Hunt v. Cunningham et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 41 Report and Recommendations. Signed by Senior Judge Justin L. Quackenbush. (AY, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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)
)
Plaintiff,
) No. CV-15-05042-JLQ
)
) ORDER ADOPTING IN PART
) REPORT AND RECOMMENDATION
vs.
)
)
KELLON CUNNINGHAM, et al.,
)
)
Defendants.
)
___________________________________ )

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BEFORE THE COURT is the Report and Recommendation (ECF No. 41, hereafter

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“R & R”) of Magistrate Judge Hutton and Defendants’ Objections (ECF No. 42) thereto.

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The R & R was filed on December 2, 2015, and Objections were timely filed on

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December 15, 2015. Any response to the Objections by Plaintiff was due no later than

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January 4, 2016. No response was filed.

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DONALD R. HUNT,

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I. Introduction and Background

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Plaintiff initially filed this action in the Franklin County Superior Court for the

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State of Washington on or about February 27, 2015. Defendants were served on May 6,

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2015. (ECF No. 2). The Complaint alleges civil rights violations under 42 U.S.C. § 1983,

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and was removed by Defendants to this court on May 26, 2015. A Scheduling

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Conference was held, and a Scheduling Order entered on July 17, 2015. (ECF No. 11).

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The Scheduling Order set the close of discovery as November 30, 2015, and the deadline

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for the filing of dispositive motions as December 30, 2015. On July 22, 2015, five of the

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ten named Defendants filed a Motion for Judgment on the Pleadings, and that Motion is

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the subject of the R & R.

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ORDER - 1

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II. Discussion

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The R & R recommends that Defendants’ Motion for Judgment on the Pleadings

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be denied and Plaintiff be allowed to amend his Complaint. The Objections seek

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clarification of the R & R, specifically as to Defendant Kroshus. The R & R states that

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the “claims against defendant Kroshus, without more, should be dismissed.” (ECF No.

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41, p. 11). However, the ultimate conclusion of the R & R is that Defendants’ Motion

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be denied, and Plaintiff be given the opportunity to amend. Defendants state they do not

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object to Plaintiff being granted leave to file an Amended Complaint, but request that the

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court screen any Amended Complaint.

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The primary claim of Plaintiff’s Complaint (ECF No. 3-1) is that he filed numerous

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grievances in the prison system, and was then retaliated against for filing those grievances

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in violation of his First Amendment rights. The court agrees generally with the

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conclusions of the R & R and finds: 1) Plaintiff has stated a claim as to some of the

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Defendants; 2) some of Plaintiff’s assertions are conclusory and vague; and 3) some of

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the allegations do not state Constitutional claims. The R & R states that verbal

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harassment and yelling alone is generally insufficient to state a Constitutional claim.

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(ECF No. 41, p. 7). The R & R states that “severe or prolonged” lack of access to proper

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sanitation can constitute a Constitutional violation. (Id. at 8). However, being deprived

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of hand soap for a few hours cannot be so construed. The R & R further informs Plaintiff

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that he “should clarify which Defendants he specifically alleges directly created” the

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conditions of which he complains. (Id. at 41). Plaintiff has named ten Defendants.

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Plaintiff must specifically identify what his specific claims are as to each Defendant, and

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not merely refer to all Defendants. From a review of the Complaint and the grievance

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documents submitted by Plaintiff (ECF No. 38), it appears Plaintiff’s allegations may be

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overly broad in naming ten Defendants.

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III. Conclusion

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Plaintiff has filed no Objection to the recommendation he be given the opportunity

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to file an Amended Complaint. Defendants have sought clarification of the R & R, but

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have also stated no objection to allowing Plaintiff to amend. The court has concerns as

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to the sufficiency of the Complaint as to some of the claims against some of the

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Defendants. However, the court concurs with the recommendation that Plaintiff be

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allowed leave to amend.

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On January 12, 2016, just prior to the time that this Order would have issued,

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Plaintiff filed a “First Amended Complaint” (ECF No. 47). This First Amended

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Complaint was filed prematurely, before this court had granted leave for such filing.

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Plaintiff did not have the benefit of this court’s direction, set forth herein, when he filed

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the First Amended Complaint. The court offers no opinion at this time as to the

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sufficiency of the First Amended Complaint, but does observe that Plaintiff has

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appropriately dismissed Defendant Kroshus in light of the R & R’s conclusion that such

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claims should be dismissed.

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IT IS HEREBY ORDERED:

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1. The Report and Recommendation (ECF No. 41) is adopted to the extent set
forth herein.

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2. Defendants’ Objections (ECF No. 42) are sustained in part as set forth herein.

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3. Plaintiff, if he chooses, may file an additional amended complaint by no later

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than February 8, 2016. The document shall be clearly labeled as the “Second Amended

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Complaint”. If Plaintiff chooses to file a Second Amended Complaint, it will operate as

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a complete substitute for (rather than a supplement to) the prior Complaints.

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4. Plaintiff’s Second Amended Complaint must contain a short and plain statement

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of the facts set forth in separately numbered paragraphs. It must contain specific factual

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allegations against specific Defendants, rather than generically referring to all

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Defendants. It must also clearly delineate the causes of action asserted, the facts in

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support of that claim, and the Defendant(s) against whom the claim is asserted.

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5. Alternatively, Plaintiff may choose to proceed with the First Amended
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Complaint (ECF No. 47) that was filed on January 12, 2016. The court notes that

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Plaintiff has failed to sign the First Amended Complaint. If Plaintiff chooses to proceed

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on the First Amended Complaint, he shall file a “Notice” stating his intent to so proceed

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by no later than February 8, 2016. The court will then enter an Order resetting pretrial

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dates, including a deadline for any further dispositive motions

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6. Lastly, the court is in receipt of a letter from Plaintiff dated January 4, 2016, and

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received by the Clerk on January 7, 2016. The letter states in part that Plaintiff was not

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aware of his opportunity to respond to Defendants’ Objection to the R & R until he

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received the court’s Order dated December 28, 2015. The letter does not specifically

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request additional time, nor is it denominated a “motion”. To the extent it is a request for

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additional time, it is DENIED. The response deadline was not set by the Order of

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December 28, 2015, but was merely repeated therein. The deadline was set in the R &

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R. (ECF No. 41, p. 12).

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IT IS SO ORDERED. The Clerk shall enter this Order and provide copies to
counsel and to Plaintiff.
Dated this 13th day of January, 2016.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

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ORDER - 4