Stephens v. Fredrickson et al

Filing 47

ORDER granting defendants' 45 Motion for Extension of Time; and granting plaintiff's 35 Motion for Extension of Time; and denying plaintiff's 36 Motion to File Second Amended Complaint. Plaintiff may file a motion and proposed second amended complaint no later than 2/26/2013. A COPY OF THIS ORDER HAS BEEN MAILED TO PLAINTIFF TODAY. Signed by Hon. Mary Alice Theiler.(GB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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09 FRED A. STEPHENS,
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Plaintiff,
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v.
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SGT. FREDRICKSON, et al.,
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Defendants.
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____________________________________ )

CASE NO. C12-1067-RAJ-MAT

ORDER RE: MOTION TO AMEND
AND MOTIONS FOR EXTENSIONS
OF TIME

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Plaintiff Fred A. Stephens proceeds pro se in this civil rights matter pursuant to 42

16 U.S.C. § 1983. Plaintiff seeks to file a Second Amended Complaint (Dkt. 36) and to extend
17 the time for pretrial preparations (Dkt. 35), while defendants seek an extension of time to file
18 dispositive motions (Dkt. 45). Now, having considered the pending motions, the Court does
19 hereby find and ORDER as follows:
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(1)

Plaintiff seeks to amend his complaint by, inter alia, naming two additional

21 defendants – the Washington State Department of Corrections (DOC) and Dan Pacholke, the
22 DOC Director of Prisons. Federal Rule of Civil Procedure 15 provides that “leave [to amend a

ORDER
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01 pleading] shall be freely given when justice so requires.” Fed. R. Civ. P. 15 (a). Leave to
02 amend may be denied where there is undue delay, bad faith or dilatory motive, undue prejudice
03 to the opposing party, or when the amendment would be futile. See Foman v. Davis, 371 U.S.
04 178, 182 (1962).
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Plaintiff arguably sets forth a basis for the inclusion of Pacholke in this case, raising a

06 claim regarding the DOC’s “no contract” policy and noting Pacholke’s previously submitted
07 affidavit addressing that policy. (See Dkt. 36 and Dkt. 15-1.) But see Taylor v. List, 880 F.2d
08 1040, 1045 (9th Cir. 1989) (a plaintiff may not hold supervisory personnel liable under § 1983
09 for constitutional deprivations under a theory of supervisory liability). However, neither
10 states, nor entities that are arms of the state, such as the DOC, are persons for purposes of §
11 1983. Howlett v. Rose, 496 U.S. 356, 365-66 (1990); Hale v. Arizona, 993 F.2d 1387, 1398
12 (9th Cir. 1993) (en banc). See also Brooks v. Sulphur Springs Valley Electric Coop., 951 F.2d
13 1050, 1053 (9th Cir. 1991) (“The Eleventh Amendment’s jurisdictional bar covers suits naming
14 state agencies and departments as defendants, and applies whether the relief sought is legal or
15 equitable in nature.”); S. Pac. Transp. Co. v. City of L.A., 922 F.2d 498, 508 (9th Cir. 1990)
16 (since defendant named undisputedly a state agency, claims are “prohibited by the eleventh
17 amendment even though they sought prospective relief.”) Because plaintiff may not sue DOC
18 in this lawsuit, his proposed amendment is, in this respect, futile.
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Given the above, plaintiff’s motion to amend (Dkt. 36) is DENIED. However, the

20 motion is denied without prejudice to the submission of a second amended complaint including
21 Pacholke as a defendant and omitting the DOC. The Court further finds the allowance for the
22 submission of a second amended complaint appropriate in light of the fact that further

ORDER
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01 amendment could be required if this matter is consolidated with a similar case currently
02 pending in this Court. See Stephens v. Frederickson, C12-1898-RAJ (Dkt. 7 (Report and
03 Recommendation that case be consolidated with C12-1067 and noting that plaintiff “may move
04 to file an amended complaint in C12-1067-RAJ-MAT.”))
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(2)

Both parties in this matter seek an extension of currently pending Court

06 deadlines. (Dkt. 35 (seeking extension of discovery and dispositive motion deadlines) and
07 Dkt. 45 (seeking extension of dispositive motion deadline).) The Court agrees that the
08 deadlines in this matter must be reset. However, the outstanding issue of consolidation and the
09 absence of a second amended complaint appropriate for filing complicate the assignment of
10 deadlines.

The Court, therefore, finds it appropriate to set an initial deadline for the

11 submission of a proposed second amended complaint. The motions for extension of time
12 (Dkts. 35 & 45) are GRANTED. Plaintiff shall submit a motion to amend and proposed
13 second amended complaint no later than forty-five (45) days of the date of this Order and the
14 Court will reset the discovery and dispositive motion deadlines following receipt of the answer
15 to the second amended complaint.
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(3)

The Clerk shall direct copies of this Order to the parties and to the Honorable

17 Richard A. Jones.
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DATED this 9th day of January, 2013.

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Mary Alice Theiler
United States Magistrate Judge

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ORDER
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