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 42 U.S.C. § 1983 civil
rights action to United States Magistrate Judge David W.
Christel pursuant to 28 U.S.C. § 636(b)(1)(A) and (B),
and local Magistrate Judge Rules MJR1, MJR3 and MJR4.
Ray Charles Harris alleges his Eighth and Fourteenth
Amendment rights were violated when Defendants failed to
provide him with adequate HIV treatment. Both Defendants
filed a Motion to Dismiss, claiming Plaintiff has not alleged
deliberate indifference by the Defendants, he has made a
conclusory Fourteenth Amendment claim, and he has not
exhausted his administrative remedies. The Court finds
Plaintiff has failed to state a claim upon which relief can
be granted because he alleges mere negligence on the part of
Defendants and does not provide enough facts to allege a
Fourteenth Amendment violation. Therefore, the Court grants
Defendants' Motions (Dkts. 26, 28), but gives Plaintiff
leave to file a Second Amended Complaint. Plaintiff must file
the Second Amended Complaint on or before November 20, 2017.
may grant a motion to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
“if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim that would
entitle him to relief.” Keniston v. Roberts,
717 F.2d 1295, 1300 (9th Cir. 1983) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1990)). Mere conclusory
statements in a complaint and “formulaic recitation[s]
of the elements of a cause of action” are not
sufficient. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); Chavez v. United States, 683 F.3d
1102, 1108-09 (9th Cir. 2012). “Dismissal can be based
on the lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal
theory.” Ballistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1990).
motion to dismiss, material allegations of the complaint are
taken as admitted and the complaint is to be liberally
construed in favor of the plaintiff. Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969), reh'g
denied, 396 U.S. 869 (1969); Sherman v. Yakahi,
549 F.2d 1287, 1290 (9th Cir. 1977). When a plaintiff is
proceeding pro se, his allegations must be viewed
under a less stringent standard than allegations of
plaintiffs represented by counsel. Haines v. Kerner,
404 U.S. 519 (1972), reh'g denied, 405 U.S. 948
(1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1
(9th Cir.1985) (en banc) (petitioner should be afforded the
“benefit of any doubt”).
the court can liberally construe a plaintiff's complaint,
it cannot supply an essential fact an inmate has failed to
plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.
1992) (quoting Ivey v. Board of Regents of University of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). The court
need not accept as true unreasonable inferences or conclusory
legal allegations cast in the form of factual allegations.
See Sprewell v. Golden State Warriors, 266 F.3d 979,
988 (9th Cir. 2001).
a court may not consider material beyond the complaint in
ruling on a Fed.R.Civ.P. 12(b)(6) motion. Lee v. City of
Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
Therefore, the Court examines Plaintiff's Amended
Complaint (Dkt. 22), Defendants' Motions to Dismiss
(Dkts. 26, 28), Plaintiff's Response (Dkt. 30), and
Defendants' Replies (Dkt. 31, 32). The Court notes
Plaintiff has also filed a Response to Defendants'
Replies (Dkt. 35). However, Local Civil Rule 7(b) does not
provide for such a filing. Therefore, the Court will not
a pre-trial detainee at the Pierce County Jail at all
relevant times, originally filed this action alleging
Defendants violated his First and Eighth Amendment rights.
Dkt. 4. Both Defendants file a motion to to dismiss (Dkt. 17,
19), and the Court granted their motions (Dkt. 22). However,
the Court gave Plaintiff leave to file an Amended Complaint.
subsequently filed an Amended Complaint, alleging
Defendants' violated his Eighth and Fourteenth Amendment
Rights when they failed to provide him with treatment related
to his HIV. Dkt. 23. Both Defendants again filed a motion to
dismiss, claiming Plaintiff has not alleged facts sufficient
to establish a claim for which relief can be granted. Dkt.
Eighth Amendment ...