Lazar v. Bourbon et al

Filing 50

ORDER re 49 REPORT AND RECOMMENDATIONS re 26 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Pierce County Sheriff's Department Booking Dept, 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Don Bourbon, Shelby Wi; the Court orders Lazar to amend his complaint to address deficiencies within 21 days of this order, otherwise this matter will be dismissed; signed by Judge Ronald B. Leighton. (DN) Modified on 1/4/2019 (DN). (cc to pltf)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C18-5175 RBL

AUSTIN LAZAR,
Plaintiff,
v.
DON BOURBON,

ORDER ADOPTING AND
MODIFYING REPORT AND
RECOMMENDATION

Defendant.

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THIS MATTER is before the Court on Magistrate Judge Christel’s Report and

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Recommendation [Dkt. #49], recommending that the Court Grant Defendants’ Motions to

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Dismiss under Rule 12(b)(6). [Dkt. #s 26 and 28].

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The Report and Recommendation correctly determined that pro se, in forma pauperis

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Plaintiff Lazar had failed to state a claim against any defendant. However, it recommended

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dismissal without prejudice, rather than providing Lazar amendment. On a 12(b)(6) motion, “a

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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not possibly be cured by the allegation of other

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facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990).

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However, where the facts are not in dispute, and the sole issue is whether there is liability as a

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ORDER ADOPTING AND MODIFYING REPORT
AND RECOMMENDATION - 1

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matter of substantive law, the court may deny leave to amend. Albrecht v. Lund, 845 F.2d 193,

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195–96 (9th Cir. 1988).

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It appears to be at least possible that the allegations in Lazar’s complaint could be
amended to cure the deficiencies identified in the Report and Recommendation.

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Therefore, instead of dismissal, the court will ORDER Lazar to amend his complaint

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to address these pleading deficiencies within 21 days of this Order. If he does not, the case will

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be dismissed.

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The Clerk shall send copies of this Order to Lazar’s last known address, to the defendants
through counsel, and to Magistrate Judge Christel, and shall re-note this matter for January 28.

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IT IS SO ORDERED.

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Dated this 4th day of January, 2019.

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Ronald B. Leighton
United States District Judge

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ORDER ADOPTING AND MODIFYING REPORT
AND RECOMMENDATION - 2