Jackson v. Mallott et al

Filing 23

ORDER OF DISMISSAL granting plaintiff's 7 Motion to Amend Complaint; denying plaintiff's 18 Motion to Appoint Mediator; denying plaintiff's 20 Motion to Appoint Counsel; denying plaintiff's 22 Motion to Dismiss Claims against the Doe Officer, signed by Judge Robert S. Lasnik. (SWT) (cc: Plaintiff via USPS)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 MICHAEL E. JACKSON, 9 Plaintiff, 10 v. 11 12 CASE NO. C17-1521RSL ORDER OF DISMISSAL ORVILLE B. MALLOTT, et al., Defendants. 13 14 15 On October 6, 2017, plaintiff filed an application to proceed in forma pauperis 16 and a proposed complaint. Plaintiff filed a motion to amend the complaint on October 17 24, 2017. That motion (Dkt. # 7) is hereby GRANTED. 18 Plaintiff alleges that defendant Orville B. Mallott negligently drove his uninsured 19 vehicle into the back of another car, causing injury to plaintiff, Mallott’s passenger. 20 Plaintiff also alleges that an unidentified member of the Washington State Patrol 21 negligently allowed Mallott to drive the damaged vehicle on the roadways without 22 inspection, resulting in a second accident which further injured plaintiff. In his amended 23 complaint, plaintiff makes clear that he is asserting a § 1983 claim against both 24 defendants for violation of his Fifth and Eight Amendment rights. Dkt. # 7-1 at 1-2.1 25 1 26 The Order to Show Cause issued on November 13, 2017, based on plaintiff’s failure to identify the underlying constitution right that was violated (Dkt. # 14) is VACATED. ORDER OF DISMISSAL 1 Plaintiff seeks an award of damages to compensate him for the injuries arising from 2 defendants’ negligence. 3 As the Court noted in its previous order, merely negligent conduct on the part of 4 the defendant may not be enough to state a claim under 42 U.S.C. § 1983. In any given 5 suit, the plaintiff must prove a violation of a constitutional right, a burden which is 6 seldom met by a showing of negligence. In this case, plaintiff asserts violations of the 7 Fifth and Eighth Amendments. The Fifth Amendment, like the Fourteenth Amendment, 8 prohibits the government from depriving a citizen of life, liberty, or property without 9 due process of law. The Supreme Court has held, however, that the verb “deprive” 10 suggests a deliberate decision or action on the part of government officials to take life, 11 liberty, or property. Daniels v. Williams, 474 U.S. 327, 331 (1986). A simple lack of 12 care “suggests no more than a failure to measure up to the conduct of a reasonable 13 person” and does not implicate the abuse of power concerns that motivated the Founders 14 when they included the Due Process Clause in our Constitution. Id. at 332. 15 Plaintiff’s Eight Amendment claim fares no better. That Amendment states, 16 “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and 17 unusual punishment inflicted.” Plaintiff’s allegations have nothing to do with a jail 18 setting, the imposition of fines or a bail requirement, or punishment of any kind. 19 Plaintiff’s theory seems to be that the officer’s negligence resulted in the infliction of 20 pain, but “[t]he Cruel and Unusual Punishments Clause was designed to protect those 21 convicted of crimes.” Whitley v. Albers, 475 U.S. 312, 318 (1986) (internal quotation 22 marks omitted). Even if the clause could apply outside the prison setting, the conduct at 23 issue must purport to be punishment and must involve more than ordinary lack of care 24 for plaintiff’s health and safety. Id. at 319. 25 26 Plaintiff has not alleged a viable claim under federal law. The underlying allegations of negligence are state law matters over which this Court lacks subject ORDER OF DISMISSAL -2- 1 matter jurisdiction. In the absence of subject matter jurisdiction, this Court does not 2 have the power to hear and decided plaintiff’s claims. The above-captioned matter is 3 therefore DISMISSED. Plaintiff’s motion for the appointment of a mediator (Dkt. # 18) 4 and motion to dismiss the claims against the Doe officer (Dkt. # 22) are DENIED as 5 moot. Because plaintiff’s federal claims cannot be saved by amendment and his state 6 law claims, standing alone, cannot be asserted in this Court, his request for appointment 7 of counsel (Dkt. # 20) is also DENIED. 8 9 Dated this 12th day of January, 2018. 10 A Robert S. Lasnik United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER OF DISMISSAL -3-

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