Harris v. Pierce County Jail Classification and Administration Office et al

Filing 114

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 112 Objections to Report and Recommendation filed by C James. **3 PAGE(S), PRINT ALL**(Ray Harris, Prisoner ID: 271486)(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 RAY CHARLES HARRIS, Plaintiff, 9 10 11 v. CASE NO. C16-5044 BHS-DWC ORDER ADOPTING REPORT AND RECOMMENDATION PIERCE COUNTY JAIL CLASSIFICATION AND ADMINISTRATION OFFICE, et al., Defendants. 12 13 14 15 16 17 18 19 20 21 22 This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 110), and Defendant James’s objections to the R&R (Dkt. 112). On May 16, 2017, Plaintiff filed his fourth amended complaint. Dkt. 96. On June 5, 2017, pursuant to 28 U.S.C. § 1915A, Judge Christel recommended the dismissal of Plaintiff’s claims against all defendants except Defendant James. Dkt. 98. On July 12, 2017, the Court adopted Judge Christel’s recommendation. Dkt. 101. On August 2, 2017, Defendant James moved to dismiss Plaintiff’s remaining claims. Dkt. 104. On September 21, 2017, Judge Christel entered the R&R wherein he ORDER - 1 1 recommended the dismissal of all claims against Defendant James except a § 1983 claim 2 predicated on an alleged violation of the First Amendment. Dkt. 110. On October 5, 3 2017, Defendant James objected to the R&R. Dkt. 112. On October 17, 2017, Plaintiff 4 responded to the objections. Dkt. 113. 5 The district judge must determine de novo any part of the magistrate judge’s 6 disposition that has been properly objected to. The district judge may accept, reject, or 7 modify the recommended disposition; receive further evidence; or return the matter to the 8 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 9 Defendant James objects to the R&R on the basis that the fourth amended 10 complaint does not expressly assert that Defendant James violated the First Amendment. 11 Dkt. 112. Indeed, in the claims section of the fourth amended complaint, Plaintiff states 12 only that the allegations “against Defendant Corey and Defendant [sic] Corey, 13 Kawamura, and Duillian . . . constitutes [sic] a violation of the Plaintiff’s First 14 Amendment rights of the United States Constitution.” Dkt. 96 at 10. Therefore, strictly 15 construing the claims section, it would be appropriate to conclude that Plaintiff does not 16 assert a First Amendment violation against Defendant James. 17 However, the Court is required to liberally construe Plaintiff’s complaint. 18 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (“[P]ro se pleadings 19 are liberally construed, particularly where civil rights claims are involved.”). See also 20 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[A] pro se complaint, however inartfully 21 pleaded, must be held to less stringent standards than formal pleadings drafted by 22 lawyers.”); Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). ORDER - 2 1 Doing so, it is clear that Plaintiff’s complaint asserts a § 1983 claim against Defendant 2 James for allegedly retaliating against him in light of his previous grievances. Dkt. 96 at 3 7–8. While Plaintiff’s complaint fails to expressly reference the First Amendment when 4 complaining of Defendant James’s alleged retaliation, it is sufficient that Plaintiff has 5 alleged retaliation by Defendant James while also claiming that his First Amendment 6 rights were violated. 7 Defendant James also points out that, in reaching its conclusion that Plaintiff’s 8 First Amendment claim should not be dismissed, the R&R relies on an order that was 9 predicated on a now inoperative complaint. While the former complaint addressed in the 10 previous order is now inoperative, it was predicated on factual allegations that are 11 similarly present in the operative fourth amended complaint. See Dkt. 98 at 8–9; Dkt. 96 12 at 7–8. Accordingly, the same reasoning that applied in the Court’s previous order applies 13 to the allegations of the now operative fourth amended complaint. 14 15 Accordingly, having considered Defendant James’s objections and the remaining record, the R&R (Dkt. 110) is ADOPTED. 16 IT IS SO ORDERED. 17 Dated this 9th day of November, 2017. A 18 19 BENJAMIN H. SETTLE United States District Judge 20 21 22 ORDER - 3

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