McAdams v. Penrose et al

Filing 22

ORDER DIRECTING ADDITIONAL BRIEFING, DISMISSING DEFENDANT GEMBERLING AND STRIKING SURRESPONSE granting 12 Motion to Dismiss. Plaintiff's Surresponse, ECF No. 21 , is STRICKEN. Signed by Magistrate Judge Mary K. Dimke. (JW, Operations Clk)**5 PAGE(S), PRINT ALL**(Grant McAdams, Prisoner ID: 303490)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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GRANT THOMAS McADAMS,
NO: 4:16-cv-05133-MKD

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Plaintiff,
v.
JANET GEMBERLING, ANDREW
REMINGTON, MICHAEL TRUE,
JANE SNYDER, MICHAEL J.
REZNICEK, JOHN and JANE
DOE(S), and RICHARD and RACHEL
ROE(S),

ORDER DIRECTING ADDITIONAL
BRIEFING, DISMISSING
DEFENDANT GEMBERLING AND
STRIKING SURRESPONSE
ECF Nos. 12, 21

Defendants.

BEFORE THE COURT is Plaintiff’s request for a 30-day extension of time
for filing a brief addressing the Gunwall factors. ECF No. 19, ¶ 6.7. Plaintiff is a
prisoner at Coyote Ridge Corrections Center in Connell, Washington. Proceeding
pro se, Plaintiff filed suit and his case was removed from Franklin County Superior
Court as an action under 42 U.S.C. § 1983. ECF No. 1. Defendants are
represented by Jerry Scharosch. On April 10, 2017, Plaintiff was ordered to amend
or voluntarily dismiss his complaint. ECF No. 11.

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ORDER DIRECTING ADDITIONAL BRIEFING- 1

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A.

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On June 8, 2017, Plaintiff filed his First Amended Complaint. ECF No. 15.

Amended Complaint

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Plaintiff alleged that he was diagnosed with a delusional disorder by Defendant

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Snyder, the diagnosis was adopted by Defendant Reznicek, and Plaintiff suffered

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damages as a result. ECF No. 15 at 22-24. With respect to Defendants Remington

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and True, Plaintiff alleged they mishandled mail that was sent to Plaintiff by a

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court and this caused additional damages. ECF No. 15 at 16-21. Defendant

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Gemberling previously represented Plaintiff and had filed a Motion to Dismiss for

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Failure of Timely Service on April 17, 2017. ECF No. 12. Plaintiff did not name

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Defendant Gemberling in the First Amended Complaint. ECF No. 15 at 1.

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Accordingly, Defendant Gemberling’s motion to dismiss without prejudice

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(ECF No. 12) is granted.
Plaintiff’s Request for Extension of Time for Gunwall1 Briefing

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B.

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On June 20, 2017, Defendants Remington, True, Snyder, and Reznicek filed

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a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), ECF No. 16, set for

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hearing without argument August 8, 2017. On July 14, 2017, Plaintiff filed a

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 See

State v. Gunwall, 106 Wash.2d 54, 64 (1986) (courts will only engage in

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independent inquiry of state constitutional claims if the party invoking the state

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constitutional provision briefs the six nonexclusive factors).

ORDER DIRECTING ADDITIONAL BRIEFING- 2

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response, ECF No. 19, and on July 19, 2017, Defendants replied, ECF No. 20.

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Without seeking the Court’s prior approval, on August 3, 2017, Plaintiff filed a

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surresponse. ECF No. 21.

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Plaintiff’s First Amended Complaint, filed June 8, 2017, alleged violations

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of several of his rights protected by the federal constitution, including the First

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Amendment. ECF No. 15 at 6. In addition, Plaintiff alleged several of his rights

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under the Washington State Constitution were violated and he sought relief on that

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basis. ECF No. 15 at 13. In Defendants’ Motion to Dismiss, they respond that

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Plaintiff’s citation to the state constitution does not alone state a valid claim;

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Plaintiff has not specifically invoked, argued, and analyzed the state-based

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protections, including the Gunwall factors, and, under the facts presented, the

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Washington Constitution does not provide greater protection than those afforded

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by the federal constitutional provisions Plaintiff invoked. ECF No. 16 at 7-8. In

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his response to Defendants’ motion, Plaintiff asked the Court for a 30-day

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extension of time to brief the Gunwall factors. ECF No. 19, ¶ 6.7.

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After review, the Court grants Plaintiff’s request for an extension of 30 days
to brief the Gunwall factors.

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C.

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With respect to Plaintiff’s surresponse, ECF No. 21, the Court notes that this

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Surresponse

is the second such pleading Plaintiff has filed in this case. Previously, Plaintiff

ORDER DIRECTING ADDITIONAL BRIEFING- 3

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sought leave for filing a surresponse. ECF No. 7. A surresponse has been defined

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as “[a] second response by someone who opposes a motion.” Lee v. City of

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Kingman, 124 F.Supp.3d 985, 993 n.1 (D. Ariz. August 25, 2015) (citing Black’s

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Law Dictionary (10th ed. 2014)). Since Plaintiff is not a movant, he has filed a

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surresponse.

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Surresponses are not authorized by any Federal Rule of Civil Procedure,

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absent prior leave of court. Lee, 124 F.Supp.3d at 993 n.1 (citing in part Padilla v.

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Bechtel Const. Co., No. CV 06 286 PHX LOA, 2007 WL 625927, at *1 (D. Ariz.

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Feb. 27, 2007) (regarding surresponses).

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Here, nothing is offered to justify the Court’s consideration of a surresponse.

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Accordingly,

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IT IS ORDERED:

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1.

Defendant Gemberling Motion to Dismiss Without Prejudice, ECF

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No. 12, is GRANTED. Claims against Defendant Gemberling are dismissed

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without prejudice.

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2.

The Court directs additional briefing:
(a)

Plaintiff shall file any brief addressing the Gunwall factors by

September 11, 2017.

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(b)

Defendant shall file any response by September 25, 2017.

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(c)

Plaintiff may file any reply by October 5, 2017.

ORDER DIRECTING ADDITIONAL BRIEFING- 4

3.

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Plaintiff’s Surresponse, ECF No. 21, is STRICKEN as improperly

filed.
IT IS SO ORDERED. The District Court Executive is directed to enter
this Order and forward a copy to Plaintiff and counsel for Defendants.
DATED August 9, 2017.
s/ Mary K. Dimke
MARY K. DIMKE
UNITED STATES MAGISTRATE JUDGE

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ORDER DIRECTING ADDITIONAL BRIEFING- 5