Nash v. Vail

Full title: KEITH L. NASH, Plaintiff, v. ELDON VAIL, et al. Defendants

Court: United States District Court, W.D. Washington, at Tacoma

Date published: Sep 8, 2009

No. C09-5178RBL (W.D. Wash. Sep. 8, 2009)

Opinion

No. C09-5178RBL.

September 8, 2009

ORDER

J. CREATURA, Magistrate Judge

This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrate Judges' Rules MJR 1, MJR 3, and MJR 4. This matter is before the court on plaintiff's response to the court's previous order, which explained certain deficiencies in the underlying complaint. After reviewing the record, the undersigned finds and orders as follows:

1. On March 26, 2009, the court clerk received plaintiff's Complaint along with an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. On April 20, 2009, the court granted the application and reviewed the Complaint, which was found to be deficient. See Doc. 6. Plaintiff responded by filing an Amended Complaint and a brief including argument why his claims are not deficient. (Docs. 7 8).

2. A review of the brief and Amended Complaint shows further deficiencies, which must be cured or corrected. For instance, plaintiff continues to name individuals as defendants based on their supervisory role or capacity. The court previously explained that a defendant cannot be held liable under 42 U.S.C. § 1983 solely on the basis of supervisory responsibility or position, citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 n. 58 (1978).

More significant is the fact that the Amended Complaint contains an additional plaintiff — Mr. Jamar Hurse. Mr. Hurse has not filed an application to proceed in forma pauperis, and would need to do so in order to be added as an additional plaintiff. In addition, the court notes Mr. Hurse has not signed and/or verified the allegations made in the Amended Complaint.

3. Based on the deficiencies described above, by October 9, 2009, plaintiff shall file a second amended complaint curing, if possible, the above deficiencies. In addition, Mr. Hurse must also either pay the requisite filing fee or an application to proceed in forma pauperis by the same date, otherwise the court may recommend dismissal of this matter in its entirety as frivolous.

4. The clerk is directed to send a copy of this order to plaintiff at his last known address.