McDaniels v. Stewart et al

Filing 40

ORDER by Judge Benjamin H. Settle ADOPTING 13 Report and Recommendation and DECLINING TO ADOPT 25 Report and Recommendations. This matter is REFERRED to Judge Christel for further consideration. **5 PAGE(S), PRINT ALL**(Peter McDaniels, Prisoner ID: 995036)(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 PETER J. MCDANIELS, 8 Plaintiff, 9 10 CASE NO. C15-5943 BHS ORDER v. BELINDA STEWART, et al., 11 Defendants. 12 13 This matter comes before the Court on the Report and Recommendations 14 (“R&Rs”) of the Honorable David W. Christel, United States Magistrate Judge (Dkts. 13, 15 25), and Plaintiff Peter McDaniels’s (“McDaniels”) objections to the R&Rs (Dkts. 22, 16 27). 17 18 I. PROCEDURAL HISTORY On December 28, 2015, McDaniels filed a motion to proceed in forma pauperis. 19 Dkt. 1. McDaniels is currently housed at Stafford Creek Corrections Center (“SCCC”) 20 and is proceeding pro se. Id. In the motion, McDaniels stated he has $27,000 from a 21 settlement, $514.64 in cash on hand, $20.00 in a checking account, and $8,000 in a 22 ORDER - 1 1 Pilgrimage Fund. Id. at 1–2. McDaniels’s prison trust account statement showed he had 2 an average spendable balance of $1,046.30. Id. at 4. 3 Based on this information, Judge Christel ordered McDaniels to show cause why 4 his motion should not be denied because it appeared McDaniels could afford to pay the 5 filing fee. Dkt. 6. Judge Christel noted that McDaniels could pay the filing fee in lieu of 6 responding to the show cause order. Id. 7 On January 25, 2016, McDaniels responded to the show cause order. Dkt. 7. 8 McDaniels informed Judge Christel that he asked his brother to pay the filing fee. Id. at 9 1. McDaniels further stated that “although he may have enough money to pay the filing 10 fee . . . he surely does not have the money to afford to prosecute this case through to full 11 execution.” Id. at 2. 12 On January 27, 2016, the full filing fee was paid and McDaniels’s civil rights 13 complaint under 42 U.S.C. § 1983 was filed. Dkts. 9, 12. McDaniels alleged violations 14 of his constitutional rights due to the inadequacy of Halal meals provided by SCCC. Dkt. 15 9. Along with his complaint, McDaniels filed a motion for a preliminary injunction. 16 Dkt. 10. McDaniels subsequently filed a motion for declaratory judgment, Dkt. 17, 17 which Judge Christel construed as a second motion for a preliminary injunction, Dkt. 25. 18 On January 29, 2016, Judge Christel issued an R&R recommending the Court 19 deny McDaniels’s motion to proceed in forma pauperis as moot because McDaniels paid 20 the filing fee. Dkt. 13. McDaniels filed objections to the R&R on February 9, 2016. 21 Dkt. 22. 22 ORDER - 2 1 On February 8, 2016, Judge Christel screened McDaniels’s complaint and found 2 several deficiencies. Dkt. 21. Judge Christel ordered McDaniels to file an amended 3 complaint or show cause by March 8, 2016. Id. 4 On February 10, 2016, Judge Christel issued a second R&R recommending the 5 Court deny McDaniels’s motions for a preliminary injunction without prejudice. Dkt. 25. 6 Judge Christel concluded that McDaniels failed to show a likelihood of success on the 7 merits or serious questions going to the merits because McDaniels had not filed an 8 amended complaint and thus there was no cognizable claim in the case. Id. at 3. 9 On February 17, 2016, McDaniels filed an amended complaint and objections to 10 the second R&R. Dkts. 27, 32. 11 II. DISCUSSION 12 McDaniels objects to Judge Christel’s recommendations with respect to his motion 13 to proceed in forma pauperis and his motions for a preliminary injunction. Dkts. 22, 27. 14 In the interest of judicial economy, the Court will address McDaniels’s objections to both 15 R&Rs in this order. 16 A. Legal Standard 17 Federal Rule of Civil Procedure 72(b) governs objections to a magistrate judge’s 18 recommended disposition. Rule 72(b) provides: 19 20 The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. 21 Fed. R. Civ. P. 72(b)(3). 22 ORDER - 3 1 B. Motion to Proceed In Forma Pauperis 2 McDaniels first objects to Judge Christel’s recommendation that his motion to 3 proceed in forma pauperis be denied as moot. Dkt. 22. McDaniels contends that “just 4 because he has $400.00 doesn’t mean he can afford the filing fee.” Id. at 2. McDaniels 5 further asserts that he is nearly broke and cannot afford to litigate this case without the 6 benefit of 28 U.S.C. § 1915. Dkt. 22 at 3. 7 After reviewing McDaniels’s objections, the Court agrees with Judge Christel that 8 McDaniels’s motion to proceed in forma pauperis is moot because McDaniels has paid 9 the full filing fee. See Price v. Bjelland, 370 Fed. App’x 838, 840 (9th Cir. 2010); 10 Lipscomb v. Madigan, 221 F.2d 798 (9th Cir. 1955) (per curiam). The Court therefore 11 adopts the first R&R (Dkt. 13). To the extent McDaniels is unable to pay additional fees 12 during the course of this litigation, nothing in this order precludes McDaniels from asking 13 the Court to waive those fees. 14 C. Motions for Preliminary Injunction 15 Next, McDaniels objects to Judge Christel’s recommendation that his motions for 16 a preliminary injunction be denied without prejudice. Dkt. 27. McDaniels asserts he has 17 filed an amended complaint. Id. 18 When the second R&R was issued, McDaniels had not yet filed an amended 19 complaint. See Dkt. 25 at 3. As a result, Judge Christel concluded there was no 20 cognizable claim in the case and injunctive relief should be denied. Id. Because 21 McDaniels has now filed an amended complaint, the Court declines to adopt the second 22 R&R (Dkt. 25) and re-refers the matter to Judge Christel for further consideration. ORDER - 4 1 2 III. ORDER Therefore, the Court having considered the R&Rs, McDaniels’s objections, and 3 the remaining record, does hereby find and order: 4 (1) The R&R on McDaniels’s motion to proceed in forma pauperis (Dkt. 13) is 5 ADOPTED; and 6 (2) The R&R on McDaniels’s motions for a preliminary injunction (Dkt. 25) is 7 DECLINED. This matter is RE-REFERRED to Judge Christel for further 8 consideration. 9 Dated this 22nd day of March, 2016. A 10 11 BENJAMIN H. SETTLE United States District Judge 12 13 14 15 16 17 18 19 20 21 22 ORDER - 5

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