United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION TO AMEND
Richard Creatura United States Magistrate Judge.
John Garrett Smith, proceeding pro se and in
forma pauperis, filed this civil rights complaint under
42 U.S.C. § 1983. Plaintiff asks for leave to amend his
complaint to include an allegation of mail fraud, and
requests that the Court “not take the banal bait of
defendants' red-herring diversions.” Dkts. 15, 17.
However, plaintiff has not yet exhausted his administrative
remedies as to his mail fraud allegations, and so may not yet
include them in his complaint. The Court is also unsure what
remedy plaintiff seeks with his motion to “prohibit
red-herring diversions, ” but the Court already has a
duty to examine the submissions of both parties and give them
the factual and legal weight they are due. Therefore, both of
plaintiff's motions are denied.
Court will make a determination on defendants' pending
motion to dismiss (Dkt. 18) in a separate report and
initially filed his complaint in February of 2018. Dkt. 1.
Pursuant to court order, plaintiff filed an amended complaint
in March of 2018. Dkt. 6. The Court entered a report and
recommendation recommending that some of plaintiff's
claims be dismissed. Dkt. 7. After the District Court adopted
that report and recommendation, the court directed service of
the amended complaint. Dkt. 9.
has now filed a motion to amend his amended complaint (Dkt.
15), seeking to include a claim of mail fraud. He has also
filed a “motion to prohibit red-herring
diversions” (Dkt. 17), apparently asking the Court to
ignore some of defendants' arguments because they
mischaracterize plaintiff's claims and allegedly attempt
to distract the Court from ongoing constitutional violations.
Defendants have responded to plaintiff' motion to amend
(Dkt. 16), but did not respond to plaintiff's
“motion to prohibit red-herring diversions”
Motion to Amend
matter of course, a party may amend its pleading once within
21 days of serving it or, if it is a pleading that requires a
response, within 21 days after service of the response. Fed.
R. Civ. Proc. 15(a)(1). In all other cases, “a party
may amend its pleading only with . . . the court's
leave.” Id. (a)(2). “The court should
freely give leave when justice so requires.”
a prisoner may bring a civil rights action under 42 U.S.C.
§ 1983, he must first exhaust all available
administrative remedies. The Prison Litigation Reform Act of
1995 (“PLRA”), 42 U.S.C. § 1997e(a) provides
that: “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any
other federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” Exhaustion in cases covered by §
1997e(a) is mandatory. Booth v. Churner, 532 U.S.
731, 739 (2001). All “available” remedies must be
exhausted. Id. Even when the prisoner seeks relief
not available in grievance proceedings, notably money
damages, exhaustion is still a prerequisite to suit.
Id., 532 U.S. at 741.
plaintiff requests that he be allowed to amend his complaint
to include an additional allegation of mail fraud that he has
not yet fully exhausted. Dkt. 15. Defendants argue that he
filed his motion so soon after the alleged unlawful conduct
that he could not have fully exhausted due to the amount of
time it takes to exhaust administrative remedies. Dkt. 16.
Indeed, plaintiff has filed a second motion and included a
copy of his level 1 grievance, but does not provide or even
reference any further progress in the grievance process. As
noted above, the exhaustion of administrative remedies must
be completed before plaintiff may file a lawsuit
seeking relief. Because it appears plaintiff is still in the
process of exhausting his administrative remedies, he may not
yet bring suit as to his mail fraud claims. Thus, amending
his complaint to include that claim is inappropriate at this
time. Therefore, plaintiff's motion to amend is denied.
Motion to Prohibit Red-Herring Diversions
has also filed a “Motion to Prohibit Red-Herring
Diversions.” Dkt. 17. It appears that plaintiff is
alleging that defendants have filed arguments attempting to
distract the Court from the central issues in the case.
Id. Plaintiff alleges that defendants are
discriminating against him because of his autism, and that
defendants arguments on the merits of this lawsuit are part
of that discrimination. Id. He further argues that
defendants misconstrue his arguments in their response, that
they minimize allegedly heinous federal crimes, and that he
has supported his legal claims not only with allegations in
the present suit, but also in prior legal proceedings before
state courts. See Dkt. 17, pp. 3-4. He has also
attached copies of his level 1 grievance and defendants'
response to that grievance. Id., p. 6.
would be unethical for defendants' counsel to mislead the
Court or to advance frivolous arguments. See,
e.g., McCoy v. Court of Appeals of Wisconsin,
Dist. 1, 486 U.S. 429, 436-37 (1988). The Court does not
find that defendants' counsel has done so here. Insofar
as plaintiff requests that the Court wholly disregard
defendants' submissions, the Court will not do so ...