United States District Court, W.D. Washington, Tacoma
ORDER ON MISCELLANEOUS MOTIONS AND TO CORRECT AMENDED
Richard Creatura, United States Magistrate Judge.
District Court has referred this matter to U.S. Magistrate
Judge J. Richard Creatura pursuant to 28 U.S.C. §§
636(b)(1)(A) and 636(b)(1)(B) and Local Rules MJR 1, MJR 3,
and MJR 4. See Dkt. 2. This matter is before the
Court on plaintiff's motions “to drop for
misjoinder, ” to amend his complaint, and for sanctions
against defense counsel. See Dkts. 24, 25, 27. For
the reasons discussed below, plaintiff's motion to amend
his complaint is granted, his motions for sanctions and to
correct misjoinder are denied, and he is ordered to update
his amended complaint's signature page on or before
October 8, 2019.
April 2019, plaintiff, who proceeds pro se and
in forma pauperis and who is incarcerated in Clallam
Bay Corrections Center, brought suit against 12 defendants
arising out of alleged incidents in December 2018 and January
2019 which DOC employees wrongfully rejected plaintiff's
incoming and outgoing mail. See Dkt. 7, at 3-7. He
claims violation of his federal constitutional rights and
additionally brings various tort claims. See Dkt. 7,
at 4. For one defendant, plaintiff gave only the title
“WDOC Headquarters Mail Review Employee”
(“Employee”) by which to identify the defendant.
See Dkt. 7, at 2.
2019, all defendants except “Employee” had
returned service waivers, and the undersigned ordered
plaintiff to provide sufficient identifying information to
serve defendant “Employee.” See Dkt. 21.
In response, plaintiff filed the pending “motion to
drop for misjoinder.” See Dkt. 24.
the remaining defendants filed an answer to plaintiff's
complaint. See Dkt. 22. Among other things, they
“admit[ted] that [plaintiff] exhausted the mail
rejection appeal process, but affirmatively aver[red] that he
failed to submit a notice of claim to the State's Risk
Management Office as required by statute.” See
Dkt. 22, at 2. Thus they pleaded as an affirmative defense
that plaintiff “failed to submit a proper notice of
claim and he failed to wait the statutorily required sixty
days before filing suit, so th[e] Court lacks jurisdiction to
hear [plaintiff's] tort claims.” Dkt. 22, at 5.
response, plaintiff filed a motion for sanctions against
defense counsel, alleging that he did, in fact, file a notice
of claim on April 17, 2019, which was denied on April 22,
2019, and that defense counsel either knew or should have
known that the statements otherwise in defendants' Answer
were false. See Dkt. 25, at 5.
requests imposition of sanctions on defense counsel on the
basis that the Answer included allegations that he had not
filed a notice of claim and that these allegations were
baseless. See Dkt. 25. However, a motion for
sanctions must be served on the opposing party before it is
presented to the Court. See Fed. R. Civ. P.
11(c)(2). The moving party must then wait 21 days to file the
motion with the Court. See Fed. R. Civ. P. 11(c)(2).
Plaintiff admits he failed to comply with either requirement.
See Dkt. 30, at 9.
requests that his failure to comply with Rule 11 be excused
because he is pro se. But it is well-settled that
pro se status does not excuse a litigant from
following court rules, even though a pro se
litigant's pleadings and motions are construed liberally
in his favor. Ghazali v. Moran, 46 F.3d 52, 54 (9th
Cir. 1995); see also Briones v. Riviera Hotel &
Casino, 116 F.3d 379, 382 (9th Cir. 1997). The Court
notes that plaintiff's authority is not to the contrary
as his cases either deal with constructing substantive
arguments liberally (see Pembrook v. Wilson, 370
F.2d 37, 40 n.5 (9th Cir. 1966)), affirmed denial of a
pro se motion on the basis of failure to comply with
local rules (see Draper v. Coombs, 792 F.2d 915, 924
(9th Cir. 1986)), or are not binding precedent on this Court.
See Manago v. Davey, 1:16-cv-00399-LJO-GSA-PC, 2018
WL 6788041, at *2 (E.D. Cal. Dec. 26, 2018). Plaintiff's
argument that this is his first pro se lawsuit
appears inaccurate, as the Court is aware of multiple other
matters brought by plaintiff, acting pro se, in this
Court. See Simms v. King Cty. Detention Facility et
al., 2:04-cv-00725-JCC; Simms v. King Cty. Regional
Justice Ctr., 2:04-cv-02110 TSZ; Simms v. State of
Washington, 2:06-cv-00879-TSZ; Simms v. State of
Washington, 2:06-cv-00942-RSM; Simms v.
Holtgeerts, 2:06-cv-01255-RSL; Simms v. Clarke,
motion for sanctions is therefore denied.
Motion to File Amended Complaint and Motion to ...