Richey v. Warner et al

Filing 26

ORDER that the Court converts' Defendants 13 MOTION to Dismiss into a motion for summary judgment. Defendants' will have until 7/11/14 to submit additional material. Plaintiff has until 7/25/14 to respond. Any reply that defendants file will be due on or before 8/8/14. Signed by Magistrate Judge J Richard Creatura. (CMG; cc to Plaintiff)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10

THOMAS WILLIAMSINCLAIR RICHEY,

11

Plaintiff,
v.

12
13
14

BERNARD WARNER, STEVEN
SINCLAIR, LISA OLIVER-ESTES, SCOTT
FRAKES.

17
18
19
20
21
22
23

ORDER CONVERTING
DEFENDANTS’ MOTION TO
DISMISS TO A MOTION FOR
SUMMARY JUDGMENT

Defendants.

15
16

CASE NO. C14-5159 BHS-JRC

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States
Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §
636(b)(1)(A) and (B), and Magistrate Judge Rules MJR3 and MJR4.
Defendants filed a motion to dismiss the action as frivolous and asked the Court to issue
plaintiff a strike pursuant to 28 U.S.C. 1915(g) (Dkt. 13). Plaintiff has responded (Dkt. 19). The
Court is converting defendants’ motion to a motion for summary judgment because the
defendants are challenging the veracity of plaintiff’s complaint and not the sufficiency of the
pleading.

24
ORDER CONVERTING DEFENDANTS’ MOTION
TO DISMISS TO A MOTION FOR SUMMARY
JUDGMENT - 1

1

In their motion to dismiss defendants reference plaintiff’s motion for temporary

2 injunctive relief and the responses and replies to that motion (Dkt. 13, pp. 5, 7). When
3 considering a motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6), a court does not
4 normally look outside the pleadings unless the document or information being offered is
5 incorporated by referenced in the complaint and the document’s authenticity is not in question.
6 Dunn v. Castro, 621 F.3d 1196, 1204 n.6 (9th Cir. 2010); Knievel v. ESPN, 393 F.3d 1068, 1076
7 (9th Cir. 2005). Neither the motion for a temporary restraining order nor the information that
8 was submitted in response to the motion were incorporated by reference into the complaint (Dkt.
9 6).
10

Defendants’ reference to this information is material to defendants’ motion because it

11 shows that plaintiff filed his action challenging the Earned Incentive Program knowing that he
12 receives the same three meals a day as other inmates and knowing that his action really
13 addressed only extra food (Dkt. 18). Plaintiff did not state that the action addressed only extra
14 food in the complaint. In the complaint when describing the Earned Incentive Program plaintiff
15 stated “[f]ood deprivation is used under the EIP as punishment, Prisoners on Level-2 are
16 deprived of food that is attainable or served to Level-1 prisoners.” (Dkt. 6, p. 3).
17

The materials outside the pleadings also address plaintiff First Amendment claim that his

18 access to a computer system called “JPay” and his access to telephones was “restricted.” (Dkt. 6,
19 p. 3). In the materials regarding the motion for temporary restraining order, defendants made
20 clear that plaintiff has access to the computer system and telephone system when they stated
21 “Inmates on Level II status have access to JPay, food, telephones, and ice.” (Dkt. 12, p. 2).
22

In order for the Court to consider the information from the motion for injunctive relief,

23 defendants’ motion to dismiss must be converted to a motion for summary judgment. .For over
24
ORDER CONVERTING DEFENDANTS’ MOTION
TO DISMISS TO A MOTION FOR SUMMARY
JUDGMENT - 2

1 fifty years, this has been the proper procedure for consideration of statements, affidavits, and
2 materials outside the pleadings. Suckkow Borax Mine Consolidated v. Borax Consolidated, 185
3 F.2d 196, 205 (9th Cir. 1951) (discussing converting a motion when matters outside the
4 pleadings are submitted). The Supreme Court did not alter this area of the law with the decision
5 in Aschroft v. Iqbal, 556 U.S. 662 (2009). Instead, the Court in Iqbal clarified that the complaint
6 must be supported by well pled factual allegations. Id. at 679. In their motion to dismiss,
7 defendants infer that the Court does not need to accept plaintiff’s allegations as true (Dkt. 13, p.
8 3) (citing Sprewell v. Golden State Warriors, 266 f.3d 978, 988 (9th Cir. 2001). Sprewell sets
9 forth an exception to the normal rule regarding motions to dismiss, in this the court stated:
10

Review is limited to the contents of the complaint. See Enesco Corp. v.
Price/Costco, Inc., 146 F.3d 1083, 1085 (9th Cir.1998). All allegations of material
fact are taken as true and construed in the light most favorable to the nonmoving
party. See id. The court need not, however, accept as true allegations that
contradict matters properly subject to judicial notice or by exhibit. See Mullis v.
United States Bankr.Ct., 828 F.2d 1385, 1388 (9th Cir.1987). Nor is the court
required to accept as true allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences. See Clegg v. Cult Awareness
Network, 18 F.3d 752, 754–55 (9th Cir.1994). A complaint should not be
dismissed unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of the claim that would entitle the plaintiff to relief. See Morley v.
Walker, 175 F.3d 756, 759 (9th Cir.1999).

11
12
13
14
15
16

Sprewell, 266 F.3d at 988.
17
Defendants argue that there is an exception when the factual allegation in the complaint is
18
an unwarranted deduction of fact or an inference that is unreasonable “in light of the information
19
provided in the complaint.” (Dkt. 13, p. 3). The Supreme Court addressed this issue in Iqbal as
20
well:
21
22
23

Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id., at 555, 127 S.Ct. 1955 (Although for
the purposes of a motion to dismiss we must take all of the factual allegations in
the complaint as true, we “are not bound to accept as true a legal conclusion
couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks

24
ORDER CONVERTING DEFENDANTS’ MOTION
TO DISMISS TO A MOTION FOR SUMMARY
JUDGMENT - 3

1
2

a notable and generous departure from the hyper-technical, code-pleading regime
of a prior era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.

3 Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555(2007). Plaintiff
4 set forth allegations -- not simply conclusions (Dkt. 6). Defendants’ motion challenges the
5 veracity of plaintiff’s allegations and not the sufficiency of the complaint. Fed. R. Civ. P. 12(d)
6 provides:
7
8

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.

9
The Court converts defendants’ motion to dismiss into a motion for summary judgment.
10
Defendants’ will have until July 11, 2014 to submit additional material. Plaintiff has until July
11
25, 2014 to respond. Any reply that defendants file will be due on or before August 8, 2014. At
12
that time, the Court will consider whether or not plaintiff’s action is frivolous or malicious. The
13
Clerk’s Office is instructed to remove the April noting date for the motion to dismiss, Dkt. 13,
14
and re-note the matter for August 8, 2014.
15
Dated this 17th day of June, 2014.
16
17

A

18

J. Richard Creatura
United States Magistrate Judge

19
20
21
22
23
24
ORDER CONVERTING DEFENDANTS’ MOTION
TO DISMISS TO A MOTION FOR SUMMARY
JUDGMENT - 4