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Finch v. Whitehead

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

October 10, 2019

EMANUEL FINCH, Plaintiff,
v.
K. RICHARD WHITEHEAD, et al, Defendants.

          REPORT AND RECOMMENDATION

          J. Richard Creatura, United States Magistrate Judge.

         This 42 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).

         Having 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.

         Accordingly, this Court recommends plaintiff's claims be dismissed with prejudice.

         MATERIALS FOR CONSIDERATION

         Attached to the motion to dismiss, defendants submit an unpublished decision from the Court of Appeals of the State of Washington, Division II, affirming plaintiff's conviction and sentence, but remanding the case to the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.

         In 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 Appeals decision.

         PROCEDURAL HISTORY

         Plaintiff, 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.

         Defendants 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.

         Additionally, 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).

         STANDARD OF REVIEW

         A 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 ...

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