Irby v. State of Washington et al
Filing
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ORDER that the Court denies plaintiff's motion for certificate of appealability 266 ; motion to strike defendant Furst's motion for summary judgment 275 ; motion for enlargement of time 276 ; motion to transmit record 278 ; motion for c larification 285 , and motion to strike 290 insofar as it makes no request for this Court's action. The Court grants plaintiff's motion to strike 290 insofar as the Court interprets it as a motion to withdraw, and grants plaintiff 9;s motion to dismiss defendants 293 . Because the Court granted plaintiff's motion to strike 290 in part, the Clerk is directed to strike plaintiff's motion for clarification 270 . Signed by Magistrate Judge J Richard Creatura. (cc: USCA) **6 PAGE(S), PRINT ALL**(Terrance Irby, Prisoner ID: 631794)(CMG)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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TERRANCE JON IRBY,
Plaintiff,
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ORDER ON MISCELLANEOUS
MOTIONS
v.
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CASE NO. 3:15-cv-05208-RBL-JRC
STATE OF WASHINGTON, et al.,
Defendants.
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Plaintiff Terrance Jon Irby, proceeding pro se and in forma pauperis, filed this civil rights
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complaint under 42 U.S.C. § 1983. Pending before the Court are plaintiff’s eight miscellaneous
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motions. 1
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Plaintiff has filed: 1) motion for certificate of interlocutory appeal (Dkt. 266); 2) motion for
clarification/instructions (Dkt. 270); 3) motion to strike defendant Furst’s motion for summary judgment (Dkt. 275);
4) motion for enlargement of time (Dkt. 276); 5) motion to transmit record to the Ninth Circuit (Dkt. 278); 6) motion
for clarification (Dkt. 285); 7) motion to strike (Dkt. 290); and 8) motion to dismiss parties (Dkt. 293). Plaintiff also
has a motion for reconsideration pending before the Honorable Ronald B. Leighton (Dkt. 257) and defendant Furst
has filed a motion for summary judgment (Dkt. 261). Those motions will be dealt with in separate orders or reports
and recommendations.
ORDER ON MISCELLANEOUS MOTIONS - 1
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BACKGROUND
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Plaintiff originally filed four separate actions, which were consolidated in June of 2017.
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Dkt. 111. Plaintiff filed a consolidated amended complaint that same month. Dkt. 116. He filed a
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second amended complaint in September of 2017 (Dkt. 165), as well as a subsequent correction
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to the complaint (Dkt. 167). Because both the Court and defendants were confused by plaintiff’s
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numerous filings, the Court granted plaintiff’s request to “correct his ‘corrected second amended
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complaint’” (Dkt. 189 at 3-4), and directed the clerk to file his third amended complaint (Id.;
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Dkts. 178, 190). The Court subsequently recommended that all his claims except his claims
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pertaining to the American with Disability Act (“ADA”) and access to courts be dismissed,
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warning plaintiff that failure to provide a plain statement of his remaining claims would result in
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a recommendation for dismissal. Dkt. 244. The District Court adopted the Court’s
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recommendation. Dkt. 245.
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Plaintiff subsequently filed the current pending motions (Dkts. 266, 270, 275, 276, 278,
285, 290) along with numerous other filings.
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DISCUSSION
I.
Order to Show Cause
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On February 20, 2018, the Court ordered the parties to show cause why this case should
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not be stayed pending the resolution of plaintiff’s appeal to the Ninth Circuit Court of Appeals.
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Dkt. 282. State defendants filed a response on February 26, 2018, stating they do not oppose a
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stay on the case. Dkt. 284. On February 27, 2018, the Ninth Circuit issued an order dismissing
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plaintiff’s appeal for lack of jurisdiction. Dkt. 286. Defendant Furst then filed a response
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objecting to the stay because plaintiff’s appeal had been terminated. Dkt. 291. Because the Ninth
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ORDER ON MISCELLANEOUS MOTIONS - 2
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Circuit appeal has been terminated, and with the benefit of defendants’ responses to the order to
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show cause, the Court declines to stay this case at this time.
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II.
Motion to Strike Plaintiff’s Motion and Admission of Evidence
Plaintiff requests that, in light of the Ninth Circuit’s decision to deny his appeal, the
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Court strike two of his motions, citing to Dkts. 270 and 277. Dkt. 290. The Court interprets this
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motion as a motion to withdraw plaintiff’s previous motions. His motion at Dkt. 270 is a motion
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for clarification, but the document located at Dkt. 277 is an order signed by Judge Leighton.
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Because the Court has not yet ruled on plaintiff’s motion at Dkt. 270 (see LCR 7(l)), the Court
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grants his motion to withdraw (Dkt. 285) as to the motion for clarification. The Clerk is directed
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to strike plaintiff’s motion for clarification at Dkt. 270. However, because the other identified
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“motion” is an order from Judge Leighton, the Court denies plaintiff’s motion as to the order at
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Dkt. 277.
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Plaintiff has also provided additional exhibits and additional argument with this motion.
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See Dkt. 290. However, he makes no further request for the Court’s action. Because the
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remainder of his motion does not appear to request additional action from the Court, the Court
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denies it as moot.
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III.
Motion for Clarification
It is unclear what plaintiff is requesting from the Court with his motion for clarification.
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It appears that he is trying to explain which document is the operative complaint, pointing out
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that there are several pending motions to which defendants have not responded, and ensuring that
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defendant Furst’s answer at Dkt. 210 is “renoted” with his fourth amended complaint. Dkt. 285.
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The remainder of the filing appears to be additional argument supplementing his complaint,
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largely regarding claims the Court has already dismissed. See id. Insofar as plaintiff requests
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ORDER ON MISCELLANEOUS MOTIONS - 3
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defendants answer his motions, the time to answer has already passed and the Court declines to
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renote the motions to allow for additional time. Insofar as plaintiff attempts to clarify his own
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filings, the Court takes note of those clarifications. Otherwise, because plaintiff does not appear
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to request additional action from the Court, the motion for clarification (Dkt. 285) is denied as
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moot.
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IV.
Motion to Strike Defendant Furst’s Motion
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Plaintiff also moves to strike defendant Furst’s motion for summary judgment. Dkt. 275.
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Under the local rules, a motion to strike must be incorporated into a response rather than filed as
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a stand alone motion. LCR 7(g). Therefore, the Court interprets plaintiff’s motion (Dkt. 275) as a
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response to defendant Furst’s motion for summary judgment containing a motion to strike.
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Because the Court has not yet made a determination on the merits of defendant Furst’s motion,
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the Court denies plaintiff’s motion to strike (Dkt. 275), but will consider it as a response to
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defendant Furst’s motion for summary judgment (Dkt. 261) when the Court makes a
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determination on that motion.
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V.
Ninth Circuit Motions
Plaintiff requests that the Court provide him a certificate for interlocutory appeal (Dkt.
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266) and that the Court transmit the record from this case to the Ninth Circuit (Dkt. 278). After
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filing his motion for the certificate (Dkt. 266), but before the Court made a ruling, petitioner filed
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an interlocutory appeal anyway (Dkt. 273). However, the Ninth Circuit has returned a mandate
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denying the interlocutory appeal. Dkt. 297. Therefore, because petitioner filed his appeal without
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the certificate and because the Ninth Circuit has already disposed of his appeal, the Court denies
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the motion for certificate (Dkt. 266) and motion to transmit the record (Dkt. 278) as moot.
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ORDER ON MISCELLANEOUS MOTIONS - 4
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VI.
Motion for Enlargement of Time and Joinder
Plaintiff requests the Court retroactively grant him additional time in order to file his
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proposed fourth amended complaint and to join additional defendants in his action. Dkt. 276.
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Defendants oppose this motion, noting that plaintiff has not sought leave from the Court to file
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this particular amended complaint and that it “rehashes all of [plaintiff’s] original – and now
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dismissed – claims.” Dkt. 280 at 3. Defendants also argue that the new defendants to be joined
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are defense counsel and improper here. Id. at 4. The Court agrees.
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A party may “amend its pleading once as a matter of course,” but must receive the
Court’s leave or the opposing party’s written consent in order to amend a pleading otherwise.
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Fed. R. Civ. P. 15(a). Here, plaintiff has received neither. Further, he has already filed numerous
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other complaints. See Dkts. 116, 165, 167, 178, 182, 190. Accepting this additional, overlength
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pleading focusing on claims the Court has already dismissed would serve no purpose.
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Further, defendants may only be joined when their absence would prevent “complete
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relief among the existing parties” or when the person to be joined “claims an interest relating to
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the subject of the action . . . .” Fed. R. Civ. P. 19(a)(1). As defendants properly note, neither
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circumstance applies here.
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Therefore, plaintiff’s motion for enlargement of time to file his fourth amended
complaint and joinder of defendants (Dkt. 276) is denied.
VII.
Motion to Dismiss Defendants
Finally, plaintiff has filed a motion to dismiss defendant Robertson and/or Roberts. Dkt.
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293. Plaintiff notes that defendant Robertson/Roberts has already been dismissed, but that
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defendants’ counsel continues to enter orders of appearance for defendant Robertson. The Court
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notes that defendant “Roberts” was dismissed in November of 2017 (Dkt. 225) and defendant
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ORDER ON MISCELLANEOUS MOTIONS - 5
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“Robertson” was dismissed in August of 2017 (Dkt. 160). Therefore, the Court grants plaintiff’s
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motion. Counsel for defendant Roberts/Robertson is notified that they need no longer enter
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appearances or responsive pleadings on behalf of defendant Roberts/Robertson because he is no
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longer part of the case.
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CONCLUSION
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For the reasons stated above, the Court denies plaintiff’s motion for certificate of
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appealability (Dkt. 266), motion to strike defendant Furst’s motion for summary judgment (Dkt.
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275), motion for enlargement of time (Dkt. 276), motion to transmit record (Dkt. 278), motion
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for clarification (Dkt. 285), and motion to strike (Dkt. 290) insofar as it makes no request for this
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Court’s action. The Court grants plaintiff’s motion to strike (Dkt. 290) insofar as the Court
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interprets it as a motion to withdraw, and grants plaintiff’s motion to dismiss defendants (Dkt.
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293). Because the Court granted plaintiff’s motion to strike (Dkt. 20) in part, the Clerk is
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directed to strike plaintiff’s motion for clarification (Dkt. 270).
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Dated this 3rd day of April, 2018.
A
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J. Richard Creatura
United States Magistrate Judge
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ORDER ON MISCELLANEOUS MOTIONS - 6
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