Valencia Barrera v. Whatcom County Sheriff's Office

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 ARTURO OSIEL VALENCIA BARRERA, Case No. 2:25-cv-02129-JNW-TLF 7 Plaintiff, v. REPORT AND 8 RECOMMENDATION WHATCOM COUNTY SHERIFF'S OFFICE 9 ET AL, Noted for August 20th, 2026 10 Defendants. 11 This matter is before the Court on plaintiff’s filing of an amended complaint 12 pursuant to the Court’s order that he file one. Dkt. 32. Plaintiff is proceeding pro se and 13 in forma pauperis in this matter, which has been referred to the undersigned Magistrate 14 Judge. Mathews, Sec’y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 15 636(b)(1)(B); Local Rule MJR 4(a). For the reasons set forth below, plaintiff’s amended 16 complaint remains fatally deficient, and therefore the undersigned recommends that the 17 Court dismiss this action without prejudice prior to service for failure to state a claim 18 upon which relief may be granted. 19 On April 30, 2026, the undersigned issued a Report and Recommendation 20 concluding that the original complaint failed to state a claim upon which relief could be 21 granted and recommended that it not be served. Dkt. 19 at 1, 14-15. The Court 22 recommended that plaintiff be allowed to file an amended complaint and assert facts (if 23 such facts exist), to support his Fourteenth Amendment deliberate indifference claim 24 1 and, if possible, correct identified deficiencies. Id. Plaintiff was advised that any 2 amended complaint “must identify each individual defendant and describe what that 3 person did or failed to do, when they did it, and how their conduct harmed him.” Id. at 4 14. Plaintiff was further advised that supervisory officials could not be held liable absent 5 facts establishing their personal involvement or another basis for supervisory liability, 6 and that municipal defendants could not be sued under § 1983 without facts sufficient to 7 state a claim under Monell. Id. at 14-15. The Court also recommended “that leave to 8 amend be denied as futile as to plaintiff’s conspiracy allegations, claims against immune 9 defendants, and claims against entities that are not proper parties under § 1983.” Id. at 10 14-15. The deadline to file objections was May 14, 2026. 11 After the Court issued the Report and Recommendation, plaintiff filed objections 12 (Dkt. 21), numerous motions, supplements, and other duplicative filings. See, e.g., Dkt. 13 20 (Motion for Indigent Status, Waiver of Fees, and Appointment of a Private 14 Investigator); Dkt. 22 (Amended Motion for Indigent Status, Waiver of Fees, and 15 Appointment of a Private Investigator); Dkt. 24 (Omnibus Motion and Declaration); Dkt. 16 25 (Motion for Extension to Comply with Dkt. 19 and for Leave to File Amended 17 Complaint); Dkt. 26 (Motion for Extension to Comply with Dkt. 19 and Leave to File 18 Amended Complaint and Declaration); Dkt. 27 (Proposed Notice of Appeal); Dkt. 28 19 (Supplement to Motion for Leave to File); Dkt. 29 (Supplement to Proposed Notice of 20 Appeal); Dkt. 30 (Supplement to Motion for Leave to File); Dkt. 31 (Supplement to 21 Proposed Notice of Appeal); Dkt. 33 (Supplement to Motion for Leave to File); and Dkt. 22 34 (Supplement to Proposed Notice of Appeal). 23 24 1 On June 22, 2026, plaintiff filed an amended complaint. Dkt. 32 (Amended 2 Complaint). 3 Because plaintiff filed an amended complaint, on July 24, 2026, the District 4 Judge declined to adopt the Report and Recommendation. Dkt. 35. 5 DISCUSSION 6 The Court must dismiss the complaint of a prisoner proceeding in forma pauperis 7 “at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) 8 “fails to state a claim on which relief may be granted”’ or (c) “seeks monetary relief 9 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. 10 § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. 11 Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984), abrogated on other grounds 12 by Neitzke v. Williams, 490 U.S. 319 (1989). 13 Before the Court may dismiss the complaint as frivolous or for failure to state a 14 claim, it “must provide the [prisoner] with notice of the deficiencies of his or her 15 complaint and an opportunity to amend the complaint prior to dismissal.” McGuckin v. 16 Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX 17 Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see also Sparling v. Hoffman 18 Construction, Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 19 1446, 1449 (9th Cir. 1987). On the other hand, leave to amend need not be granted 20 “where the amendment would be futile or where the amended complaint would be 21 subject to dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (citing 22 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir.1990); Moore v. Kayport 23 Package Express, Inc., 885 F.2d 531, 538 (9th Cir.1989)). 24 1 To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the 2 conduct complained of was committed by a person acting under color of state law, and 3 (2) the conduct deprived a person of a right, privilege, or immunity secured by the 4 Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), 5 overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is 6 the appropriate avenue to remedy an alleged wrong only if both of these elements are 7 present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985). 8 The amended complaint is similar to the original complaint and fails to cure the 9 deficiencies identified in the Court’s prior Report and Recommendation. Compare Dkt. 4 10 (First Proposed Amended Complaint) with Dkt. 32 (Second Proposed Amended 11 Complaint); see also Dkt. 19 at 14-15. For example, plaintiff still names Whatcom 12 County Sheriff’s Office, City of Bellingham, Prosecutors of Whatcom County, Prosecutor 13 Sophia Padgett, Public Defender Krista Van Amerongen, Governor Bob Ferguson, and 14 a host of other defendants the Court explicitly enumerated as improper defendants in its 15 Report and Recommendation. Dkt. 32 at 3, 12. His allegations date back to 2012. Dkt. 16 32 at 5. Plaintiff also does not expand on his Fourteenth Amendment deliberate 17 indifference claim. 18 Plaintiff alleges that he suffers from severe back pain, requires a second 19 mattress because of an alleged spinal condition, he has dental problems, he was raped 20 while in a homeless shelter in Phoenix, his food has been poisoned, there is a 21 conspiracy against him, and that his left clavicle healed improperly, causing continuing 22 pain. Dkt. 32 at 5, 17-18. He requests relief requiring that he receive a second mattress 23 and that an orthopedic surgeon perform surgery to realign his clavicle, asserting that the 24 1 hospital should have operated upon his arrival. Id. However, plaintiff again fails to 2 identify facts showing that any of the named defendants acted, or failed to act, in a way 3 that shows they were deliberately indifferent to a serious medical need. Plaintiff’s 4 allegations in the proposed Amended Complaint therefore are insufficient to state a 5 claim. 6 CONCLUSION 7 Because plaintiff already has been granted the opportunity to state a viable 8 constitutional claim by filing an amended complaint – but the amended complaint 9 remains fatally deficient without any indication the deficiencies discussed above can be 10 cured – dismissal of this action for failure to state a claim under 42 U.S.C. § 1983 is 11 proper. Accordingly, all pending motions (Dkt. 20, 22, 24, 25, 26) should be denied as 12 moot. A proposed order and proposed judgment are attached. 13 Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall 14 have fourteen (14) days from service of this report to file written objections. See also 15 Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for 16 purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can 17 result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 18 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations 19 omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is 20 directed to set the matter for consideration on August 20th, 2026, as noted in the 21 caption. 22 23 Dated this 5th day of August, 2026. 24 1 A 2 Theresa L. Fricke United States Magistrate Judge 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24