Smith et al v. Washington State et al

Filing 84

ORDER denying 81 Motion for leave to file amicus curiae, interpreted as a Request to take judicial notice. Signed by Magistrate Judge J Richard Creatura.(CMG; cc to Plaintiffs & Mr. Mujahid-Leck.)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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8 ROBERT SMITH,

Plaintiff,

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CASE NO. 3:14-CV-05974-RBL-JRC
ORDER ON MOTION FOR LEAVE
TO FILE AMICUS CURIAE

v.

11 WASHINGTON STATE, et al.,
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Defendants.
The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States

14 Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local
15 Magistrate Judge Rules MJR1, MJR3 and MJR4.
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Before the Court is a “motion for leave to file amicus curiae the attached: Declaration to

17 Take Judicial Notice” filed by a third party, Jack A. Mujahid-Leck. Dkt. 81. Mr. Mujhaid-Leck
18 is a third party to this action and is housed at the Special Commitment Center (SCC). Id. Mr.
19 Mujahaid-Leck states that he and others have a strong interest in the subject matter and believe
20 that plaintiffs gave the Court information that requires correction. Id.
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Plaintiffs are four residents of the SCC -- Calvin Malone, George Mitchell, Darren

22 Perkins and Darrell Kent. Dkt. 51 ¶1.1-1.2; Dkt. 66 ¶ 1.1-1.2. Plaintiffs are non-smokers. Dkt. 51
23 ¶ 1.2; Dkt. 66 ¶ 1.2. Plaintiffs allege that the SCC is not in compliance with Washington state
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ORDER ON MOTION FOR LEAVE TO FILE
AMICUS CURIAE - 1

1 law, RCW 70.160, regarding smoking in and near a public building, see Dkt. 51 ¶ 5.35; Dkt. 66 ¶
2 5.33, and the SCC residents have been allowed to freely use tobacco products since 2004. Dkt.
3 51 ¶ 5.7; Dkt. 66 ¶ 5.5. Allegedly, defendants facilitated the continued use of tobacco products
4 within the SCC and the SCC smoking policy has been in effect “for years.” Dkt. 51 ¶ 5.39-5.40;
5 Dkt. 66 ¶ 5.35.
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Although Mr. Mujhaid-Leck titled his pleading as a “motion for leave to file amicus

7 curiae,” the Court interprets the motion as a request to take judicial notice. Courts may take
8 judicial notice of adjudicative facts that are “not subject to reasonable dispute.” Fed. R. Evid.
9 201(b). A fact is not subject to reasonable dispute, and is thus subject to judicial notice, only
10 where the fact is either “(1) generally known within the territorial jurisdiction of the trial court or
11 (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
12 reasonably be questioned.” Fed. R. Evid. 201(b).
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The declaration of judicial notice states that smoke does not blow into the living units at

14 the SCC and that the fresh air pads are free of any smokers most of the time. Dkt. 81 at 5. The
15 declaration also appears to be signed by other SCC residents who are both smokers and non16 smokers. Id. at 6.
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The Court declines to take judicial notice of the facts asserted in Mr. Mujhaid-Leck’s

18 motion. None of the facts alleged by Mr. Mujhaid-Leck fall within the category that can be
19 judicially noticed under Rule 201. The facts are subject to reasonable dispute. See Fed. R. Evid.
20 201(b). Accordingly, the Court denies Mr. Mujhaid-Leck’s motion. Dkt. 81.
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Dated this 16th day of November, 2015.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON MOTION FOR LEAVE TO FILE
AMICUS CURIAE - 2