Terwilleger v. State of Washington et al

Filing 65

ORDER denying the 60 Motion to decline to grant summary judgment; to allow leave to amend under Rule 61; and to direct Defendants to respond to Plaintiff's complaint, signed by Magistrate Judge David W. Christel.(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRIAN TERWILLEGER,

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Plaintiff,

CASE NO. 3:17-cv-05360-RJB-DWC
ORDER DENYING
MISCELLANEOUS MOTION

v.
STATE OF WASHINGTON, et al.,
Defendant.

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The District Court has referred this 42 U.S.C. § 1983 action to United State Magistrate
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Judge David W. Christel. Currently pending in this action is Plaintiff Brian Terwilleger’s
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Miscellaneous (“Motion”). Dkt. 60.
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Plaintiff first requests the Court preemptively decline to grant summary judgment and
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allow his case to move to trial. However, neither party has yet moved the Court for summary
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judgment. Therefore, Plaintiff’s request is premature and the Court declines to grant it.
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Second, Plaintiff requests that, if the Court identifies deficiencies in Plaintiff’s
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Complaint, the Court allow him leave to amend under Rule 61. However, as Defendants
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ORDER DENYING MISCELLANEOUS MOTION
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1 correctly note, Federal Rule of Civil Procedure 61 governs “harmless error” as it relates to
2 setting aside a court order or other judgment. It does not apply to leave to amend a Complaint.
3 Further, the Ninth Circuit has established that pro se litigants bringing civil rights actions must
4 be given opportunity to amend their complaint to overcome deficiencies unless it is clear such
5 deficiencies cannot be overcome by amendment. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
6 2000). However, the Court has not yet ruled on any deficiencies in Plaintiff’s current Complaint,
7 and thus this request is also premature. The Court therefore denies Plaintiff’s prospective request
8 to amend here.
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Finally, Plaintiff requests the Court direct Defendants to respond to Plaintiff’s Complaint.

10 However, Defendants have already filed their Answer. Dkt. 61. Thus. Plaintiff’s final request is
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For the reasons stated above, the Court denies Plaintiff’s Motion (Dkt. 60) without

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Dated this 26th day of March, 2018.

A

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David W. Christel
United States Magistrate Judge

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ORDER DENYING MISCELLANEOUS MOTION
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