Johnson v. Morgan et al

Filing 105

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 98 Objections to Report and Recommendation, filed by Robert Earle Johnson. **3 PAGE(S), PRINT ALL**(Robert Johnson, Prisoner ID: 126696)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ROBERT EARLE JOHNSON,
Plaintiff,

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v.

CASE NO. C16-5738 BHS-TLF
ORDER ADOPTING REPORT
AND RECOMMENDATION

RICHARD MORGAN, 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 Theresa L. Fricke, United States Magistrate Judge (Dkt. 95), Defendant

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Forrest Mewes’s (“Mewes”) objection to the R&R (Dkt. 97), and Plaintiff Robert Earle

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Johnson’s (“Johnson”) objections to the R&R (Dkt. 98).

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On June 6, 2018, Judge Fricke issued the R&R recommending that the Court grant

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Defendants G. Steven Hammond, Mewes, Richard Morgan, John Reidy, and Bernard

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Warner’s (“Defendants”) motion for summary judgment on Johnson’s medical care

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claims and defer ruling on Johnson’s retaliation claim against Mewes. Dkt. 95. Judge

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Fricke also found that Johnson alleged an excessive force claim and Mewes did not

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address this claim in his motion for summary judgment. Id. On June 20, 2018, Mewes

ORDER - 1

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objected arguing that Jones did not adequately plead an excessive force claim and, even if

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he did, Mewes is entitled to summary judgment on that claim. Dkt. 97. On June 21,

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2018, Johnson filed objections regarding the dismissal of his medical claims. Dkt. 98.

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On July 2, 2018, Defendants responded. Dkt. 102. On July 12, 2018, Johnson replied.

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Dkt. 103.

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The district judge must determine de novo any part of the magistrate judge’s

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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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In this case, neither party identifies an error in the R&R. First, the Court agrees

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with Judge Fricke that the complaint should be construed liberally and, under such a

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construction, Johnson asserts an excessive force claim. Regarding the merits of

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Johnson’s claim and whether Mewes is entitled to qualified immunity, Judge Fricke

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should decide these issues first based on a fully briefed motion. Therefore, the Court

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adopts the R&R on this issue.

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Second, Johnson asserts that Judge Fricke erred in granting Defendants’ motion on

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his claims for inadequate medical care. Judge Fricke found, and the Court agrees, that (1)

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Johnson’s claim based on his knee is at most a difference of opinion regarding the proper

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medical treatment and (2) Johnson fails to establish that his cataract qualifies as a serious

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medical need. Therefore, the Court having considered the R&R, the parties’ objections,

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and the remaining record, does hereby find and order as follows:

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(1)

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The R&R is ADOPTED;

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(2)

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Defendants’ motion for summary judgment on Johnson’s medical claims is
GRANTED;

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(3)

Defendants Hammond, Morgan, Reidy, and Warner are dismissed;

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(4)

Defendants’ motion for summary judgment on Johnson’s excessive force

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and retaliation claims against Mewes is DENIED; and

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(5)

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Dated this 27th day of August, 2018.

The matter is referred to Judge Fricke for further proceedings.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3