United States District Court, D. Oregon
Michael H. Simon United States District Judge
filed this 42 U.S.C. § 1983 prisoner civil rights
lawsuit on July 16, 2018. Upon initial review of the case,
should Plaintiff wish to continue, he must satisfy the filing
fee requirement and file an amended complaint curing the
deficiencies identified below. See 28 U.S.C. §
Filing Fee Requirement
brings this civil rights action pursuant to 42 U.S.C. §
1983. A party seeking to institute a civil action shall pay a
filing fee of $400.00, a figure which includes a $50.00
Judicial Administrative Fee. An action may proceed without
the prepayment of a filing fee only upon a proper application
to proceed in forma pauperis. 28 U.S.C. §
1915(a). A prisoner granted leave to proceed in forma
pauperis may be required to pay an initial partial
filing fee and shall be required to make monthly payments
toward satisfaction of the $350.00 filing fee when sufficient
funds are credited to his trust account. 28 U.S.C. §
1915(b). Plaintiff has neither submitted the filing fee nor
moved to proceed in forma pauperis.
Failure to State a Claim
to 28 U.S.C. § 1915A(a), the Court is required to screen
prisoner complaints seeking relief against a governmental
entity, officer, or employee and must dismiss a complaint if
the action is frivolous, malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b). In order to state a claim,
Plaintiff's Complaint must contain sufficient factual
matter which, when accepted as true, gives rise to a
plausible inference that defendants violated plaintiff's
constitutional rights. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009); Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 556-57 (2007) . "Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Iqbal,
129 S.Ct. at 1949.
for failure to state a claim is proper if it appears beyond
doubt that Plaintiff can prove no set of facts in support of
his claims that would entitle him to relief. Ortez v.
Washington County, 88 F.3d 804, 806 (9th Cir. 1996);
Cervantes v. City of San Diego, 5 F.3d 1273, 1274
(9th Cir. 1993). Because Plaintiff is proceeding pro
se, the Court construes his pleadings liberally and
affords him the benefit of any doubt. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Ortez, 88 F.3d
order to state a valid 42 U.S.C. § 1983 claim for
pleading purposes, a plaintiff must demonstrate compliance
with the following factors: (1) a violation of rights
protected by the Constitution or created by federal statute;
(2) proximately caused; (3) by conduct of a person; (4)
acting under color of state law. Crumpton v. Gates,
947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff brings this
case against a single Defendant, the Warden of the Oregon
State Penitentiary. Plaintiff's claim, in its entirety,
reads as follows: "My body was raped." Complaint
(#1), p. 4. In his Prayer for Relief, Plaintiff asks to be
"paid same price I asked for when I sent you my first
civil lawsuit." Id. at 6.
plaintiff "must plead that each . . . defendant, through
the official's own individual actions, has violated the
Constitution." Iqbal, 556 U.S. at 676; see
also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
("Liability under section 1983 arises only upon a
showing of personal participation by the defendant" in
the alleged constitutional deprivation). It is not clear from
Plaintiff's Complaint who may have raped him, when and
where this attack occurred, or how his Warden, the only named
Defendant to the case, was personally responsible for the
officials have a duty ... to protect prisoners from violence
at the hands of other prisoners." Farmer v.
Brennan, 511 U.S. 825, 833 (1994) (internal citation
omitted). The failure to protect inmates from attacks by
other inmates may violate the Eighth Amendment when (1) the
deprivation alleged is "objectively, sufficiently
serious" and (2) the prison officials had a
"sufficiently culpable state of mind," acting with
deliberate indifference. Id. at 834.
"[D]eliberate indifference entails something more than
mere negligence . . . [but] is satisfied by something less
than acts or omissions for the very purpose of causing harm
or with knowledge that harm will result." Id.
does not allege that he faced a threat of serious harm to
which Warden Kelly was deliberately indifferent. Instead,
Plaintiff appears to name Warden Kelly as the Defendant to
this lawsuit based upon his position of authority within the
Oregon State Penitentiary. A supervisor is liable for the
constitutional violation of his or her employee if the
supervisor participated in or directed the violations, or
knew of the violations and failed to act to prevent them.
Taylor, 880 F.2d at 1045. There is no respondeat
superior liability under § 1983. Monell v. New York
City Dep't. of Social Services, 436 U.S. 658, 691-94
(1978); Taylor, 880 F.2d at 1045.
bare, conclusory allegation that "his body was
raped" fails to comply with the minimal pleading
requirements associated with a civil rights case.
Accordingly, the Complaint is dismissed ...