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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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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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.

A

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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.

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