Johnson v. Morgan et al

Filing 154

ORDER ADOPTING 149 REPORT AND RECOMMENDATION, signed by Judge Benjamin H. Settle. Mewes's motion 121 for summary judgment is DENIED; The parties shall meet and confer regarding a trial schedule and submit a joint status report no later than August 1, 2019; and Johnson may file a motion or declaration seeking the appointment of counsel. **3 PAGE(S), PRINT ALL** (Robert Johnson, Prisoner ID: 126696) (ERA) Modified on 7/11/2019 to change file date (KB).

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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
ORDER ADOPTING REPORT
AND RECOMMENDATION

RICHARD L. 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. 149, Plaintiff

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Robert Earle Johnson’s (“Johnson”) objections to the R&R, Dkt. 150, and Defendant

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Forrest Mewes’s (“Mewes”) objections to the R&R, Dkt. 151.

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On May 15, 2019, Judge Fricke issued the R&R recommending that the Court

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deny Mewes’s motion for summary judgment on Johnson’s excessive force claim

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because questions of fact remain for trial. Dkt. 149. On May 26, 2019, Johnson filed

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objections. Dkt. 150. On May 29, 2019, Mewes filed objections. Dkt. 151.

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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

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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In this case, both parties filed objections to the R&R. Johnson objects to the R&R

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seeking clarification of facts regarding whether Mewes only sprayed Johnson with pepper

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spray or also sprayed two inmates that were allegedly fighting near Johnson. Dkt. 150.

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The resolution of this factual dispute is unnecessary to the underlying merits of Mewes’s

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summary judgment motion. Johnson will have the opportunity to present all of the facts

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in the subsequent trial.

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Mewes objects to the R&R on the basis that Johnson does not allege a personal

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excessive force claim and only alleges excessive force as an innocent bystander. Dkt.

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151. The Court has already rejected this limited construction of Johnson’s complaint,

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Dkt. 105, and considers Mewes’s objection preserved for appeal. Aside from this

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objection, Mewes does not object to the substantive merits of the R&R regarding

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Johnson’s excessive force claim.

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Finally, the parties shall meet and confer regarding a proposed pretrial and trial

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schedule. Although the Court denied Johnson’s motion to appoint counsel, that denial

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was at an early stage of the proceedings. At the trial preparation stage, additional

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complications arise that weigh in favor of the appointment of counsel. Johnson may

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inform the Court whether he would like the Court to contact the Court’s pro bono panel

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of civil rights attorneys or other attorneys within the community to provide assistance for

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trial preparation and trial.

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ORDER - 2

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Therefore, the Court having considered the R&R, the parties’ objections, and the
remaining record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

Mewes’s motion for summary judgment, Dkt. 121, is DENIED;

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(3)

The parties shall meet and confer regarding a trial schedule and submit a

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joint status report no later than August 1, 2019; and
(4)

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Johnson may file a motion or declaration seeking the appointment of
counsel.

Dated this 10th day of July, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3