Carroll v. Stewart et al

Filing 100

ORDER by Judge Benjamin H. Settle. The motion to extend (Dkt. 98) is GRANTED; The Court's previous order (Dkt. 96) is VACATED; (3) The R&R (Dkt. 94) is ADOPTED; and Defendants motion for summary judgment (Dkt. 80) is GRANTED. (MET) cc: plaintiff

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MICHAEL CARROLL,
Plaintiff,

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v.

CASE NO. C15-5170 BHS
ORDER ADOPTING REPORT
AND RECOMMENDATION

KELSEY STEWART, et al.,

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Defendants.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 94), and

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Plaintiff’s objections to the R&R (Dkt. 97). Also before the Court is Plaintiff’s motion for

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an extension to file his objections. Dkt. 98.

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On March 16, 2015, Plaintiff filed an application to proceed in forma pauperis and

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a proposed civil rights complaint. Dkt. 1. On March 25, 2015, the Court directed service

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of plaintiff’s complaint. Dkts. 5, 6. On August 31, 2015, Plaintiff filed an amended

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complaint. Dkt. 31. On September 14, 2015, Defendant Kelsey filed an answer to

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Plaintiff’s amended complaint. Dkt. 33. On November 20, 2015, Defendants Chamberlin,

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Theissen, and Westberg answered Plaintiff’s amended complaint. Dkt. 44. On January

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26, 2016, Defendants Jackson and Mitchell answered Plaintiff’s amended complaint. Dkt.

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51.

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On October 20, 2016, Defendants moved for summary judgment. Dkt. 80. On

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November 30, 2016, Plaintiff responded. Dkt. 84. On December 7, 2016, Defendants

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replied. Dkt. 85. On December 13, 2017, Plaintiff filed a surreply. Dkt. 86. On January 4,

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2017, Judge Creatura requested additional briefing. Dkt. 87. On January 20, 2017,

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Defendants filed a supplemental brief. Dkt. 90. On February 9, 2017, Plaintiff filed a

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supplemental brief. Dkt. 90. On February 24, 2017, Plaintiff filed a motion to appoint

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counsel. Dkt. 91. On March 3, 2017, Defendants responded. Dkt. 93.

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On March 9, 2017, Judge Creatura issued the R&R recommending that the motion

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for summary judgment be granted. Dkt. 94. On March 22, 2017, Judge Creatura denied

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the motion to appoint counsel and noted the R&R on the Court’s calendar for April 14,

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2017. Dkt. 95. On April 18, 2017, having received no objections, the Court entered an

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order adopting the R&R. Dkt. 96. Later that same day, Plaintiff filed his objections to the

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R&R with an accompanying motion to extend the deadline for his objections. Dkts. 97,

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98.

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The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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First, the Court addresses Plaintiff’s motion for an extension. Plaintiff has

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described good cause for his failure to timely file objections. Plaintiff’s objections were

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due by April 14, 2018. See Dkt. 95. On April 12, 2017, the prison in which Plaintiff is

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incarcerated went on “lockdown” and as a result, April 18 was the first day that Plaintiff

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could file his objections. Dkt. 98 at 2, 4. Having found good cause for Plaintiff’s delay,

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the motion to extend the deadline for objections is granted and the Court vacates its

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previous order adopting the R&R without consideration of Plaintiff’s objections.

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In his objections Plaintiff argues that Judge Creatura wrongfully declined to

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consider his due process claims based on Heck v. Humphrey, 512 U.S. 477, 483-87

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(1994). Dkt. 97 at 5 (citing Dkt. 94 at 13 n.3). However, this statement does not

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accurately reflect the R&R. Rather, Judge Creatura did address Plaintiff’s due process

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claims, stating that his R&R would not address the seemingly apparent bar under Heck

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because the Defendants failed to raise such an argument. Dkt. 94 at 13 n.3.

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Other than this, Plaintiff does not object to any particular aspect of the R&R.

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Instead, Plaintiff simply reargues his due process claims in the same way that they were

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presented to Judge Creatura. See Dkt. 84 at 1–42; Dkt. 97. The Court agrees with Judge

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Creatura’s analysis. The majority of Plaintiff’s claims are time-barred. To the extent they

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are not, Plaintiff either (1) offers only conclusory statements devoid of specific facts that

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would entitle him to relief against particular named defendants, see Dkt. 94 at 14–15, or

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(2) “the evidence in the record shows that [his] arrest, detention, and tolling of his

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supervision were consistent with state and federal law and did not violate his due process

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rights.” Dkt. 94 at 18.

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The Court having considered the R&R, Plaintiff’s objections, and the remaining
record, does hereby find and order as follows:

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(1)

The motion to extend (Dkt. 98) is GRANTED;

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(2)

The Court’s previous order (Dkt. 96) is VACATED;

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(3)

The R&R (Dkt. 94) is ADOPTED; and

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(4)

Defendants’ motion for summary judgment (Dkt. 80) is GRANTED; and

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(5)

The Clerk shall enter judgment for Defendants and close this case.

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Dated this 3rd day of May, 2017.

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A

BENJAMIN H. SETTLE
United States District Judge

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ORDER - 4