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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MAURICE DALTON,

Plaintiff,

v.

SARGENT PAUL ESTES et al.,

Defendants.

Case No. C05-5820RJB

REPORT AND

RECOMMENDATION

NOTED FOR:

July 14th, 2006

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.

Before the court is defendant, State of Washington’s motion to dismiss. (Dkt. # 20). The motion

specifically indicates it is brought solely by the State of Washington and does not affect the other

named defendants. (Dkt. # 20, page 1 footnote 1). Rather than respond Plaintiff has filed a motion

to “deny hearing of State of Washington’s motion to dismiss and strike LFS from case file.” (Dkt. #

23). Plaintiff contends the State of Washington is not a party to this action and the legal face sheet,

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LFS, submitted by the state should be struck from the file. (Dkt. # 23). Plaintiff’s document has

been considered by the court as a response to the state’s motion. Plaintiff’s motions within the

pleading are DENIED.

STANDARD OF REVIEW

A court should dismiss a claim under Fed.R.Civ.P. 12(b)(6) if it appears beyond doubt that

the plaintiff can prove no set of facts to support the claim that would entitle the plaintiff to relief. 

Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983), citing; Conley v. Gibson, 355 U.S. 41,

45-56 (1957). Dismissal for failure to state a claim may be based on either the lack of a cognizable

legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v.

Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). 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).

DISCUSSION

Plaintiff did not name the State of Washington in the caption of his action, but he did name

the state as a party in the body of the complaint and he seeks ten million dollars damages. (Dkt. # 5,

pages 3 and 4). The state properly notes it is not a person within the meaning of 42 U.S.C. §

1983.(Dkt. # 20). Neither states nor state officials acting in their official capacities are persons for

purposes of 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 48, 71 (1989). 

Because the state is not a person within the meaning of § 1983, plaintiff has not stated a cause of

action against the state.

Plaintiff now contends the state is not a named party in this case. (Dkt. # 23). His argument

ignores the fact that he specifically named the state in the body of the complaint. Defendant, State of

Washington’s motion should be GRANTED. 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

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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 July 14th, 2006, as noted in the

caption. 

DATED this 16th day of June, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge 

Case 3:05-cv-05820-RJB Document 29 Filed 06/16/06 Page 3 of 3