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Smith v. Haynes

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

July 27, 2018

RONALD HAYNES, et al., Defendants.


          J. Richard Creatura United States Magistrate Judge.

         Plaintiff 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.

         The Court will make a determination on defendants' pending motion to dismiss (Dkt. 18) in a separate report and recommendation.


         Plaintiff 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.

         Plaintiff 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” (see Dkt.).


         I. Motion to Amend

         As a 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.” Id.

         Before 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.

         Here, 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.

         II. Motion to Prohibit Red-Herring Diversions

         Plaintiff 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.

         It 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 ...

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