Lawson v. Warner et al

Filing 54

ORDER denying 49 Motion to convert Defendant's Motion to Dismiss to a Motion for Summary Judgment, and granting 52 Motion for Extension of Time. Signed by Magistrate Judge Karen L Strombom.(CMG; cc to Plaintiff)

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 5 6 7 GEOFFREY ROBERT LAWSON SR., Plaintiff, 8 10 11 12 13 BERNARD WARNER, KIM WYMAN, JEFFREY A UTTECHT, ROY GONZALES, BAILEY, RAND SIMMONS, L WONDERS, CHE, MILLER, FORD, GUNTER, AYERS, STUENKEL, JOHN 1 DOE, JOHN DOE 2, Defendants. 14 15 ORDER ON PLAINTIFF’S PENDING MOTIONS v. 9 CASE NO. C14-5100 RBL-KLS This matter has been referred to United States Magistrate Judge Karen L. Strombom 16 pursuant to 28 U.S.C. § 636(b)(1), Local Rules MJR 3 and 4, and Fed. R. Civ. P. 72. Defendants 17 filed a Motion to Dismiss and provided plaintiff with the required notices regarding that motion 18 Dkt. 36 and 37. In addition to responding to defendants’ motion (Dkt. 45), Mr. Lawson filed a 19 motion to convert the Motion to Dismiss to a Motion for Summary Judgment (Dkt. 49) and a 20 Motion for Extension of Time. Dkt. 52. 21 A. 22 Mr. Lawson filed a motion asking for an extension of time to excuse his late filing of a Extension of time to file a reply. Dkt. 52. 23 reply to defendants’ opposition to a motion to convert defendants’ motion to dismiss to a motion 24 for summary judgment. Dkt. 52. Plaintiff’s motion for an extension of time is Granted. ORDER ON PLAINTIFF’S PENDING MOTIONS1 1 B. Motion to Convert a Motion to Dismiss to a Motion for Summary Judgment. Dkt. 2 45. 3 Mr. Lawson asks the undersigned to convert a motion to dismiss into a motion for 4 summary judgment and consider nearly six hundred pages of exhibits he attached to a 5 memorandum. Dkt. 45 and 49. Defendants filed their motion to dismiss on July 3, 2014 and 6 noted the motion for August 22, 2014. Dkt. 36. Defendants gave plaintiff proper notices 7 regarding the dispositive motion. Dkt. 37. In response plaintiff filed a motion asking to stay the 8 motion to dismiss so that he could conduct discovery and a notice that he intended to file a 9 surreply regarding a discovery motion. Dkt. 42. The undersigned denied the motion to stay 10 defendants’ motion to dismiss, but gave Mr. Lawson until September 26, 2014, to file a response 11 and the undersigned re-noted defendants’ motion for October 3, 2014. Dkt. 43. Mr. Lawson 12 signed his response on September 26, 2014, and it was received by the Court on October 2, 2014. 13 The response is a 23 page memorandum with over five hundred pages of exhibits. Dkt. 45. 14 Defendants filed a reply asserting that the response was untimely and introduced evidence 15 outside of the record. Dkt. 46. Defendants argue that Mr. Lawson is attempting to supplement 16 his complaint and add allegations not pled in the complaint. Dkt. 46, p. 3. 17 A motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal 18 sufficiency of the complaint. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 19 2011). Fed. R Civ. P. 12(d) states: 20 21 If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. 22 The Court will not look outside the pleadings to test the legal sufficiency of Mr. Lawson’s 23 complaint. The rules regarding dismissal of an action are lenient and plaintiff need only pled 24 ORDER ON PLAINTIFF’S PENDING MOTIONS2 1 facts “to state a facially plausible claim to relief.” Conservation Force v. Salazar, 646 F.3d 2 at1242. (quoting, Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th 3 Cir.2010)). In addition, Mr. Lawson may have an opportunity to amend his complaint as the 4 Ninth Circuit has held that unless it is absolutely clear that amendment would be futile, a pro se 5 litigant must be given the opportunity to amend his complaint to correct any deficiencies. Noll v. 6 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 7 Mr. Lawson’s motion to convert defendants’ motion to dismiss into a motion for 8 summary judgment (Dkt. 45) is DENIED. The undersigned will consider the memorandum filed 9 by Mr. Lawson as a response to the motion to dismiss but will not look outside the pleadings or 10 consider the exhibits filed by Mr. Lawson’s memorandum. Dkt. 45. The undersigned will file a 11 separate Report and Recommendation regarding defendants’ motion to dismiss. 12 13 Conclusion Plaintiff’s Motion to Convert Defendants’ Motion to Dismiss to a Motion for Summary 14 Judgment (Dkt. 49) is DENIED and his Motion to Extend Time for filing a reply to defendants’ 15 Motion to Dismiss (Dkt. 52) is GRANTED. 16 Dated this 30th day of December, 2014. 17 18 A 19 Karen L. Strombom United States Magistrate Judge 20 21 22 23 24 ORDER ON PLAINTIFF’S PENDING MOTIONS3

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