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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MICHAEL E. JACKSON,

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Plaintiff,

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v.

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CASE NO. C17-1521RSL

ORDER OF DISMISSAL
ORVILLE B. MALLOTT, et al.,
Defendants.

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On October 6, 2017, plaintiff filed an application to proceed in forma pauperis

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and a proposed complaint. Plaintiff filed a motion to amend the complaint on October

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24, 2017. That motion (Dkt. # 7) is hereby GRANTED.

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Plaintiff alleges that defendant Orville B. Mallott negligently drove his uninsured

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vehicle into the back of another car, causing injury to plaintiff, Mallott’s passenger.

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Plaintiff also alleges that an unidentified member of the Washington State Patrol

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negligently allowed Mallott to drive the damaged vehicle on the roadways without

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inspection, resulting in a second accident which further injured plaintiff. In his amended

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complaint, plaintiff makes clear that he is asserting a § 1983 claim against both

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defendants for violation of his Fifth and Eight Amendment rights. Dkt. # 7-1 at 1-2.1

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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

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Plaintiff seeks an award of damages to compensate him for the injuries arising from

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defendants’ negligence.

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As the Court noted in its previous order, merely negligent conduct on the part of

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the defendant may not be enough to state a claim under 42 U.S.C. § 1983. In any given

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suit, the plaintiff must prove a violation of a constitutional right, a burden which is

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seldom met by a showing of negligence. In this case, plaintiff asserts violations of the

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Fifth and Eighth Amendments. The Fifth Amendment, like the Fourteenth Amendment,

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prohibits the government from depriving a citizen of life, liberty, or property without

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due process of law. The Supreme Court has held, however, that the verb “deprive”

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suggests a deliberate decision or action on the part of government officials to take life,

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liberty, or property. Daniels v. Williams, 474 U.S. 327, 331 (1986). A simple lack of

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care “suggests no more than a failure to measure up to the conduct of a reasonable

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person” and does not implicate the abuse of power concerns that motivated the Founders

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when they included the Due Process Clause in our Constitution. Id. at 332.

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Plaintiff’s Eight Amendment claim fares no better. That Amendment states,

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“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

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unusual punishment inflicted.” Plaintiff’s allegations have nothing to do with a jail

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setting, the imposition of fines or a bail requirement, or punishment of any kind.

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Plaintiff’s theory seems to be that the officer’s negligence resulted in the infliction of

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pain, but “[t]he Cruel and Unusual Punishments Clause was designed to protect those

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convicted of crimes.” Whitley v. Albers, 475 U.S. 312, 318 (1986) (internal quotation

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marks omitted). Even if the clause could apply outside the prison setting, the conduct at

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issue must purport to be punishment and must involve more than ordinary lack of care

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for plaintiff’s health and safety. Id. at 319.

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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
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matter jurisdiction. In the absence of subject matter jurisdiction, this Court does not

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have the power to hear and decided plaintiff’s claims. The above-captioned matter is

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therefore DISMISSED. Plaintiff’s motion for the appointment of a mediator (Dkt. # 18)

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and motion to dismiss the claims against the Doe officer (Dkt. # 22) are DENIED as

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moot. Because plaintiff’s federal claims cannot be saved by amendment and his state

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law claims, standing alone, cannot be asserted in this Court, his request for appointment

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of counsel (Dkt. # 20) is also DENIED.

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Dated this 12th day of January, 2018.

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A

Robert S. Lasnik
United States District Judge

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ORDER OF DISMISSAL

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