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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

VINCENT DANIEL HOPPER,

Plaintiff,

v.

JOHN DOE MYERS RECREATIONAL

COACH NORTHWEST DETENTION

CENTER et al.,

Defendants.

Case No. C05-5680RBL

REPORT AND

 RECOMMENDATION

REGARDING DEFENDANT’S

FIRST MOTION TO DISMISS

NOTED FOR:

JUNE 9th , 2006

This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge

pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR

3, and MJR 4. Before the Court is the first of two motions to dismiss filed by the defendants. (Dkt. # 50). 

The second motion is not noted to be heard until May 26th, 2006. (Dkt. # 67). 

Plaintiff in this action challenges the sufficiency of the law library at the Northwest Detention

Center. (Dkt. # 11). He also challenges photo copying policies and the phone system claiming both deny

him adequate legal access under the First and Fourteenth Amendments. (Dkt. # 11). Plaintiff seeks

damages for injury to cases he is pursuing and injunctive relief. (Dkt. # 11).

Defendants move to dismiss, claiming plaintiff is no longer at the Northwest Detention Center and

therefore his injunctive claims are moot. (Dkt. # 50). Defendants also claim plaintiff can show no injury to

any litigation and his action must therefore be dismissed. (Dkt. # 50).

Plaintiff has not responded to the pending motion, but, mail sent to him has been returned as

undeliverable. (Dkt. # 58, 56, 59, 63, 64). As defendants argue plaintiff is no longer at the facility the

court will not consider plaintiff’s lack of response as an admission that the motion has merit as allowed by

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Local Rule 7.

DISCUSSION

Counsel does not indicate if this motion is brought pursuant to Fed. R. Civ. P 12 (b)(6), Fed. R.

Civ. P. 12 (b) (1), or some other unenumerated Rule 12 motion. As counsel has presented evidence

outside of the pleadings the court will consider the motion under Fed. R. Civ. P 12 (b)(1). If the court

were not proceeding under Fed. R. Civ. P 12 (b)(1) the motion would have to be converted to a motion for

summary judgment. A motion under Fed. R Civ. P 12 (b)(1) is a jurisdictional challenge and the court may

consider information outside the pleadings. 

Counsel argues plaintiff’s claims for injunctive relief are moot because of his transfer out of the

facility, and they provide documents showing plaintiff’s transfer to local law enforcement authorities. 

(Dkt. # 50). Contrary to counsel’s assertions plaintiffs claims are not moot, however plaintiff lacks

standing to proceed with his injunctive claims. The concepts of mootness and standing are closely related. 

Both concepts address whether there is a live case and controversy before the court. The difference is that

mootness addresses an issue while standing addresses a plaintiff’s individual right to have the issue

resolved. When considering mootness the court may consider if the issue is capable of repetition but

evading review. In contrast, for a person to raise the issue they must always have standing and the capable

of repetition doctrine does not apply.

Unless conditions at the facility have changed the injunctive issue is not moot. Further, plaintiff

may have a claim for damages that is independent of standing to seek injunctive relief. However, in order

to proceed with a claim for injunctive relief plaintiff must be able to show real and immediate threat of

irreparable injury and no adequate remedy at law. City of Los Angels v. Lyons, 461 U.S. 95 (1983).

Plaintiff’s transfer out of the Northwest Detention Center deprives him of standing to seek

injunctive relief and defendant’s motion to dismiss injunctive relief claims must be GRANTED.

Defendants also ask the court to dismiss the damage claims as plaintiff cannot show injury in fact. 

(Dkt. # 50, page 7 through 10). While this argument is presented as a challenge to the case or controversy

requirement of Article III counsel is asking the court to weigh the evidence. A motion to dismiss under

Fed. R. Civ. P. 12 (b)(6) challenges only the sufficiency of the complaint. A motion to dismiss Fed. R. Civ.

P 12 (b)(1) only challenges jurisdiction of the court and does not address the merits of a claim. Defendants

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ask the court to consider whether plaintiff’s allegations are in fact true, the allegation is that cases plaintiff

was litigating were injured by the access to courts provided him at the Northwest Detention Center. At

this stage of the proceedings material allegations are taken as admitted and the complaint is construed in

the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). The motion to dismiss damage

claims must be DENIED. a proposed order accompanies this Report and Recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ.

P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v

Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to

set the matter for consideration on June 9th, 2006, as noted in the caption. 

 

DATED this 18th day of May, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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