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Winterer v. United States

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

October 2, 2019

JARED ANTHONY WINTERER, Plaintiff,
v.
UNITED STATES OF WASHINGTON, et al, Defendant.

          ORDER ON MISCELLANEOUS MOTIONS

          J. Richard Creatura, United States Magistrate Judge.

         This matter is before the Court on plaintiff's miscellaneous motions filed in response to this Court's Order to Show Cause or Amend Complaint (Dkt. 18). See Dkts. 19, 20, 21, 22, 24. Plaintiff also submitted two letters to this Court inquiring about the status of his multiple motions. See Dkts. 25, 26.

         I. Motion to Change Address (Dkt. 24)

         Plaintiff properly filed a notice of change of address on August 15, 2019. Dkt. 23. As such, plaintiff's Motion to Change Address (Dkt. 24) is unnecessary. Plaintiff's notice also states that he has been transferred to a different facility only temporarily. Accordingly, when plaintiff is transferred back to his facility, he should file a notice of change of address, but a motion is unnecessary.

         Local Civil Rule 10(f) provides guidance on filing a notice of changed address, which must be “received by the Clerk's Office within ten days of the change.” Local Rules W.D. Wash. LCR 10(f).

         Accordingly, plaintiff's Motion to Change Address (Dkt. 24) is DENIED as moot.

         II. Motion to Add Defendant (Dkt. 20)

         Plaintiff has previously filed a motion requesting to add the United States as a defendant in this action. See Dkt. 17. This Court denied that motion stating:

It is well-settled that “the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988)).
However, the Supreme Court has determined that federal officials can be sued for monetary damages for certain constitutional violations, including Eighth Amendment violations. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); see also Rodriguez v. Swartz, 899 F.3d 719 (9th Cir, 2018); Carlson v. Green, 42 U.S. 2880 (1979). The Ninth Circuit has held that "‘actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.'" Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (quoting Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991)). To state a claim under Bivens, a plaintiff must allege facts against a named person showing that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged deprivation was committed by a federal actor. Van Strum 940 F.2d at 409.

Dkt. 18 at 5-6.

         Plaintiff now appears to renew his motion to add the United States as a defendant stating that “[o]ne specific person or state official is not liable for ruining my life. United States is one. Add to the defendants in this suit.” Dkt. 20. He also states that the “United States should waive its sovereign immunity and become an appropriate defendant.” Dkt. 20. This Court does not have authority to waive sovereign immunity on behalf of the United States. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction”). Accordingly, plaintiff's Motion to Add Defendant (Dkt. 20) is DENIED.

         III. Motions for Reconsideration, for Release and Settlement, and to Make Channel (Dkts. 19, 21, 22.)

         Plaintiff submitted a Motion for Reconsideration (Dkt. 19) in response to this Court's Order to Show Cause or Amend Complaint (Dkt. 18). Therein, plaintiff states that he “[chooses] to show cause to help judge liberally construe.” Dkt. 19 at 1. The Court interprets this as plaintiff stating that, when liberally construed, his initial complaint is sufficient to state a claim for which relief may be granted. Plaintiff also makes mention of the Eighth Amendment, the Fifth Amendment, due process, and the Emergency Medical Treatment ...


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