Jensen v. State of Washington et al

Filing 79

ORDER ADOPTING 75 Report and Recommendation. The case is dismissed with prejudice. Signed by Judge Marsha J. Pechman. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WILLIAM FREDERICK JENSEN,
Plaintiff,

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CASE NO. C16-1963-MJP
ORDER ADOPTING REPORT AND
RECOMMENDATION;
DISMISSING CASE WITH
PREJUDICE

v.
STATE OF WASHINGTON, et al.,
Defendants.

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THIS MATTER comes before the Court on Plaintiff’s Objections (Dkt. No. 77) to the

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Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate

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Judge. (Dkt. No. 75.) Having reviewed the Report and Recommendation, the Objections, the

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Response (Dkt. No. 78), and all related papers, the Court ADOPTS the Report and

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Recommendation and DISMISSES the matter with prejudice.

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Background
The relevant facts and procedural background are set forth in detail in the Report and
Recommendation. (Dkt. No. 75.) Plaintiff objects to the Report and Recommendation’s finding

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ORDER ADOPTING REPORT AND RECOMMENDATION; DISMISSING CASE WITH PREJUDICE - 1

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that his claims are barred by the applicable statutes of limitations, which he contends were tolled

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while he exhausted his administrative remedies. (Dkt. No. 77 at 1-2.)

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Discussion
I.

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Legal Standard
Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the

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Magistrate Judge’s Report and Recommendation that has been properly objected to and may

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accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3); see also 28

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U.S.C. § 636(b)(1).

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II.

Statute of Limitations
Each of Plaintiff’s claims is subject to a three-year statute of limitations. See RCW

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4.16.080; RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002); Knight v.

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Washington State Dept. of Corrections, 147 F. Supp. 3d 1165, 1169-70 (W.D. Wash. 2015);

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Antonius v. King Cnty., 153 Wn.2d 256, 261-62 (2004). “[T]he limitations period accrues when

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a party knows or has reason to know of the injury which is the basis of the cause of action.”

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Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (citation omitted). While the statute of

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limitations is tolled “during the time period in which an inmate is actively exhausting his

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administrative remedies,” an inmate is “not entitled to tolling during the time he abandoned the

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process.” Soto v. Sweetman, 882 F.3d 865, 875 (9th Cir. 2018) (emphasis in original). Here,

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Plaintiff filed his original Complaint on December 22, 2016. (See Dkt. Nos. 1, 2.) Therefore,

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any claims arising before December 22, 2013 are barred by the statutes of limitations unless

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Plaintiff can show that he was actively exhausting his administrative remedies as of this date.

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Plaintiff alleges that, in response to allegations that he was soliciting other inmates for

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sex, he was placed in administrative segregation beginning on January 19, 2011 and was not

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ORDER ADOPTING REPORT AND RECOMMENDATION; DISMISSING CASE WITH PREJUDICE - 2

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released until March 5, 2012. (Dkt. No. 63 at ¶¶ 28, 54.) During this time, his administrative

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segregation status was reviewed and he was recommended for a six-month intensive

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management program and placed on Intensive Management Status (“IMS”) until February 15,

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2012. (Id. at ¶¶ 23, 29-46.) Thus, the Court considers whether Plaintiff exhausted his

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administrative remedies with regard to his administrative segregation placement and his IMS

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placement claims in turn:

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A. Administrative Segregation Placement

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After he was placed in administrative segregation, Plaintiff alleges he sent multiple

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communications to various prison officials requesting review of his placement. (Id. at ¶¶ 29-53.)

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On August 9, 2011, Plaintiff received a letter from John Campbell, DOC Correctional Specialist,

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explaining that his appeals had been denied. (See Dkt. No. 68, Ex. 11 (“The allegations you

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make . . . are not substantiated. You allege a widespread conspiracy requiring collusion between

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staff and offenders and after review this is found not to be the case.”).) Therefore, the Court

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finds that Plaintiff’s administrative segregation claim was tolled until August 9, 2011.

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B. IMS Placement
After he was released from administrative segregation on March 5, 2012, Plaintiff waited

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until October 28, 2014 to appeal his “placement, assignment and retention in [administrative

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segregation] on IMS between January 19, [2011] to March 5, 2012 and August 16, 2010 to

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September 22, 2010.” (Dkt. No. 63 at ¶ 57, Ex. Z.) On December 9, 2014, DOC Classification

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and Case Management Administrator Liza Rohrer denied Plaintiff’s appeal, and explained that

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he could have appealed between October 17, 2011 (the date on which the applicable appeals

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policy for IMS classification was established) and June 14, 2012 (the date on which the revised

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ORDER ADOPTING REPORT AND RECOMMENDATION; DISMISSING CASE WITH PREJUDICE - 3

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policy was established). (See Dkt. No. 68, ¶ 24, Ex. 10.) Therefore, the Court finds that

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Plaintiff’s IMS placement claim was tolled until June 14, 2012.

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While Plaintiff, in his Objections to the Report and Recommendation, claims that “the

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DOC’s policies were vague and nebulous and in some instances nonexistent” and that “certain

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defendants deliberately concealed and obfuscated the appeal and review process to deny [him]

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due process of law and to prevent his legitimate claims from receiving judicial review” (Dkt. No.

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77 at 2), Plaintiff does not identify any non-conclusory or non-speculative facts to support this

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contention, nor does he explain why he waited more than three years to file his Complaint.

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Conclusion
The Court concludes that, notwithstanding tolling, Plaintiff did not bring his claims until
well beyond the expiration of the applicable statutes of limitations, and ORDERS as follows:

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(1) The Report and Recommendation is ADOPTED;

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(2) The case is DISMISSED WITH PREJUDICE;

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(3) The Clerk of Court is directed to send copies of this Order to Judge Tsuchida and all

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counsel.

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Dated June 18, 2018.

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A

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Marsha J. Pechman
United States District Judge

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