United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Richard Creatura, United States Magistrate Judge.
U.S.C. § 1983 civil rights matter has been referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C.
§§ 636 (b)(1)(A) and (B) and Local Magistrate Judge
Rules MJR 1, MJR 3, and MJR 4. Before the Court is
defendants' Motion to Dismiss (Dkt. 6) and the following
miscellaneous motions: plaintiff's Motion for Scheduling
Order (Dkt. 8); plaintiff's Motion to Remand/Remove case
back to Pierce County Superior Court (Dkt. 13);
plaintiff's Motion to Challenge the Sufficiency of the
Pleading Under FRCP 12(b)(6) (Dkt. 19); Application for Writ
of Mandamus (Dkt. 22).
considered plaintiff's complaint and the relevant law,
this Court recommends that defendants Motion to Dismiss be
granted and plaintiff's claim be dismissed with
prejudice. Plaintiff has filed his § 1983 complaint
stating that he received ineffective assistance of counsel at
his trial and seeks reversal, remand, or a new trial, but
does not seek monetary damages. This type of claim must be
brought in federal court as a § 2254 petition for writ
of habeas corpus-not § 1983. Plaintiff brings additional
claims for legal malpractice and conspiracy arising under
state and federal law that are barred by the statute of
limitations. Plaintiff has not plead facts demonstrating that
equitable tolling is proper for his case.
this Court recommends plaintiff's claims be dismissed
to the motion to dismiss, defendants submit an unpublished
decision from the Court of Appeals of the State of
Washington, Division II, affirming plaintiff's conviction
and sentence, but remanding the case to the Superior Court to
modify the conditions of plaintiff's community custody.
See Dkt. 8-1 at 4.
ruling on a motion to dismiss, “a court may generally
consider only allegations contained in the pleadings,
exhibits attached to the complaint, and matters properly
subject to judicial notice.” Swartz v. KPMG
LLP, 476 F.3d 756, 763 (9th Cir. 2007). The Court may
take judicial notice of matters either (1) generally known
within the trial court's territorial jurisdiction or (2)
capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
Fed.R.Evid. 201(b); Harris v. Cty. of Orange, 682
F.3d 1126, 1131-32 (9th Cir. 2012) (noting that a court may
take judicial notice of federal and state court records).
Accordingly, the Court takes judicial notice of the Court of
proceeding pro se, initially filed his complaint
with the Superior Court of Washington. Defendants removed the
action to this Court on July 24, 2019. Dkt. 1 at 1. This
Court has original jurisdiction of this action under 28
U.S.C. § 1331. See Dkt. 1 at 1-2. Pursuant to
28 U.S.C. § 1441(a), defendants are permitted to remove
this action to the district court because it arises under 42
U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. §
1985, and 42 U.S.C. § 1986.
filed a Motion to Dismiss (Dkt. 6) on July 31, 2019.
Thereafter, plaintiff was properly served with a
Rand Notice. See Dkt. 7. Plaintiff filed a
Motion for Leave to File Overlength Brief (Dkt. 10), which
this Court granted. See Dkt. 15. Plaintiff's
response to defendants' motion to dismiss was filed on
August 5, 2019. See Dkts. 10, 14. Defendants replied
to plaintiff's response on August 23, 2019. Dkt. 16.
plaintiff has filed a Motion for Scheduling Order (Dkt. 8), a
Motion to Remand/Remove case back to Pierce County Superior
Court (Dkt. 13), a Motion to Challenge the Sufficiency of the
Pleading Under FRCP 12(b)(6) (Dkt. 19), and an Application
for Writ of Mandamus (Dkt. 22).
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure can be granted only if the complaint, with
all factual allegations accepted as true, fails to
“raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 545 (2007). A complaint must contain a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Mere
conclusory statements in a complaint and “formulaic
recitation[s] of the elements of a cause of action” are
not sufficient. Twombly, 550 U.S. at 544; Chavez
v. United States, 683 F.3d 1102, 1108-09 (9th Cir.
2012). “Dismissal can be based on the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Ballistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9th Cir. 1990).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.” A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a