United States District Court, W.D. Washington
ORDER ON MOTION TO SUBSTITUTE DEFENDANT
Richard Creatura United States Magistrate Judge.
District Court has referred this 42 U.S.C. § 1983 civil
rights action to United States Magistrate Judge J. Richard
Creatura. The Court's authority for the referral is 28
U.S.C. § 636(b)(1)(A) and (B), and local Magistrate
Judge Rules MJR3 and MJR4.
the Court is plaintiff's motion to substitute an
individual as a defendant in his complaint. Dkt. 36.
Defendants have not filed a response to plaintiff's
motion. See generally Dkt.
plaintiff has not alleged sufficient facts against this
individual whom he requests be added as a defendant to his
complaint, his motion (Dkt. 36) is denied.
requests that one named defendant -- his current therapist --
be substituted for a different named defendant -- his former
therapist. See Dkt. 36. However, as these
individuals are not public officers and do not “hold
office, ” a motion to substitute is not the proper
mechanism to satisfy plaintiff's request. See
Fed. R. Civ. P. 25(d) (Federal Rule of Civil Procedure 25(d)
gives plaintiff the ability to substitute a public officer if
the named defendant dies or otherwise ceases to hold office).
Thus, Federal Rule of Civil Procedure 25(d) is not applicable
in this circumstance. Instead, the Court will view
plaintiff's motion as a motion to amend the complaint.
Rule 15(a) of the Federal Rules of Civil Procedure,
(1) Amending as a Matter of Course
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.
(2) Other Amendments
In all other cases, a party may amend its pleading only with
the opposing party's written consent or the court's
leave. The court should freely give leave when justice so
Fed. R. Civ. P. 15(a).
has not filed his motion to substitute (or his previously
filed motion to dismiss a defendant) within 21 days of
effectuation of service of the complaint. The Order directing
service was entered on December 6, 2016. Dkt. 6. The most
recent and final waiver of service of summons was mailed on
February 13, 2017. See Dkt. 29, see
generally, Dkt. Plaintiff filed his motion to substitute on
March 29, 2017. Similarly, defendants filed and served on the
same day a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) for failure to state a claim on February 6, 2017,
see Dkt. 26, and plaintiff's March motions were
not filed within twenty-one days of service of this motion to
dismiss. See Dkt. 36. Therefore, plaintiff cannot
amend his complaint as a matter of course. See Fed.
R. Civ. P. 15(a)(1).
defendants have not consented in writing to plaintiff's
motion to substitute, which seeks to amend the complaint,
plaintiff only can amend his complaint with leave of the
Court. See Fed. R. Civ. P. 15(a)(2).
Court should freely give leave “when justice so
requires.” See Id. However, plaintiff's
motion to substitute does not include any facts or
allegations related to the defendant he seeks to substitute,
other than that she is his therapist. See Dkt. 36,
p. 1. Plaintiff does not explain how simply being the
therapist of an individual gives rise to ...