1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

VINCENT DANIEL HOPPER,

Plaintiff,

v.

G. WIGEN WARDEN NORTHWEST

DETENTION CENTER et. al.,

Defendants.

Case No. C05-5680RBL

ORDER ON PLAINTIFF’S MOTION

TO STAY, AND MOTION TO

TRANSFER THE CASE, AND ON

DEFENDANT’S MOTION TO

WITHDRAW THE FIRST MOTION

TO DISMISS 

This Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. § 636(b)(1)(B). The plaintiff has been granted leave to proceed in forma pauperis.

Plaintiff seeks injunctive relief and damages in this action. He challenges legal library access policies

for detainees such as himself. (Dkt. # 1). Before the court is plaintiff’s motion asking to stay the case

and continue defendants motion to dismiss. (Dkt. # 69), Plaintiff also asks this action be transferred

to Judge Burgess. (Dkt. # 70). 

Defendants filed two motions to dismiss. (Dkt. # 50 and 67). Defendants now ask that the

first motion to dismiss be withdrawn. (Dkt. # 73). Defendant’s counsel states that a motion to

withdraw the first motion to dismiss was signed May1st, 2006, after Mr. Hopper was returned to

Case 3:05-cv-05680-RBL Document 77 Filed 06/01/06 Page 1 of 2
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER - 2

Federal custody from local law enforcement. (Dkt. # 73). The motion was inadvertently not filed

until after the court had issued a Report and Recommendation. (Dkt. # 71). 

Defendant’s motion to withdraw the first motion to dismiss is GRANTED. The Report and

Recommendation addressing the first motion, (Dkt. # 71), is withdrawn.

The court was perplexed when a second motion to dismiss was filed as Fed. R. Civ. P 12 (g)

normally limits a party to one motion to dismiss. The fact that a motion to withdraw was prepared

but inadvertently not filed explains the filing of a second motion to dismiss.

Plaintiff’s motions are DENIED. Contrary to plaintiff’s assertions the question raised in

defendant’s second motion to dismiss is a question of law and not a mixed question of law and fact. 

A motion to dismiss tests only the sufficiency of the complaint and the legal question that has been

raised is whether the named defendants can be sued in their official or individual capacity for

damages or injunctive relief.

Plaintiff’s second motion, to transfer the case to Judge Burgess, is also DENIED. If plaintiff

believes this action is duplicative or similar to other litigation he currently has pending before Judge

Burgess, a motion to consolidate may be appropriate. The court does not normally shift a case to

another Judge without good cause.

Defendant’s motion to dismiss will be dealt with separately as it is a dispositive motion which

requires a Report and Recommendation.

The Clerk is directed to send a copy of this Order, to plaintiff and counsel for defendants and

remove docket numbers 69, 70, and 73 from the court’s calendar.

DATED this 1st day of June 2006. 

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge 

Case 3:05-cv-05680-RBL Document 77 Filed 06/01/06 Page 2 of 2