United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' MOTIONS TO DISMISS
Theresa L. Fricke United States Magistrate Judge
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.
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). The Court will give Plaintiff leave to
file an amended complaint. Plaintiff must file an amended
complaint on or before May 28, 2018.
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
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.
Standard of Review
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).
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.
Failure to Respond to Motions
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 ...