Theurich v. Kitsap County et al

Filing 30

ORDER adopting Report and Recommendation re 23 and 27 . Signed by Judge Robert J. Bryan.(JL)

1
2
3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

4
5

MICHAEL THEURICH, individually,
6
7
8
9
10
11
12

Plaintiff,
v.
No. C15-5097 RJB
KITSAP COUNTY, a Municipal
Corporation organized under the laws of
the State of Washington, and CONMED,
Inc., a Foreign Corporation doing
business in Kitsap, County, Washington,
and BARBARA MULL, BRUCE
KALER, M.D., OFFICER RT #1146,
ARLEN JOHNSON, and C. MCCARTY,

ORDER ADOPTING REPORT AND
RECOMMENDATION

13
Defendants.
14
15

This matter comes before the Court on the Report and recommendation of U.S.

16

Magistrate Judge J. Richard Creatura.

17

Recommendation, and objections (Dkt. 27), and the remaining record.

18
19
20

Dkt. 23.

The Court has reviewed the Report and

Plaintiff brings this civil rights case pursuant to 42 U.S.C. §1983 alleging that Defendants
violated his Eighth Amendment rights while he was in custody at the Kitsap County, Washington
jail. Dkt. 1. Defendant Officer RT #1146 moved for dismissal based on insufficient service of

21
22
23

process under Fed. R. Civ. 12 (b)(5) and for failure to state a claim under Fed. R. Civ. P. 12
(b)(6). Dkt. 18. Plaintiff responded (Dkt. 20), Defendant Officer RT #1146 replied (Dkt. 21),

24

and on July 23, 2015, the Report and Recommendation (Dkt. 23) was filed. The facts are in that

25

Report and Recommendation (Dkt. 23, at 1-4) and are adopted here.

26
ORDER - 1

1

The Report and Recommendation recommends denying both motions without prejudice.

2

Dkt. 23. It urges allowing time for Plaintiff to conduct discovery to determine the identity of

3

Defendant Officer RT #1146. Dkt. 23. It recommends the Court deny the motion for failure to

4

state a claim against Officer RT #1146 because Plaintiff’s Complaint alleges sufficient facts to

5
state a claim. Id. Defendant Officer RT #1146 files objections, raising the same arguments
6
7

made in support of the motion. Dkt. 27.

8

The Report and Recommendation (Dkt. 27) should be adopted, and for the reasons

9

provided therein, the Defendant Officer RT #1146’s motion to dismiss (Dkt. 18) should be

10

denied without prejudice as premature. The Report and Recommendation sufficiently addresses

11

the issues raised in the objections.

12

This case should be re-referred to Magistrate Judge J. Richard Creatura for further

13
proceedings.
14
15

IT IS ORDERED:

16

1.

The Report and Recommendation (Dkt. 23) is ADOPTED.

17

2.

Defendant Officer RT #1146’s motion to dismiss (Dkt. 18) is DENIED
WITHOUT PREJUDICE.

3.

This case is RE-REFERRED to Magistrate Judge J. Richard Creatura for further
proceedings.

4.

The Clerk is directed to send copies of this Order to all counsel of record
and to the Hon. J. Richard Creatura.

18
19
20
21
22

DATED this 17th day of August, 2015.

23

A

24
25

ROBERT J. BRYAN
United States District Judge

26
ORDER - 2