Heck v. Gage et al

Filing 55

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H Settle re 54 Objections to Report and Recommendation filed by Clinton Heck. (TG; cc mailed to plaintiff)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 CLINTON HECK, 9 10 11 Plaintiff, v. Case No. C11-5539BHS ORDER ADOPTING REPORT AND RECOMMENDATION BRUCE GAGE, et al., 12 Defendants. 13 14 This matter comes before the Court on the Report and Recommendation (“R&R”) of 15 the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 53) and Plaintiff 16 Clinton Heck’s (“Heck”) objections to the R&R (Dkt. 54). 17 On March 6, 2012, Judge Creatura issued the R&R recommending that the Court 18 grant Defendants’ motion to dismiss because (1) Heck’s claims were unexhausted and (2) 19 Defendants are entitled to qualified immunity. Dkt. 53. On March 13, 2012, Heck filed 20 objections arguing that his claims were exhausted through the prison grievance system and 21 that the defense of qualified immunity is not applicable to his claim for declaratory and 22 injunctive relief. Dkt. 54. 23 With regard to the issue of exhaustion, Heck’s objections are without merit. Heck 24 essentially reiterates his arguments that were raised in his response to Defendants’ motion to 25 dismiss. The basic argument is that, although Heck did not exhaust the grievance that names 26 the Defendants in this action, Heck did exhaust a grievance that named a different 27 individual. Compare Dkt. 45 at 2–3 with Dkt. 54 at 3–6. Whether a previous grievance was 28 ORDER – 1 1 properly exhausted is a wholly separate issue from whether the grievance that gives rise to 2 the current claim was properly exhausted. Heck admits that he did not exhaust the grievance 3 that names the Defendants in this action. Therefore, Heck’s objection to Judge Creatura’s 4 recommendation is without merit. 5 6 7 8 With regard to the qualified immunity issue, the Court need not reach this issue because Heck’s claims are unexhausted. The Court having considered the R&R, Plaintiff’s objections, and the remaining record, does hereby find and order as follows: 9 (1) The R&R is ADOPTED on the issue of exhaustion; and 10 (2) This action is DISMISSED without prejudice. 11 DATED this 5th day of April, 2012. 12 13 BENJAMIN H. SETTLE United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A ORDER – 2

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