Irby v. State of Washington et al

Filing 301

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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 TERRANCE JON IRBY, Plaintiff, 11 13 ORDER ON MISCELLANEOUS MOTIONS v. 12 CASE NO. 3:15-cv-05208-RBL-JRC STATE OF WASHINGTON, et al., Defendants. 14 15 16 Plaintiff Terrance Jon Irby, proceeding pro se and in forma pauperis, filed this civil rights 17 complaint under 42 U.S.C. § 1983. Pending before the Court are plaintiff’s eight miscellaneous 18 motions. 1 19 20 21 1 22 23 24 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 1 BACKGROUND 2 Plaintiff originally filed four separate actions, which were consolidated in June of 2017. 3 Dkt. 111. Plaintiff filed a consolidated amended complaint that same month. Dkt. 116. He filed a 4 second amended complaint in September of 2017 (Dkt. 165), as well as a subsequent correction 5 to the complaint (Dkt. 167). Because both the Court and defendants were confused by plaintiff’s 6 numerous filings, the Court granted plaintiff’s request to “correct his ‘corrected second amended 7 complaint’” (Dkt. 189 at 3-4), and directed the clerk to file his third amended complaint (Id.; 8 Dkts. 178, 190). The Court subsequently recommended that all his claims except his claims 9 pertaining to the American with Disability Act (“ADA”) and access to courts be dismissed, 10 warning plaintiff that failure to provide a plain statement of his remaining claims would result in 11 a recommendation for dismissal. Dkt. 244. The District Court adopted the Court’s 12 recommendation. Dkt. 245. 13 14 Plaintiff subsequently filed the current pending motions (Dkts. 266, 270, 275, 276, 278, 285, 290) along with numerous other filings. 15 16 DISCUSSION I. Order to Show Cause 17 On February 20, 2018, the Court ordered the parties to show cause why this case should 18 not be stayed pending the resolution of plaintiff’s appeal to the Ninth Circuit Court of Appeals. 19 Dkt. 282. State defendants filed a response on February 26, 2018, stating they do not oppose a 20 stay on the case. Dkt. 284. On February 27, 2018, the Ninth Circuit issued an order dismissing 21 plaintiff’s appeal for lack of jurisdiction. Dkt. 286. Defendant Furst then filed a response 22 objecting to the stay because plaintiff’s appeal had been terminated. Dkt. 291. Because the Ninth 23 24 ORDER ON MISCELLANEOUS MOTIONS - 2 1 Circuit appeal has been terminated, and with the benefit of defendants’ responses to the order to 2 show cause, the Court declines to stay this case at this time. 3 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 4 5 Court strike two of his motions, citing to Dkts. 270 and 277. Dkt. 290. The Court interprets this 6 motion as a motion to withdraw plaintiff’s previous motions. His motion at Dkt. 270 is a motion 7 for clarification, but the document located at Dkt. 277 is an order signed by Judge Leighton. 8 Because the Court has not yet ruled on plaintiff’s motion at Dkt. 270 (see LCR 7(l)), the Court 9 grants his motion to withdraw (Dkt. 285) as to the motion for clarification. The Clerk is directed 10 to strike plaintiff’s motion for clarification at Dkt. 270. However, because the other identified 11 “motion” is an order from Judge Leighton, the Court denies plaintiff’s motion as to the order at 12 Dkt. 277. 13 Plaintiff has also provided additional exhibits and additional argument with this motion. 14 See Dkt. 290. However, he makes no further request for the Court’s action. Because the 15 remainder of his motion does not appear to request additional action from the Court, the Court 16 denies it as moot. 17 18 III. Motion for Clarification It is unclear what plaintiff is requesting from the Court with his motion for clarification. 19 It appears that he is trying to explain which document is the operative complaint, pointing out 20 that there are several pending motions to which defendants have not responded, and ensuring that 21 defendant Furst’s answer at Dkt. 210 is “renoted” with his fourth amended complaint. Dkt. 285. 22 The remainder of the filing appears to be additional argument supplementing his complaint, 23 largely regarding claims the Court has already dismissed. See id. Insofar as plaintiff requests 24 ORDER ON MISCELLANEOUS MOTIONS - 3 1 defendants answer his motions, the time to answer has already passed and the Court declines to 2 renote the motions to allow for additional time. Insofar as plaintiff attempts to clarify his own 3 filings, the Court takes note of those clarifications. Otherwise, because plaintiff does not appear 4 to request additional action from the Court, the motion for clarification (Dkt. 285) is denied as 5 moot. 6 IV. Motion to Strike Defendant Furst’s Motion 7 Plaintiff also moves to strike defendant Furst’s motion for summary judgment. Dkt. 275. 8 Under the local rules, a motion to strike must be incorporated into a response rather than filed as 9 a stand alone motion. LCR 7(g). Therefore, the Court interprets plaintiff’s motion (Dkt. 275) as a 10 response to defendant Furst’s motion for summary judgment containing a motion to strike. 11 Because the Court has not yet made a determination on the merits of defendant Furst’s motion, 12 the Court denies plaintiff’s motion to strike (Dkt. 275), but will consider it as a response to 13 defendant Furst’s motion for summary judgment (Dkt. 261) when the Court makes a 14 determination on that motion. 15 16 V. Ninth Circuit Motions Plaintiff requests that the Court provide him a certificate for interlocutory appeal (Dkt. 17 266) and that the Court transmit the record from this case to the Ninth Circuit (Dkt. 278). After 18 filing his motion for the certificate (Dkt. 266), but before the Court made a ruling, petitioner filed 19 an interlocutory appeal anyway (Dkt. 273). However, the Ninth Circuit has returned a mandate 20 denying the interlocutory appeal. Dkt. 297. Therefore, because petitioner filed his appeal without 21 the certificate and because the Ninth Circuit has already disposed of his appeal, the Court denies 22 the motion for certificate (Dkt. 266) and motion to transmit the record (Dkt. 278) as moot. 23 24 ORDER ON MISCELLANEOUS MOTIONS - 4 1 2 VI. Motion for Enlargement of Time and Joinder Plaintiff requests the Court retroactively grant him additional time in order to file his 3 proposed fourth amended complaint and to join additional defendants in his action. Dkt. 276. 4 Defendants oppose this motion, noting that plaintiff has not sought leave from the Court to file 5 this particular amended complaint and that it “rehashes all of [plaintiff’s] original – and now 6 dismissed – claims.” Dkt. 280 at 3. Defendants also argue that the new defendants to be joined 7 are defense counsel and improper here. Id. at 4. The Court agrees. 8 9 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. 10 Fed. R. Civ. P. 15(a). Here, plaintiff has received neither. Further, he has already filed numerous 11 other complaints. See Dkts. 116, 165, 167, 178, 182, 190. Accepting this additional, overlength 12 pleading focusing on claims the Court has already dismissed would serve no purpose. 13 Further, defendants may only be joined when their absence would prevent “complete 14 relief among the existing parties” or when the person to be joined “claims an interest relating to 15 the subject of the action . . . .” Fed. R. Civ. P. 19(a)(1). As defendants properly note, neither 16 circumstance applies here. 17 18 19 20 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. 21 293. Plaintiff notes that defendant Robertson/Roberts has already been dismissed, but that 22 defendants’ counsel continues to enter orders of appearance for defendant Robertson. The Court 23 notes that defendant “Roberts” was dismissed in November of 2017 (Dkt. 225) and defendant 24 ORDER ON MISCELLANEOUS MOTIONS - 5 1 “Robertson” was dismissed in August of 2017 (Dkt. 160). Therefore, the Court grants plaintiff’s 2 motion. Counsel for defendant Roberts/Robertson is notified that they need no longer enter 3 appearances or responsive pleadings on behalf of defendant Roberts/Robertson because he is no 4 longer part of the case. 5 CONCLUSION 6 For the reasons stated above, the Court denies plaintiff’s motion for certificate of 7 appealability (Dkt. 266), motion to strike defendant Furst’s motion for summary judgment (Dkt. 8 275), motion for enlargement of time (Dkt. 276), motion to transmit record (Dkt. 278), motion 9 for clarification (Dkt. 285), and motion to strike (Dkt. 290) insofar as it makes no request for this 10 Court’s action. The Court grants plaintiff’s motion to strike (Dkt. 290) insofar as the Court 11 interprets it as a motion to withdraw, and grants plaintiff’s motion to dismiss defendants (Dkt. 12 293). Because the Court granted plaintiff’s motion to strike (Dkt. 20) in part, the Clerk is 13 directed to strike plaintiff’s motion for clarification (Dkt. 270). 14 Dated this 3rd day of April, 2018. A 15 16 J. Richard Creatura United States Magistrate Judge 17 18 19 20 21 22 23 24 ORDER ON MISCELLANEOUS MOTIONS - 6

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