Bettys v. Warner et al

Filing 24

ORDER adopting 19 Report and Recommendation re: 21 Plaintiff's Objections; granting 16 Defendants' Motion to Dismiss. Signed by Judge Barbara J. Rothstein on July 31, 2014. (BW)

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UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOHN E. BETTYS,

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Plaintiff,
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v.
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BERNARD WARNER, et al.,
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Defendants.
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____________________________________)

CASE NO.

CV14-5040-BJR-KLS

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

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ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANTS’ MOTION TO DISMISS

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The Court, having reviewed Defendants’ Motion to Dismiss [Docket No. 16], the Report

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and Recommendation [Docket No.19] of the Honorable Karen L. Strombom, United States

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Magistrate Judge, Plaintiff’s Objections [Docket No. 21] and the balance of the record, does

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hereby find that:

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(1)

The Court adopts the Report and Recommendation;

(2)

The Court reviews de novo “those portions of the [magistrate judge’s] report or

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specific proposed findings or recommendations to which objection is made.”
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (citing 28
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U.S.C. § 636(b)(1) (emphasis and insertion in original)). To survive a motion to

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dismiss made pursuant to Fed. R. Civ. P. 12(b)(6), a plaintiff must plead

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“sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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“A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.”
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Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

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“Dismissal can be based on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable theory.” Balistreri v. Pacifica Police

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Dept., 901 F.2d 696, 699 (9th Cir. 1990) (citing Robertson v. Dean Witter

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Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)).

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(3)

Plaintiff makes the following objections:

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a. That the Magistrate Judge improperly found that Plaintiff had alleged

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prejudice in only two pending cases when Plaintiff lists five additional

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Washington Court of Appeals cases, a Ninth Circuit case, and avers that he

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has three pending actions before the Washington Supreme Court. Pl.’s Obj. at

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1. Plaintiff generally argues that “several” of these cases were prejudiced by
Defendants’ actions. Id. at 2.

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b. That the loss of his files was not harmless because it prevented him from
seeking certiorari with the Supreme Court in one of his cases before the Ninth
Circuit, “where all the evidence was destroyed” by Defendants Teachout and
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Diimell. Pl.’s Obj. at 1.

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c. That the Magistrate Judge erred in finding that Defendant Walker did not

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illegally act as an attorney because Walker “enter[ed] into my court case to

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schedule hearings,” and “did not allow an order to stop destruction of

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documentation and legal evidence.”

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Plaintiff avers that these actions

prejudiced a case before the Ninth Circuit. Id. at 2.

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d. That the Magistrate Judge mistakenly confined her review of Defendants’
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actions to five boxes of files that Washington Superior Court had ordered be

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shipped to Plaintiff from the county jail.

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another six boxes of “legal evidence and pleadings” that Plaintiff avers were

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“never given to the Plainitiff [sic] . . . .” Id. at 2-3.

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Plaintiff avers that there were

e. Generalized grievances regarding the conditions of incarceration for Plaintiff

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and other prisoners.

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(4)

The Court finds that the Magistrate Judge correctly concluded in the Report and

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Recommendation that Plaintiff’s claims should be dismissed. Plaintiff fails to

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plead sufficient facts to state a claim for relief that is plausible on its face. In

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particular, Plaintiff has not pled with sufficient clarity how Defendants’ alleged

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actions have caused him injury. While Plaintiff alleges that his legal efforts have

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been prejudiced because of the destruction of, or lack of access to, his legal files,

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he does not allege which cases, if any, have been prejudiced, and in what manner

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Defendants’ alleged actions have caused him prejudice in said cases. 1

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Because the Magistrate Judge correctly determined that Plaintiff failed to plead facts sufficient to establish injury
from Defendants’ alleged actions, the Court does not reach the muddled factual question of whether the legal files at
the heart of Plaintiff’s claim were, in fact, destroyed, or if they were shipped to another location at Plaintiff’s

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(5)

Accordingly, Defendants’ Motion to Dismiss is GRANTED; and

(6)

The Clerk of the Court is respectfully directed to send copies of this Order to
Plaintiff, Defendants, and to Judge Strombom.

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IT IS SO ORDERED.

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DATED this 31st day of July, 2014.

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BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

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request, or are available to Plaintiff. Whether or not Plaintiff has access to all his files, he has failed to sufficiently
plead injury from his alleged lack of access.

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