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Odom v. Administrator Sloughower

United States District Court, W.D. Washington, Tacoma

March 27, 2018

JAMAR ODOM, Plaintiff,
v.
ADMINISTRATOR SLOUTHOWER, et al., Defendants.

          ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          Theresa L. Fricke United States Magistrate Judge

         The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge Theresa L. Fricke. Presently pending before the Court are defendants Balderrama, Blowers, and Smith's Motion to Dismiss Pursuant to FRCP 12(b)(6), Dkt. 21, and defendants Park, Cammer, Bual, Carrillo, and Yagi's Motion to Dismiss Pursuant to FRCP 12(b)(6), Dkt. 26. Plaintiff has not responded to either motion. Both sets of defendants filed a reply. Dkt. 23, 27.

         The Court finds Plaintiff has failed to state a claim upon which relief can be granted in the complaint as to any of the moving defendants. Therefore, the Court grants the motions (Dkt. 21, 26).[1] The Court will give Plaintiff leave to file an amended complaint. Plaintiff must file an amended complaint on or before May 28, 2018.

         I. Background

         Plaintiff Jamar Odom, a pre-trial detainee at the Pierce County Jail (“the Jail”) at all relevant times, alleges that several named defendants violated Plaintiff's constitutional rights. Dkt. 7. Plaintiff alleges defendants violated his Eighth Amendment rights in denying him adequate medical care-specifically physical therapy and orthopedic and neurological care- following surgery for a gunshot wound. Id. He also alleges that defendants denied him due process and equal protection in violation of the Fourteenth Amendment. Id.

         Defendants Balderrama, Blowers, and Smith filed their motion to dismiss on January 19, 2018. Dkt. 21. Plaintiff did not file a response; the defendants then filed a reply. Dkt. 23. Defendants Park, Cammer, Bual, Carrillo, and Yagi filed their motion to dismiss on February 21, 2018. Dkt. 26. Plaintiff has not filed a Response to that motion, either. Those defendants also filed a reply. Dkt. 27.

         II. Standard of Review

         A motion to dismiss can be granted only if the 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).

         A 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, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

         While 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.

         III. Failure to Respond to Motions

         This Court's local rules provide that “[e]xcept 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.” LCR 7(b)(2). Before the Court grants a motion to dismiss on these grounds, it must “weigh several factors: ‘(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the ...


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