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REPORT AND RECOMMENDATION

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES E. PIMPTION,

Plaintiff,

v.

KAREN NYGAARD,

Defendant.

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CASE NO. C06-0629-RSM

REPORT AND RECOMMENDATION

On May 5, 2006, plaintiff submitted a complaint pursuant to 42 U.S.C. § 1983, alleging

that he was denied adequate dental and medical attention during his confinement at the Snohomish

County Jail (“Jail”) in Everett, Washington. Because plaintiff’s original complaint listed John and

Jane Doe as the sole defendants, the court declined to direct service of the complaint and instead

granted plaintiff leave to amend his complaint. (Dkt. #8). Plaintiff filed an amended complaint

naming several defendants, including Karen Nygaard, and the court directed service of the

complaint on June 30, 2006. (Dkt. #10). In so doing, the court dismissed all defendants except

for Karen Nygaard because plaintiff’s complaint failed to state a cause of action against the

dismissed defendants. (Id.) Defendant Nygaard has now filed a motion for summary judgment.

(Dkt. #21).

In her motion for summary judgment, defendant argues that she cannot be liable under 42

U.S. § 1983 because she did not work at the Jail at the time of the events giving rise to this

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 The court notes that even if plaintiff had named a defendant who personally participated

in the events described in his complaint, it is debatable whether he alleges facts that state a claim

under § 1983. “While poor medical treatment will at a certain point rise to the level of

constitutional violation, mere malpractice, or even gross negligence, does not suffice.” Wood v.

Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

REPORT AND RECOMMENDATION

PAGE -2

lawsuit. In the declaration that she attaches to her motion, defendant states that she lived in

Wisconsin during the time that plaintiff alleges he received inadequate medical attention. (Dkt.

#22, Ex. 16 at 2). Accordingly, defendant contends that she did not personally participate in any

alleged violation of plaintiff’s civil rights. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir.

1981).

Plaintiff did not file a response to defendant’s motion for summary judgment, despite

having been warned pursuant to Rand v. Rowland, 113 F.3d 1520, 1524 (9th Cir. 1997) that

failure to do so could result in dismissal of this lawsuit. (Dkt. #10 at 5). Consequently, plaintiff

does not present any argument or evidence opposing the motion. Because defendant’s argument

is supported by her own declaration, which stands unchallenged by plaintiff, there is no genuine

issue of fact as to defendant Nygaard’s lack of personal participation in the events underlying this

action and she is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Therefore, the court recommends that defendant’s

motion for summary judgment be granted and this matter dismissed without prejudice.1

 A

proposed Order reflecting this recommendation is attached.

DATED this 5th day of December, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

Case 2:06-cv-00629-RSM Document 24 Filed 12/06/06 Page 2 of 2