of retaliatory animus beyond speculative level); Escamilla v.

1 City of Santa Ana, No. 8:19-cv-02229-JAK-ADS, 2021 WL 4317974, at *1 (C.D. Cal. Sept. 22,

2 2021), aff’d, No. 21-56326, 2023 WL 7040313 (9th Cir. Oct. 26, 2023) (same).

3 Here, Plaintiff alleges that Defendant Remy engaged in retaliation by threatening that

4 Plaintiff would be transferred to total isolation if he filed a grievance challenging his placement

5 in administrative segregation. Dkt. 7 at 14–16. In particular, Plaintiff alleges that he informed

6 Defendant Remy that he wanted to file a grievance challenging his placement in administrative

7 segregation, explaining the placement did not accomplish the stated purpose of preventing

8 Plaintiff from accessing a telephone. Id. at 14–15.

9 According to Plaintiff, Defendant Remy responded by stating his understanding of the

10 proposed grievance was that Plaintiff believed his current placement was not “restrictive

11 enough” and that Plaintiff should instead be moved total isolation. Id. at 15. Defendant Remy

12 further stated that he would provide Plaintiff with a grievance form but adding that “if you

13 decide you want to follow through and grieve it…it will make things worse for you.” Id. Plaintiff

14 alleges that Defendant Remy’s statements threatening total isolation and worsening conditions

15 discouraged him from pursuing the grievance, thereby chilling his First Amendment activity. Id.

16 at 16.

17 While Plaintiff characterizes Defendant Remy’s alleged statements as threats and alleges

18 a chilling effect, the factual basis of his claim does not support a reasonable inference of

19 retaliation. That is, the facts alleged here do not plausibly show that Defendant Remy threatened

20 more restrictive housing because Plaintiff sought to exercise his right to file a grievance. Rather,

21 construed liberally, the alleged threats merely warned Plaintiff of a potential unanticipated

22 consequence of the specific grievance he intended to pursue, namely that if Plaintiff challenged

23 his placement in administrative segregation on the ground that it did not prevent him from

24 accessing a telephone, jail officials could respond to the grievance by placing Plaintiff in more

1 restrictive housing where no telephone was accessible. That Plaintiff, having received this

2 warning from Defendant Remy, was deterred from pursuing his grievance, does not

3 automatically convert the warning to unlawful retaliation.

4 Indeed, Plaintiff does not allege, for example, that Defendant Remy threatened to place

5 Plaintiff in total isolation as punishment for filing a grievance against Defendant Remy or

6 another jail official, or that Defendant Remy otherwise indicated an intent to punish Plaintiff for

7 his desire to use the grievance process. C.f. Brodheim, 584 F.3d 1271 (finding triable issues of

8 fact where prison officials allegedly threatened punishment that was motivated by inmate’s use

9 of grievance process and/or the alleged “disrespectful” language contained such grievances). To

10 the contrary, Plaintiff’s allegations reflect that Defendant Remy explicitly stated that he would

11 provide Plaintiff with the form necessary to file his grievance (thus permitting him to exercise

12 his First Amendment rights) while also warning of a possible and unintended consequence of the

13 specific challenge Plaintiff wanted to raise. While Plaintiff allegedly understood Defendant

14 Remy’s statements as a threat and was deterred from pursuing that particular grievance, those

15 allegations do not plausibly establish that Defendant Remy’s intent in issuing the warning was to

16 punish or retaliate against Plaintiff for engaging in protected activity.

17 As Plaintiff does not allege facts showing that Defendant Remy took any adverse action

18 “because of” his protected activity, Plaintiff does not state a viable First Amendment retaliation

19 claim against Defendant Remy. Because this defect concerns the factual basis upon which

20 Plaintiff’s claim is based, it is unlikely Plaintiff will be able to cure through amendment.

21 C. State Law Claims

22 Plaintiff’s state law claims have further deficiencies. The Court does not undertake an

23 exhaustive analysis of every state law theory asserted in the Amended Complaint at this juncture.

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1 However, the following deficient state law claims also prevent Plaintiff from proceeding on his

2 Amended Complaint.

3 Specifically, Plaintiff asserts state law claims for “the tort of breach of duty” (Claims 11

4 and 12) and “the tort of torture” (Claim 15). Dkt. 7 at 16–17, 18. But Plaintiff identifies no

5 authority recognizing either as an independent cause of action under Washington law, and the

6 Court is aware of none. Instead, while “torture” is a term generally used to describe potentially

7 tortious conduct or criminal acts, it is not a freestanding tort. See, e.g., Wash. Rev. Code §

8 9A.36.021 (Washington statute containing “torture” as an element of the criminal offense of

9 assault); Wash. Rev. Code § 9A.32.055 (Washington statute containing “torture” as an element

10 of the criminal offense of homicide by abuse). Similarly, “breach of duty” is not a freestanding

11 tort but rather an element of the tort of negligence. See Mancini v. City of Tacoma, 196 Wash. 2d

12 864, 879, 479 P.3d 656, 664 (2021) (outlining elements of negligence claim).

13 It is possible Plaintiff may have intended to assert tort claims for negligence by asserting

14 “breach of duty” in Claims 11 and 12. Dkt. 7 at 16–17. But this possible interpretation of Claims

15 11 and 12 is undermined by the fact that Plaintiff separately asserted negligence claims in Claims

16 4 and 5. Id. at 7–8. Therefore, Plaintiff’s inclusion of duplicative “breach of duty” and

17 negligence tort claims in the Amended Complaint further illustrates the Rule 8 concerns

18 presented by Plaintiff’s pleading of repetitive and overlapping theories of liability within

19 separately numbered counts.

20 As previously cautioned, this redundant, prolix pleading approach has resulted in several

21 deficient claims, has obscured the nature of Plaintiff’s potentially meritorious claims, and has

22 rendered his Amended Complaint unsuitable for service upon Defendants. See Dkt. 5 at 4; see

23 also McHenry, 84 F.3d at 1179 (“The propriety of dismissal for failure to comply with Rule 8

24 does not depend on whether the complaint is wholly without merit.”).

1 D. Application to Proceed In Forma Pauperis

2 Finally, Plaintiff also filed an Application to Proceed In Forma Pauperis (“IFP”) with his

3 Amended Complaint. Dkt. 7-1. Because Plaintiff has already paid the filing fee in this action, his

4 IFP Application is DENIED as moot. Additionally, Plaintiff is advised that IFP status permits a

5 litigant to proceed without prepayment of the filing fee; it does not relieve an incarcerated

6 litigant of the obligation to pay the fee or entitle a litigant to reimbursement of fees already paid.

7 See 28 U.S.C. §§ 1915(a)(1), (b)(1).

8 IV. INSTRUCTIONS TO PLAINTIFF

9 Because of the deficiencies described above, the Court DECLINES to direct service of

10 the Amended Complaint. Instead, Plaintiff is GRANTED LEAVE to file a second amended

11 complaint correcting the above-stated deficiencies on or before September 28, 2026.

12 The Court WILL screen the second amended complaint to determine if service upon any

13 defendant is appropriate. The second amended complaint MUST contain a short, plain statement

14 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the

15 person who violated the right; (3) exactly what the individual did or failed to do; (4) how the

16 action or inaction of the individual is connected to the violation of Plaintiff’s constitutional

17 rights; and (5) what specific injury Plaintiff suffered because of the individual’s conduct. See

18 Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976). Each claim for relief MUST be simple,

19 concise, and direct.

20 The second amended complaint MUST be filed under the same case number as this one

21 and will operate as a complete substitute for Plaintiff’s prior pleadings. See Ferdik v. Bonzelet,

22 963 F.2d 1258, 1262 (9th Cir. 1992). The second amended complaint MUST be legibly rewritten

23 or retyped in its entirety. This means, the second amended complaint MUST be an original

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1 document, not a compilation of previously submitted materials, and it MAY NOT incorporate

2 any part of the prior complaints by reference.

3 Finally, failure to file a second amended complaint addressing the issues identified herein

4 by the stated deadline MAY result in a recommendation this action be dismissed.

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6 Dated this 28th day of August, 2026.

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9 Grady J. Leupold

United States Magistrate Judge

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