United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's motion to
proceed in forma pauperis (“IFP”) (Dkt.
No. 1), United States Magistrate Judge Mary Alice
Theiler's Report and Recommendation
(“R&R”) (Dkt. No. 3), and Plaintiff's
objections (Dkt. No. 6).
alleges claims against the State of Washington, the State of
Arizona, and the Colchise County Superior Court under 42
U.S.C. section 1983. (Dkt. No. 1-1.) Judge Theiler recommends
Plaintiff's complaint be dismissed pursuant to 28 U.S.C.
1915A(b) for failure to state a claim upon which relief may
be granted. (Dkt. No. 3 at 3.) Her Report and Recommendation
finds that Plaintiff's claims against Washington and
Arizona are not cognizable because states are not subject to
suit under section 1983. (Id. at 2-3.) Plaintiff
objects to this finding, arguing that Arizona and Washington
have waived sovereign immunity through legislation. (Dkt. No.
6 at 1.) The parties agree that Plaintiff's claim against
the Cochise County Superior Court is barred by Heck v.
Humphrey, 512 U.S. 477 (1994). (Dkt. Nos. 3 at 3, 6 at
Court reviews the record before it on objections to an
R&R de novo. 28 U.S.C. § 636(b)(1). The
Court need not address whether Washington and Arizona have
waived immunity to the class of claims Plaintiff asserts,
because his claims fail on other grounds. Plaintiff's
claims against the State of Washington are time-barred. As
Judge Theiler noted, federal courts addressing section 1983
claims borrow state statutes of limitations for personal
injury actions. (Dkt. No. 3 at n. 2); Wallace v.
Kato, 549 U.S. 384, 387 (2007). Washington's
relevant statute of limitations is three years. Bagley v.
CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir.
1991). The alleged facts underlying Plaintiff's claim
against the State of Washington occurred on or about November
29, 2014, over three years before this action was filed on
April 27, 2018. (See Dkt. No. 1-1 at 3.) Plaintiff
presents no facts that would support equitable tolling of
this limitations period. See Hawkins v. Douglas
County, No. C15-0283-TOR, slip op. at 9 (E.D. Wash.
January 28, 2016). Thus his claims against the State of
Washington are untimely. Nor are Plaintiff's claims
against the State of Arizona properly brought in this Court.
Venue is improper because the alleged harm occurred entirely
in the District of Arizona. See 20 U.S.C. §
1391(b); (Dkt. No. 1-1 at 3). Therefore, the Court ADOPTS
Judge Theiler's recommendation to dismiss claims against
Leave to Amend
response to Judge Theiler's Report and Recommendation,
Plaintiff moves for leave to amend his complaint. (Dkt. No. 6
at 1.) He seeks to substitute the Cochise County
Sherriff's Office in place of the Cochise County Superior
Court and to add claims against two individual residents of
the State of Washington (“the Washington
Defendants”), for “depriving [him] of his rights
while he lived in the state.” (Id.)
Court must grant pro se litigants an opportunity to
amend prior to dismissal unless it is clear that no amendment
can cure the defect. Akhtar v. Mesa, 698 F.3d 1202,
1212 (9th Cir. 2012). Substitution of Cochise County
Sheriff's Office will not cure the defects in
Plaintiff's claims against the Cochise County Superior
Court. The proposed new claims arise out of conduct that
occurred solely in Arizona, making this Court an improper
venue. (See Dkt. Nos. 3 at n. 2, 6 at 1.) If
Plaintiff's claims against the Washington Defendants turn
on the same facts as his claim against the State of
Washington, they may also be time-barred. However,
Plaintiff's complaint and motion to amend do not clearly
indicate the timeline of the harm he alleges. Thus, the Court
will liberally construe Plaintiff's filings and grant
leave to amend claims related to alleged harm Plaintiff
suffered while in Washington. See Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010).
foregoing reasons, the Report and Recommendation is ADOPTED
in part. The Court ORDERS as follows:
1. Plaintiff's claims against the State of Washington,
the State of Arizona, and the Cochise County Superior Court