Nelson v. US Federal Marshal's Service et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 48 Objections to Report and Recommendation filed by Patrick W Nelson. (TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 PATRICK W. NELSON, et al., Plaintiffs, 9 10 v. CASE NO. C16-5680 BHS-JRC ORDER ADOPTING REPORT AND RECOMMENDATION NICHOLAS WEBER, et al., 11 Defendants. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 46), and 15 Plaintiffs’ objections to the R&R (Dkt. 48). 16 The procedural and factual background of this case is set forth in the R&R. Dkt. 17 46 at 2–3. Judge Creatura issued the R&R on May 19, 2017. Dkt. 46. On June 2, 2017, 18 Plaintiffs filed objections. Dkt. 48. On June 23, 2017, Defendants responded to the 19 objections. Dkt. 50 20 21 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 22 ORDER - 1 1 modify the recommended disposition; receive further evidence; or return the matter to the 2 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 3 Plaintiffs argue that the R&R improperly characterizes their argument that the 4 defendants may be liable under 42 U.S.C. § 1983 pursuant to the liability provisions of 5 the memorandum of understanding (“MOU”) between the United States Marshall’s 6 Service and the Washington State Department of Corrections. However, while Plaintiffs’ 7 argument aptly addresses the Department of Corrections’ potential liability to compensate 8 damages arising from the actions of its employees assigned to the Pacific Northwest 9 Violent Offender Task Force, the Court is not convinced that the liability provisions of 10 the MOU create a genuine issue of fact regarding whether the Defendants were acting 11 under the “color of state law.” 12 As the R&R indicates, even viewing the evidence in the light most favorable to 13 Plaintiffs, the record plainly establishes that the Defendants were acting in their capacity 14 as special deputies clothed in the power and authority of the United States Marshall’s 15 Service when they arrested Plaintiffs. See Dkt. 46 at 7–8. This is true whether or not the 16 Department of Corrections was contractually obligated to compensate any tort liabilities 17 of the Defendants pursuant to the MOU. Accordingly, the Court adopts the R&R’s 18 conclusion that Plaintiffs’ claims must be reframed under Bivens v. Six Unknown Named 19 Agents, 403 U.S. 388 (1971), because the alleged actions giving rise to the claims were 20 committed while Defendants were acting as federal agents—not while they were acting 21 “in the name and for [Washington] State . . . clothed with the State’s power.” See Screws 22 v. United States, 325 U.S. 91, 110 (1945) (quotation and citation omitted). See also Dkt. ORDER - 2 1 46 at 6–7 (collecting cases). The Court does not see how this will prejudice Plaintiffs in 2 their constitutional claims, as the Court will grant them leave to file an amended 3 complaint and “[a]ctions under § 1983 and those under Bivens are identical save for the 4 replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. 5 Lawn, 940 F.2d 406, 409 (9th Cir. 1991). 6 7 Therefore, the Court having considered the R&R, Plaintiffs’ objections, and the remaining record, does hereby find and order as follows: 8 (1) The R&R is ADOPTED; and 9 (2) Plaintiffs’ 42 U.S.C. §§ 1983, 1985, and state law battery claims are 10 11 DISMISSED; (3) Plaintiffs are GRANTED leave to amend their complaint to bring claims 12 under Bivens, including claims based on conspiracy between the Defendants to deprive 13 Plaintiffs of their constitutional rights, to be filed no later than August 4, 2017; 1 and 14 (4) 15 Dated this 17th day of July, 2017. This case shall be re-referred to Judge Creatura for further proceedings. A 16 17 BENJAMIN H. SETTLE United States District Judge 18 19 20 21 22 1 Failure to file a timely amended complaint in accordance with this Order can constitute a failure to diligently prosecute the claims and may result in dismissal with prejudice. ORDER - 3

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