Stockmyer v. Fetroe et al

Filing 51

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 46 Objections to Report and Recommendation filed by Clifford Johnson, Sergeant Doe, D Fetroe. **3 PAGE(S), PRINT ALL**(Donald Stockmyer, Prisoner ID: 217862)(TG)

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1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 3 4 DONALD STOCKMYER, 5 6 7 Plaintiff, v. D. FETROE, et al., CASE NO. C16-5614 BHS ORDER ADOPTING IN PART AND DECLINING IN PART REPORT AND RECOMMENDATION Defendants. 8 9 10 11 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 Theresa L. Fricke, United States Magistrate Judge (Dkt. 43), the objections of Defendants Fetroe, Johnson, and Klauk (“Defendants”) to the R&R (Dkt. 46), and Plaintiff’s objections to the R&R (Dkts. 49, 50). The background of this case is set out in full by the R&R. Dkt. 43 at 2–13. On August 24, 2017, Judge Fricke entered an R&R recommending that summary judgment be granted in favor of Defendants. Dkt. 43. On September 1, 2017, Defendants filed their objections. Dkt. 46. On October 4 and 5, 2017, the Court received letters from Plaintiff objecting to the R&R. Dkts. 49, 50. 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. Fed. R. Civ. P. 72(b)(3). ORDER - 1 1 Defendants request that the Court consider newly submitted evidence that was 2 cited in their initial motion for summary judgment but inadvertently omitted from the 3 supporting exhibits. Dkt. 46 at 3. In support of their request, Defendants have submitted 4 the previously omitted excerpts from a deposition of Plaintiff wherein he admits that he 5 did not file any administrative grievances regarding (1) an alleged assault by a fellow 6 inmate while he was being transported or (2) the Clallam Bay Correction Center’s failure 7 to provide him with a second mattress. 1 Dkt. 47-1 at 3–7. In light of the submitted 8 evidence, it is clear that Plaintiff did not exhaust his administrative remedies before 9 initiating his present claims based on these allegations. Accordingly, Defendants’ motion 10 for summary judgment on these claims based on Plaintiff’s failure to exhaust should be 11 granted—although doing so seems unnecessary, as the R&R has already recommended 12 that these claims be dismissed on other grounds. 13 Additionally, Defendants note that the R&R appears to conclude that all of 14 Plaintiff’s claims should be dismissed with prejudice. Dkt. 46 at 3–4. See also Dkt. 43 at 15 28. However, the exclusive basis for dismissing several of Plaintiff’s claims is his failure 16 to exhaust administrative remedies. As noted in the R&R, “[i]f a prisoner has failed to 17 exhaust his administrative remedies, dismissal without prejudice is appropriate.” Dkt. 43 18 at 17 (citing Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), overruled on other 19 grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014)). Therefore, to the extent that 20 21 1 22 Judge Fricke has nonetheless recommended this claim be dismissed as untimely in light of the applicable statute of limitations. Dkt. 43 at 18. ORDER - 2 1 Plaintiff’s claims are dismissed based on his failure to exhaust administrative remedies, 2 dismissal should be without prejudice. 3 Finally, the Court notes that Plaintiff has submitted two letters objecting to the 4 R&R. Dkts. 49, 50. However, in these letters, Plaintiff merely restates his arguments in 5 opposition to summary judgment without assigning any error or deficiency to the R&R’s 6 analysis. See Dkt. 50. The Court agrees with the analysis in the R&R and therefore adopts 7 it. 8 9 The Court having considered the R&R, the parties’ objections, and the remaining record, does hereby find and order as follows: 10 (1) 11 described above; 12 (2) 13 14 The R&R (Dkt. 43) is ADOPTED in part and DECLINED in part as The motion for summary judgment of Defendants Fetroe, Johnson, and Klauk (Dkt. 31) is GRANTED; and (3) To the extent that any of Plaintiff’s claims are dismissed solely on the basis 15 of his failure to exhaust administrative remedies, those claims are DISMISSED without 16 prejudice. 17 18 19 Because there are no issues outstanding upon the Court’s adoption of the R&R, the clerk shall enter judgment in favor of Defendants and close this case. Dated this 10th day of October, 2017. 20 21 A BENJAMIN H. SETTLE United States District Judge 22 ORDER - 3

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