Gibson v. Washington State Department of Corrections et al

Filing 12

ORDER that the Court grants Plaintiff's 9 Motion to Withdraw, and Plaintiff's 7 Motion for Extension of Time is withdrawn. Plaintiff's 9 Motion to Amend is granted. Plaintiff must file an amended complaint on the form provided by the Court on or before 6/5/17. Signed by Magistrate Judge David W. Christel. (Attachments: # 1 Amended Complaint (blank form))**4 PAGE(S), PRINT ALL**(Patrick Gibson, Prisoner ID: 992321)(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 Patrick K Gibson, 11 Plaintiff, 13 ORDER ON SEVERAL MOTIONS v. 12 CASE NO. C17-5187 RBL-DWC Washington State Department of Corrections et al., 14 Defendants. 15 16 Plaintiff Patrick K. Gibson, proceeding pro se and in forma pauperis, initiated this action 17 18 19 20 pursuant to 42 U.S.C. § 1983. Presently pending before the Court are Plaintiff’s: (1) Motion for Extension of Time to file Reply to Defendants’ Motion to Dismiss (“Motion for Extension,” Dkt. 7) and (2) Motion to Amend Complaint (“Motion to Amend”) and Motion to Withdraw Motion for Extension (“Motion to Withdraw”). Dkt. 9.1 The Court grants both Motions. 21 22 23 Also pending is Defendants’ Motion to Dismiss (Dkt. 5) which will be addressed in a 24 separately filed report and recommendation. 1 ORDER ON SEVERAL MOTIONS - 1 1 2 1. Motion for Extension (Dkt. 7) and Motion to Withdraw (Dkt. 9) 3 Defendants filed their Motion to Dismiss on March 21, 2017. Dkt. 5. On March 26, 2017, 4 Plaintiff filed a Motion for Extension to file a response to Defendants’ Motion to Dismiss. Dkt. 7. 5 On April 3, 2017, Plaintiff filed a Motion to Withdraw his Motion for Extension. Dkt. 9. The 6 Court grants Plaintiff’s Motion to Withdraw (Dkt. 9). Plaintiff’s Motion for Extension (Dkt. 7) is 7 withdrawn. 8 9 10 11 12 13 2. Motion to Amend Complaint (Dkt. 9) Pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure, A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Defendants filed a Motion to Dismiss (Dkt. 5) – a responsive pleading -- on March 21, 14 2017. Dkt. 5. Plaintiff filed his Motion to Amend on April 3, 2017, which was less than 21 days 15 after the Motion to Dismiss (Dkt. 5) was filed. Therefore, Plaintiff has the right to amend his 16 Complaint as a matter of course pursuant to Rule 15(a)(1)(B). 17 In their Response to Plaintiff’s Motion to Amend, Defendants argue Plaintiff would be 18 given leave to amend under Defendants’ Motion to Dismiss and thus, Plaintiff’s Motion to 19 Amend should be denied as moot. Dkt. 11 at 3-4. Defendants also appear to argue because 20 Plaintiff did not file a proposed amended complaint within the 21-day deadline, the Motion to 21 Amend should be denied. Dkt. 11. 22 Defendants are correct, Plaintiff has not attached a proposed amended complaint to his 23 Motion to Amend. See Dkt. 9. In his Motion to Amend, Plaintiff attempts to amend the named 24 ORDER ON SEVERAL MOTIONS - 2 1 Defendants and supplement his factual allegations. See Dkt. 9 at 2-15. Plaintiff is required to have 2 filed a proposed Amended Complaint within the 21-day deadline. Nevertheless, the Court finds 3 because Plaintiff filed his Motion to Amend prior to the 21-day deadline, Plaintiff’s Motion to 4 Amend (Dkt. 9) is granted. 5 To amend his Complaint, Plaintiff must file an amended complaint on the form provided 6 by the Court on or before June 5, 2017. The amended complaint must be legibly rewritten or 7 retyped in its entirety, it should be an original and not a copy, it should contain the same case 8 number, and it may not incorporate any part of the Complaint by reference. The amended 9 complaint will act as a complete substitute for the Complaint, and not as a supplement. See Ferdik 10 v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 11 The Court also advises Plaintiff, “[l]iability under [§] 1983 arises only upon a showing of 12 personal participation by the defendant. A supervisor is only liable for the constitutional 13 violations of . . . subordinates if the supervisor participated in or directed the violations, or knew 14 of the violations and failed to act to prevent them. There is no respondeat superior liability under 15 [§] 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted); see also 16 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (“Because vicarious liability is inapplicable to 17 Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through 18 the official’s own individual actions, has violated the Constitution.”); Corales v. Bennett, 567 19 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 20 1182 (9th Cir. 2007) (concluding that allegations that school officials knew of alleged violation 21 and failed to take corrective action were sufficient to state a claim); Harris v. Roderick, 126 F.3d 22 1189, 1204 (9th Cir. 1997). 23 24 ORDER ON SEVERAL MOTIONS - 3 1 Thus, within the amended complaint, Plaintiff must write a short, plain statement telling 2 the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the person 3 who violated the right; (3) exactly what the individual did or failed to do; (4) how the action or 4 inaction of the individual is connected to the violation of Plaintiff’s constitutional rights; and (5) 5 what specific injury Plaintiff suffered because of the individual’s conduct. See Rizzo v. Goode, 6 423 U.S. 362, 371–72, 377 (1976). 7 If Plaintiff fails to file an amended complaint by June 5, 2017, the Court will proceed on 8 Plaintiff’s Original Complaint. The Clerk is directed to send Plaintiff the appropriate forms for 9 filing a 42 U.S.C. § 1983 civil rights complaint. 10 Dated this 5th day of May, 2017. 12 A 13 David W. Christel United States Magistrate Judge 11 14 15 16 17 18 19 20 21 22 23 24 ORDER ON SEVERAL MOTIONS - 4

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