United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' MOTIONS TO DISMISS
W. Christel United States Magistrate Judge
District Court has referred this action, filed pursuant to 42
U.S.C. § 1983, to United States Magistrate Judge David
W. Christel. Presently pending before the Court are Defendant
Balderama's Motion to Dismiss Pursuant to FRCP 12(b)(6)
and Defendant Rose Rains, LPN'sMotion to Dismiss Pursuant to
FRCP 12(b)(6). Dkt. 10, 14.
Court finds Plaintiff has failed to state a claim upon which
relief can be granted in the Complaint. Therefore, the Court
grants the Motions (Dkt. 10, 14), but gives Plaintiff leave
to file an amended complaint. Plaintiff must file an amended
complaint on or before July 17, 2017.
Ray Charles Harris, a pre-trial detainee at the Pierce County
Jail (“the Jail”) at all relevant times, alleges
Defendants Balderama and Rains violated Plaintiff's
constitutional rights. Dkt. 4. Specifically, Plaintiff
alleges Defendants Balderama and Rains denied Plaintiff
medical care for his AIDS treatment and Defendant Balderama
retaliated against Plaintiff because Plaintiff filed a
grievance and lawsuit. Id.
Balderama filed his Motion to Dismiss on April 27, 2017. Dkt.
10. Plaintiff filed a Response and Defendant Balderama filed
a Reply. Dkt. 17, 19. Defendant Rains filed her Motion to
Dismiss on May 1, 2017. Dkt. 14. Plaintiff filed a Response
and Defendant Rains filed a Reply. Dkt. 18, 20. Plaintiff
filed a second Response to both Motions to Dismiss on May 31,
2017, after both Motions were ready for the Court's
consideration. Dkt. 21. As Plaintiff is proceeding pro
se and Defendants did not object to the second Response,
the Court also considered Plaintiff's second Response in
ruling on the Motions to Dismiss.
Standard of Review
motion to dismiss can be granted only if Plaintiff's
Complaint, with all factual allegations accepted as true,
fails to “raise a right to relief above the speculative
level”. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 545 (2007).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.” A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 556, 570).
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). “Specific facts
are not necessary; the statement need only give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests.” Erickson v. Pardus, et al.,
551 U.S. 89, 93 (2007) (internal citations omitted). However,
the pleading must be more than an “unadorned,
Iqbal, 556 U.S. at 678.
the Court must accept all the allegations contained in a
complaint as true, the Court does not have to accept a
“legal conclusion couched as a factual
allegation.” Id. “Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.;
Jones v. Community Development Agency, 733 F.2d 646,
649 (9th Cir. 1984) (vague and mere conclusory allegations
unsupported by facts are not sufficient to state section 1983
claims); Pena v. Gardner, 976 F.2d 469, 471 (9th
Cir. 1992). While the Court is to construe a complaint
liberally, such construction “may not supply essential
elements of the claim that were not initially pled.”
Pena, 976 F.2d at 471.
First Amendment Retaliation
alleges Defendant Balderama retaliated against him because he
filed a grievance and a lawsuit. Dkt. 4. To prevail on a
retaliation claim, a plaintiff must allege and prove the
defendants retaliated against him for exercising a
constitutional right and the retaliatory action did not
advance legitimate penological goals or was not narrowly
tailored to achieve such goals. Hines v. Gomez, 108
F.3d 265, 267 (9th Cir. 1997). A prisoner suing a prison
official under § 1983 for retaliation for engaging in
protected speech must allege “the type of activity he
engaged in was protected under the ...