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Wall v. Arend

United States District Court, W.D. Washington

August 17, 2017



          BENJAMIN H. SETTLE United States District Judge

         This 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.


         Plaintiff 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. Dkt. 21.


         A. Motion to Extend Deadline

         Plaintiff 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.

         While 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.

         Normally, 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.

         B. Motion to Dismiss

         1. Standard

         Motions 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).

         2. Claims

         Plaintiff 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 ...

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