United States District Court, W.D. Washington
ORDER GRANTING DEFENDANTS' MOTION TO
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendants' motion to
dismiss. Dkt. 20. Also before the Court are Plaintiff's
motion for a preliminary injunction and his request to extend
the deadline for his response to Defendants' motion to
dismiss. Dkts. 2, 22. The Court has considered the pleadings
filed in support of and in opposition to the motions and the
remainder of the file and hereby grants Defendants'
motion to dismiss for the reasons stated herein.
filed his complaint and motion for preliminary injunction on
June 13, 2017. Dkts. 1, 2. On July 5, 2017, Defendants moved
for dismissal. Dkt. 20. On July 25, 2017, Plaintiff moved to
extend the deadline for his response. Dkt. 22. On July 28,
2017, Defendants filed a reply to their motion to dismiss.
Motion to Extend Deadline
has requested that the Court extend the deadline for the
filing of his response by over a month until September 8,
2017. Dkt. 22. “A motion for relief from a deadline
should, whenever possible, be filed sufficiently in advance
of the deadline to allow the court to rule on the motion
prior to the deadline.” W.D. Wash. Local Rules. LCR
7(j). Plaintiff did not request an extension to his deadline
until a day after his response was due.
Plaintiff's failure to comply with the Court's local
rules in timely requesting a deadline is reason enough to
deny the request, the Court instead bases its decision on the
fact that Plaintiff has failed to articulate a legitimate
basis for an extension. Plaintiff's only stated reason
for requesting an extension of his response deadline is
“because Plaintiff doesn't have in its position
[sic] copies of the hearing transcript . . . so as to
incorporate into opposition to motion to dismiss.” Dkt.
22 at 2. Plaintiff does not articulate what hearing
transcript he is referring to or how such a transcript would
help him oppose a motion to dismiss. Indeed, reviewing the
grounds for dismissal in Defendants' motion, it is clear
that the motion does not challenge the veracity of any facts
alleged in the complaint, but rather argues about the legal
deficiencies of those allegations. Whether Plaintiff can
support his allegations with a record such as a hearing
transcript is irrelevant to arguments in Defendants'
motion to dismiss, as developing a factual record will not
cure the argued legal deficiencies of Plaintiff's claims.
Moreover, to the extent that Plaintiff might attempt to
develop the record in order to cure factually deficient
claims in the complaint, the proper method for curing such
claims is to file an amended pleading containing sufficient
factual allegations. Accordingly, Plaintiff's motion to
extend the deadline for his response is denied.
Plaintiff's failure to respond to a motion to dismiss
would be construed as an admission that Defendants'
motion has merit. W.D. Wash. Local Rules LCR 7(b)(2)
(“Except for motions for summary judgment, if a party
fails to file papers in opposition to a motion, such failure
may be considered by the court as an admission that the
motion has merit.”). However, in this instance, while
Plaintiff has failed to file a substantive response,
Plaintiff has nonetheless indicated his general opposition to
the motion. Therefore, the Court will not regard
Plaintiff's lack of a timely response as an admission
that Defendants' motion to dismiss should be granted.
Instead, the Court will address the merits of Defendants'
motion in light of the allegations made in the complaint.
Motion to Dismiss
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Material allegations are taken as admitted and the complaint
is construed in the plaintiff's favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive
a motion to dismiss, the complaint does not require detailed
factual allegations but must provide the grounds for
entitlement to relief and not merely a “formulaic
recitation” of the elements of a cause of action.
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965
(2007). Plaintiffs must allege “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 1974. When deciding a motion to dismiss, the
Court's consideration is generally limited to the
pleadings. Fed.R.Civ.P. 12(d).
attempts to bring a civil claim against Defendants under
criminal statute 18 U.S.C. § 1506 based on filings made
in his ongoing criminal proceedings in state court. Dkt. 1 at
3. The Court previously dismissed a petition to proceed in
forma pauperis filed by Plaintiff on June 7, 2017. Wall,
v. Lindquist, , C17-5439 BHS, Dkt. 2 (W.D. Wash. June 8,
2017). In doing so, the Court explained that Plaintiff had
failed to state a valid claim because the criminal statutes
he had cited did not provide a private cause of action or a
basis for civil lawsuit based on the destruction of
documents. Id. at 3 (citing Winslow v.
Romer, 759 F.Supp. 670, 674 (D. Colo. 1991)
(“Nothing in the language or history of 18 U.S.C.
§§ 2071 or 31096 indicates that either statute was
intended to create a private right of action.”);
Dugar v. Coughlin, 613 F.Supp. 849, 852 n. 1
(S.D.N.Y. 1985) (no private right of action under §
2071)). The same can be said of Plaintiff's claims that
Defendants violated 18 U.S.C. § 1506. Shahin v.
Darling, 606 F.Supp.2d 525, 538 (D. Del. 2009),
aff'd, 350 Fed.Appx. 605 (3d Cir. 2009)
(“[18 U.S.C. § 1506] was not intended to be used
in civil litigation ...