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