Lambert v. Dennis

Filing 125

ORDER ADOPTING REPORT AND RECOMMENDATION dismissing action with prejudice by Judge Ricardo S Martinez. **4 PAGE(S), PRINT ALL**(Joshua Lambert, Prisoner ID: 807036)(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOSHUA D. LAMBERT,
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Plaintiff,

CASE NO. C15-1213-RSM

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v.
ORDER DISMISSING ACTION

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CHIEF WILLIAM DENNIS, et al.,
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Defendants.
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Plaintiff Joshua Lambert proceeds pro se and in forma pauperis (“IFP”) in this civil
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rights action pursuant to 42 U.S.C. § 1983. Plaintiff, who is currently incarcerated by the
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Washington Department of Corrections (“DOC”) and confined at Washington State Penitentiary
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(“WSP”), raises claims relating to his prior confinement at Island County Correctional Facility
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(“ICCF”). He names former ICCF Jail Administrator William Dennis and Island County as
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Defendants.
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Plaintiff alleges Mr. Dennis violated his constitutional rights by: (1) housing him in
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administrative segregation because of his status as a pro se criminal defendant and without the
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opportunity for a hearing; (2) ordering jail staff to confiscate his legal materials after he lost the
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ORDER DISMISSING ACTION
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ability to proceed pro se in his criminal trial; (3) directing jail staff to place him in a Behavior

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Modification Module (“BMM”), without any clothing, bedding, or furnishings, after he assaulted

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Dennis; (4) placing him on suicide watch, with clothing, bedding, and finger food restrictions,

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after the verdict in his trial and without the assessment of a mental health professional; and (5)

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not giving him requested antipsychotic medication or a medical visit for the voices he was

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hearing in his head. Dkt. #42 at 4-8. He challenges alleged Island County customs/policies of

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(1) placing pro se criminal defendants in administrative segregation; (2) “to not have adequate

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mental health access;” (3) allowing “for an inmate to be placed in a strip cell without clothing,

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bedding or furniture for assaultive behavior;” and (4) “forbid[ding] plaintiff from receiving

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medication.” Id. at 8-12. Mr. Dennis and Island County filed Motions for Summary Judgment.

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Dkts. #29 and #88. Plaintiff opposes the motions. On November 4, 2016, Magistrate Judge

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Mary Alice Theiler issued a Report and Recommendation (“R&R”) recommending the Court

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grant Defendants’ Motions and dismiss this matter with prejudice. Dkt. #116.

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Objections were due no later than November 25, 2016, twenty-one days after the R&R

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was signed. Id. at 46. This deadline was seven days longer than that required by Local Rule.

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See LCR 72. Objections were limited to twelve pages under Local Rule. Id.

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Plaintiff filed his Objections to the R&R on November 29, 2016, using the Prisoner e-

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filing system. Dkt. #117. Plaintiff’s Objections totaled 34 pages, approximately 24 of which

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were briefing. See id. At the same time, Plaintiff filed a Motion for Leave to allow extra pages

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and to extend the deadline. Dkt. #118. In Response to the Objections, Defendant Dennis moved

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to strike Plaintiff’s Objections as untimely and in excess of the page limit. See Dkt. #119 at 2-3.

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On December 20, 2016, Plaintiff filed a Reply brief. Dkt. #123.

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As an initial matter, Local Rule 72 forbids Plaintiff from filing a Reply brief unless one is
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ordered by the Court. LCR 72(b) (“no reply will be considered.”). The Court will not consider

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Plaintiff’s Reply and will deny Plaintiff’s Motion to extend the deadline for that Reply. Turning

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to Defendant’s Motion to Strike, the Court agrees that Plaintiff’s Objections are untimely and in

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excess of the page limit set forth by the Local Rules. Plaintiff was well aware that he was filing

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past the deadline as indicated by his Motion for Leave. It is not automatically permissible for

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Plaintiff to file late objections and simultaneously move for relief from the deadline. LCR 7(j).

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Local Rule 7(j) states that such a motion should be filed before the deadline, and that “[p]arties

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should not assume that the motion will be granted and must comply with the existing deadline

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unless the court orders otherwise.” Id. The local rule contemplates an emergency procedure for

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requesting relief; there is no evidence before the Court that Plaintiff’s circumstances constituted

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an emergency or that Plaintiff followed the procedure set forth in the Local Rule. The Court may

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extend a deadline after the fact based on a motion that establishes “excusable neglect.” Fed. R.

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Civ. P. 6 (b)(1)(B). Although the Court understands Plaintiff’s alleged difficulties in access the

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prison law library, Plaintiff’s Motion for Leave does not explain why he could not have filed his

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Objections prior to the last possible day when the law library was closed. Plaintiff fails to

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explain why he could not have moved for relief from the deadline prior to the deadline. The

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Court agrees with Defendant Dennis who argues that Plaintiff has made numerous electronic

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filings over the long course of this litigation and as a result should have been “fully aware of

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when he had access to the law library.” Dkt. #119 at 2-3. Accordingly, the Court will strike

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Plaintiff’s Objections as untimely. The Court notes that even if it had considered Plaintiff’s

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Objections, Plaintiff fails to demonstrate factual mistake or legal error in the R&R.

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The Court, having reviewed Plaintiff’s civil rights complaint, the Report and

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Recommendation of Mary Alice Theiler, United States Magistrate Judge, and the remaining
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record, does hereby find and ORDER:

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(1)

Plaintiff’s Motion for Leave, Dkt. #118, is DENIED;

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(2)

Plaintiff’s Objections, Dkt. #117, are STRICKEN as untimely;

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(3)

Plaintiff’s Motion to Extend Deadline, Dkt. #122, is DENIED;

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(4)

The Court adopts the Report and Recommendation, Dkt. #116;

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(5)

Defendants Motions for Summary Judgment, Dkts. #29 and #98, are GRANTED;

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(6)

Plaintiff’s complaint, and this action, are DISMISSED with prejudice; and

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(7)

The Clerk is directed to send copies of this Order to the parties and to the

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Honorable Mary Alice Theiler.

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DATED this 27 day of December 2016.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER DISMISSING ACTION
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