McKinney v. Mills et al

Filing 29

ORDER denying the 26 REPORT AND RECOMMENDATIONS and REFERRING matter back to Magistrate Judge for further review. Signed by Judge Benjamin H Settle.(CMG; cc to Plaintiff)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The R&R takes the position that, since Plaintiff's handwritten statement resulted in a department investigation and written reprimand of Defendant, Plaintiff arguably began but did not exhaust the grievance process. Dkt. 26 at 7. This position is at odds with the Defendant's position, which is that Plaintiff never even began the grievance process because he failed to request and then submit a grievance form, the first step(s) in the process. See Dkt. 13 at 4-5. ORDER ­ 1
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA JONATHAN W. McKINNEY, Plaintiff, Case No. C08-5720BHS v. C/O JOHN MILLS, Defendant. ORDER DENYING REPORT AND RECOMMENDATION AND REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR FURTHER REVIEW

This matter comes before the Court on the Report and Recommendation of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 26), and Plaintiff's objections to the Report and Recommendation (Dkt. 27). The November 16, 2009, Report and Recommendation ("R&R") recommends dismissing Plaintiff's complaint without prejudice because Plaintiff failed to exhaust the prison's grievance process before filing his federal complaint. Dkt. 26. Specifically, the R&R recognizes that Plaintiff arguably began some sort of process by filing a handwritten complaint but that Plaintiff did not complete the administrative appeal process before coming before this Court. Dkt. 26 at 7.1

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On December 2, 2009, Plaintiff timely objected to the R&R (Dkt. 27) and also filed a proposed second amended complaint (Dkt. 28). Plaintiff's second amended complaint alleges facts that, if true, could establish that Plaintiff's attempts to engage in the prison's grievance process were thwarted by the prison staff. Defendant did not respond to Plaintiff's objections to the R&R. It appears that more facts are needed before this matter can be resolved. It is unclear whether Plaintiff began the grievance process through the submission of a handwritten statement. It is unclear whether or not Plaintiff was prevented by the prison staff from exhausting his remedies. Therefore, the Court concludes that Plaintiff's complaint cannot be dismissed prior to evaluating what effect, if any, the proposed amended complaint has on his case. The Court having considered the Report and Recommendation, Plaintiff's objections, and the remaining record, does hereby find and order: (1) (2) The Court DENIES the Report and Recommendation; and This action is REFERRED back to the Magistrate Judge for further review as

discussed herein. DATED this 25th day of January, 2010.

A

BENJAMIN H. SETTLE United States District Judge

ORDER ­ 2