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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

GEORGE C. SWINYER Jr.,,

Plaintiff,

v.

BALINDA COLE, et al.,,

Defendants.

Case No. C05-5610 FDB

ORDER ADOPTING REPORT AND

RECOMMENDATIONS AND

DISMISSING WASHINGTON

STATE DEPARTMENT OF

CORRECTIONS FROM THIS

ACTION WITH PREJUDICE AND

DISMISSING BALINDA COLE AND

NORTHERN RECEPTION CENTER

PAROLE BOARD OF

CALIFORNIA’S YOUTH

CORRECTIONAL FACILITY

WITHOUT PREJUDICE

The Magistrate Judge recommends that this 42 U.S.C. § 1983 Civil Rights action be

dismissed with prejudice as to Defendant Washington State Department of Corrections as this

defendant is not a person within the meaning of the Civil Rights Act and that Defendants Balinda

Cole and the Northern Reception Center Parole Board of California’s Youth Correctional Facility

(hereafter, Facility) be dismissed without prejudice for lack of personal service. As detailed by The

Magistrate Judge, the Department of Corrections is not a person subject to suit within the meaning

of the Civil Rights Act. See, Will v. Michigan Dept. Of State Police, 491 U.S. 58 (1989).

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26 ORDER - 2

Defendants Cole and the Facility were not personally served with summons and complaint and thus,

the Court lacks jurisdiction over these defendants.

Plaintiff has filed objection asserting that it is the Court’s responsibility to effectuate service

on the defendants. The Magistrate Judge entered an Order Directing Service by US Marshal

Service. This Order required the Marshal Service to send by first class mail a copy of the complaint,

notice of lawsuit and request for waiver of personal service pursuant to Fed. R. Civ. P. 4(d). The

request for waiver of service was returned unexecuted as to both of the defendants. Thus, personal

service is required. Plaintiff’s pro se status, alone, is not a justifiable excuse for defective service. 

See, Daly-Murphy v. Winston, 837 F.2d 348 (9th Cir. 1987). Further, there is no evidence to support

Plaintiff’s additional assertions and they are insufficient to convince this Court that these defendants

are subject to the Court’s jurisdiction.

The Court, having reviewed the Report and Recommendation of the Hon. J. Kelly Arnold,

objections to the Report and Recommendation and the remaining record, does hereby find and

ORDER:

(1) The Court adopts the Report and Recommendation;

(2) Defendant Washington State Department of Corrections’s Motion to Dismiss [Dkt #

20] is GRANTED, and the case dismissed as to this defendant with prejudice;

(3) Defendants Balinda Cole and the Northern Reception Center Parole Board of

California’s Youth Correctional Facility are dismissed, without prejudice;

(4) The Clerk is directed to send copies of this Order to Plaintiff, counsel for Defendants,

and to the Hon. J. Kelly Arnold. 

 FRANKLIN D. BURGESS

DATED this 8th day of June, 2006. A

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26 ORDER - 3

UNITED STATES DISTRICT JUDGE

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