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County Department of Adult and Juvenile Detention’s grievance-filing program. See Dkt. No.

6 at 10-13. Defendant’s motion for summary adjudication argues that because plaintiff failed to

demonstrate that the alleged conduct amounts to a “policy or custom” of King County, or that

he personally suffered a constitutional deprivation as a result of this alleged practice, plaintiff’s

claim fails as a matter of law.

REPORT AND RECOMMENDATION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES DEAN WILKS,

Plaintiff,

v.

OFFICER S. PORTER, et al.,

Defendants.

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Case No. C05-2057-RSM-JPD

REPORT AND RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff is an inmate at the King County Correctional Facility (KCCF) in Seattle,

Washington who is proceeding pro se and in forma pauperis this 42 U.S.C. § 1983 civil rights

action. Plaintiff’s amended complaint (Dkt. No. 6) asserts that several KCCF prison officials

violated plaintiff’s First and Fourteenth Amendment rights by, for example, failing to provide

him with a shaving razor, extra socks, extra underwear, extra toothpaste, and an extra

toothbrush; failing to provide him with an extra fifteen minutes of his “hour out” of his cell;

and failing to properly consider numerous grievances he filed.1 This matter comes before the

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R. Civ. P. 41(a).

REPORT AND RECOMMENDATION

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Court on defendants’ Motion for Summary Judgment (Dkt. No. 24) and plaintiff’s “Motion to

Dismiss and Request for Waiver of the Filing Fee.” Dkt. No. 26. Defendants’ motion argues

that plaintiff’s claim for relief should be dismissed on the bases of qualified immunity, failure

to exhaust administrative remedies, and failure to establish a “policy or custom” sufficient to

invoke municipal liability under 42 U.S.C. § 1983. Plaintiff, rather than opposing defendants’

motion, requested instead that this Court dismiss the above-entitled action. Dkt. No. 26 at 2-

4.2 After careful consideration of the motions, supporting materials, governing law and the

balance of the record, the Court recommends that plaintiff’s Motion to Dismiss and Request

for Waiver of the Filing Fee be DENIED and that defendants’ Motion for Summary Judgment

be GRANTED.

A. Fed. R. Civ. P. 41(a)

Federal Rule of Civil Procedure 41(a)(1) permits a voluntary dismissal without

prejudice only if the plaintiff files a notice of dismissal before the defendant files an answer or

summary judgment motion and the plaintiff has never previously dismissed an action “based on

or including the same claim.” Fed. R. Civ. P. 41(a)(1); Wilson v. City of San Jose, 111 F.3d

688, 692 (9th Cir. 1997). Once the defendant has responded to the complaint, the plaintiff

absolute right under Rule 41(a)(1) disappears, and the action may be dismissed only by

stipulation or by order “upon such terms and conditions as court deems proper.” Fed. R. Civ.

P. 41(a)(2). The Court deems that a dismissal without prejudice is inappropriate in the present

case.

B. Fed. R. Civ. P. 56

“Claims lacking merit may be dealt with through summary judgment” under Rule 56 of

the Federal Rules of Civil Procedure. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). 

Summary judgment “shall be entered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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REPORT AND RECOMMENDATION

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genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). 

The defendants filed a detailed motion outlining the arguments of qualified immunity, 

failure to exhaust administrative remedies, and failure to plead a “policy or custom” sufficient

to invoke municipal liability under 42 U.S.C. § 1983, supported by the declaration of Ms.

Yamada (Dkt. No. 25). By doing so, defendants have met their Rule 56(c) burden of showing

this Court that the nonmovant lacks essential evidence to support his case. Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). By failing to respond to the arguments made in

defendants’ motion, plaintiff has failed to meet his burden of moving beyond the pleadings to

“set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). 

As a result, defendant’s motion for summary judgment should be granted and plaintiff’s

complaint dismissed with prejudice.

II. CONCLUSION

For the foregoing reasons, the Court recommends that plaintiff’s Motion to Dismiss

and Request for Waiver of the Filing Fee (Dkt. No. 26) be DENIED, and defendants’ Motion

for Summary Judgment (Dkt. No. 24) be GRANTED. This Court further recommends that

plaintiff’s amended complaint (Dkt. No. 6) be DISMISSED with prejudice. A proposed order

accompanies this Report and Recommendation. 

DATED this 30th day of October, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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