Gore v. Tacoma Police Department

• Court: District Court, W.D. Washington
• Decided: February 21, 2020
• Docket: 3:18-cv-05075
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JERMAINE GORE, Case No. C18-5075-BHS-TLF 7 Plaintiff, v. ORDER DENYING MOTION TO 8 “SUPPLEMENT THE RECORD” TACOMA POLICE DEPARTMENT, et al., AND MOTION FOR DEFAULT 9 JUDGMENT Defendants. 10

11 Plaintiff proceeds pro se and in forma pauperis in this civil rights action. Plaintiff 12 now moves to “supplement the record” and for default judgment against defendants 13 Jacob Whitehurst, Todd Bakken, and Tom Grabski. Dkt. 34. For the reasons below, 14 plaintiff’s motion is DENIED. 15 A. Motion to “Supplement the Record” 16 Plaintiff moves to “supplement the record” to submit what purport to be 17 transcripts from a suppression hearing in plaintiff’s criminal case including testimony 18 from defendants Thiry, Wales and Vold, as well as investigation reports by defendants 19 Whitehurst, Bakken and the Tacoma Police Department. Dkt. 34. 20 Plaintiff’s motion and submissions are improper in this context. Plaintiff does not 21 include any additional claims against defendants in his motion. Id. To the extent plaintiff 22 seeks to add evidence to the record, his efforts at this juncture are futile. Evidence may 23 not be randomly submitted to the Court, there must be some context for consideration of 24 1 the proffered evidence. Typically, evidence is submitted to the Court in support of, or in 2 opposition to, a request for relief apart from merely the request that the Court accept the 3 evidence. 4 The evidence submitted by plaintiff, which is untethered from any request for

5 relief apart from the request that the evidence simply be accepted, is not properly before 6 the Court. Accordingly, plaintiff’s “motion to supplement the record” is DENIED without 7 prejudice to plaintiff’s submission of the evidence in a proper context, e.g., in support of 8 or in opposition to a proper request for relief from the Court. 9 Plaintiff is also advised that if he wishes to add factual allegations to his current 10 complaint, he must seek leave of court to file a third amended complaint together with a 11 proposed amended pleading including all of the claims he intends to allege. See Ferdik 12 v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (an amended complaint supersedes 13 the original in its entirety, making the original as if it never existed); Local Rule 15. 14 B. Motion for Default Judgment

15 Plaintiff also moves a default judgment (Dkt. 34) against defendants Jacob 16 Whitehurst, Todd Bakken, and Tom Grabski, based upon their failure to answer the 17 complaint. Rule 55 of the Federal Rules of Civil Procedure provides in relevant part: 18 (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and 19 that failure is shown by affidavit or otherwise, the clerk must enter the party's default. 20 (b) Entering a Default Judgment. 21 (1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that 22 can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit showing the amount due--must enter judgment for that 23 amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. 24 1 (2) By the Court. In all other cases, the party must apply to the court for a 2 default judgment. . . .

3 Id. (emphasis added). 4 Here, plaintiff’s motion for default judgment against defendants Jacob 5 Whitehurst, Todd Bakken, and Tom Grabski is premature because these defendants 6 have not been served in this action. The Court has directed service of plaintiff’s second 7 amended complaint against the unserved defendants Jacob Whitehurst, Todd Bakken, 8 and Tom Grabski, and Stuart Hoisington, by separate order. 9 Accordingly, plaintiff’s motion for default judgment is DENIED without prejudice 10 as premature. 11 The Clerk shall send a copy of this Order to plaintiff and to counsel for 12 defendants. 13 Dated this 21st day of February, 2020. 14 A 15 Theresa L. Fricke United States Magistrate Judge 16 17 18 19 20 21 22 23 24