United States District Court, W.D. Washington, Tacoma
ORDER ON SEVERAL MOTIONS
W. Christel United States Magistrate Judge
Patrick K. Gibson, proceeding pro se and in
forma pauperis, initiated this action 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.
The Court grants both Motions.
Motion for Extension (Dkt. 7) and Motion to Withdraw
filed their Motion to Dismiss on March 21, 2017. Dkt. 5. On
March 26, 2017, Plaintiff filed a Motion for Extension to
file a response to Defendants' Motion to Dismiss. Dkt. 7.
On April 3, 2017, Plaintiff filed a Motion to Withdraw his
Motion for Extension. Dkt. 9. The Court grants
Plaintiff's Motion to Withdraw (Dkt. 9). Plaintiff's
Motion for Extension (Dkt. 7) is withdrawn.
Motion to Amend Complaint (Dkt. 9)
to Rule 15(a)(1) of the Federal Rules of Civil Procedure, A
party may amend its pleading once as a matter of course
(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.
filed a Motion to Dismiss (Dkt. 5) - a responsive pleading --
on March 21, 2017. Dkt. 5. Plaintiff filed his Motion to
Amend on April 3, 2017, which was less than 21 days after the
Motion to Dismiss (Dkt. 5) was filed. Therefore, Plaintiff
has the right to amend his Complaint as a matter of course
pursuant to Rule 15(a)(1)(B).
their Response to Plaintiff's Motion to Amend, Defendants
argue Plaintiff would be given leave to amend under
Defendants' Motion to Dismiss and thus, Plaintiff's
Motion to Amend should be denied as moot. Dkt. 11 at 3-4.
Defendants also appear to argue because Plaintiff did not
file a proposed amended complaint within the 21-day deadline,
the Motion to Amend should be denied. Dkt. 11.
are correct, Plaintiff has not attached a proposed amended
complaint to his Motion to Amend. See Dkt. 9. In his
Motion to Amend, Plaintiff attempts to amend the named
Defendants and supplement his factual allegations.
See Dkt. 9 at 2-15. Plaintiff is required to have
filed a proposed Amended Complaint within the 21-day
deadline. Nevertheless, the Court finds because Plaintiff
filed his Motion to Amend prior to the 21-day deadline,
Plaintiff's Motion to Amend (Dkt. 9) is granted.
amend his Complaint, Plaintiff must file an amended complaint
on the form provided by the Court on or before June 5, 2017.
The amended complaint must be legibly rewritten or retyped in
its entirety, it should be an original and not a copy, it
should contain the same case number, and it may not
incorporate any part of the Complaint by reference. The
amended complaint will act as a complete substitute for the
Complaint, and not as a supplement. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
Court also advises Plaintiff, “[l]iability under
[§] 1983 arises only upon a showing of personal
participation by the defendant. A supervisor is only liable
for the constitutional violations of . . . subordinates if
the supervisor participated in or directed the violations, or
knew of the violations and failed to act to prevent them.
There is no respondeat superior liability under [§]
1983.” Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989) (citations omitted); see also Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1948 (2009) (“Because
vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”);
Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.
2009); Preschooler II v. Clark Cnty. Sch. Bd. of
Trs., 479 F.3d 1175, 1182 (9th Cir. 2007) (concluding
that allegations that school officials knew of alleged
violation and failed to take corrective action were
sufficient to state a claim); Harris v. Roderick,
126 F.3d 1189, 1204 (9th Cir. 1997).
within the amended complaint, Plaintiff must write a short,
plain statement telling the Court: (1) the constitutional
right Plaintiff believes was violated; (2) the name of the
person who violated the right; (3) exactly what the
individual did or failed to do; (4) how the action or
inaction of the individual is connected to the violation of
Plaintiff's constitutional rights; and (5) what specific