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)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 BRIAN TERWILLEGER, 11 12 13 14 Plaintiff, CASE NO. 3:17-cv-05360-RJB-DWC ORDER DENYING MISCELLANEOUS MOTION v. STATE OF WASHINGTON, et al., Defendant. 15 16 The District Court has referred this 42 U.S.C. § 1983 action to United State Magistrate 17 Judge David W. Christel. Currently pending in this action is Plaintiff Brian Terwilleger’s 18 Miscellaneous (“Motion”). Dkt. 60. 19 Plaintiff first requests the Court preemptively decline to grant summary judgment and 20 allow his case to move to trial. However, neither party has yet moved the Court for summary 21 judgment. Therefore, Plaintiff’s request is premature and the Court declines to grant it. 22 Second, Plaintiff requests that, if the Court identifies deficiencies in Plaintiff’s 23 Complaint, the Court allow him leave to amend under Rule 61. However, as Defendants 24 ORDER DENYING MISCELLANEOUS MOTION -1 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. 9 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 11 moot. 12 For the reasons stated above, the Court denies Plaintiff’s Motion (Dkt. 60) without 13 prejudice. 14 Dated this 26th day of March, 2018. A 15 16 David W. Christel United States Magistrate Judge 17 18 19 20 21 22 23 24 ORDER DENYING MISCELLANEOUS MOTION -2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?