Moseley v. Department of Social and Health Services et al

Filing 83

ORDER ADOPTING 82 REPORT AND RECOMMENDATION signed by Judge Benjamin H. Settle. Defendants' 65 MOTION for Judgment on the Pleadings is denied in part and granted in part. Plaintiff is allowed leave to amend complaint by June 15, 2020. This matter is re-referred to Magistrate Judge Creatura for further proceedings. (GMR)

Case 3:17-cv-05427-BHS-JRC Document 83 Filed 05/14/20 Page 1 of 3

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7
8

JAMES DALE MOSELEY,
Plaintiff,

9
10

v.

CASE NO. C17-05427 BHS JRC
ORDER ADOPTING REPORT
AND RECOMMENDATION

DSHS, 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. 10. Having

15

considered the R&R and the remaining record, and no objections having been filed, the

16

court adopts the R&R with one clarification.

17

The R&R finds that plaintiff’s claims under 42 U.S.C. §1983 fail against

18

defendants in their official capacities and against defendant DSHS and recommends

19

dismissal without leave to amend. Dkt. 82 at 27. The Court agrees, but excepts from the

20

dismissal with prejudice plaintiff’s claims under the Americans with Disabilities Act

21

(“ADA”) and the Rehabilitation Act (“RA”); if properly alleged in an amended

22

ORDER - 1

Case 3:17-cv-05427-BHS-JRC Document 83 Filed 05/14/20 Page 2 of 3

1

complaint, such claims may be brought against DSHS and against defendants in their

2

official capacities.

3

Therefore, the Court does hereby find and order as follows:

4

(1)

The R&R is ADOPTED;

5

(2)

Defendants’ motion for judgment on the pleadings is DENIED as to the

6

following: plaintiff’s First Amendment retaliation claim against defendant

7

Smith; plaintiff’s excessive force claim against defendant Smith;

8

defendants’ assertion of qualified immunity; and

9

(3)

Defendants’ motion for judgment on the pleadings is GRANTED, but

10

plaintiff is allowed leave to amend his complaint as to the following claims:

11

use of force claim against defendants Grimm and Quintanella; retaliation

12

claim related to placement in segregation and denial of recreation time and

13

against defendants Grimm and Quintanella; decontamination claim against

14

defendants Grimm and Smith; inadequate mental health treatment claim

15

against defendants Harris, Coryell, and Rockwell; due process claim based

16

on placement in segregation; equal protection claim; unreasonable search

17

and deprivation of property claims; access to courts claim; claim(s) against

18

defendant Davos; and ADA and RA claims against DSHS and defendants

19

in their official capacities;

20

(4)

Plaintiff’s amended complaint is to be filed by June 15, 2020;

21

(5)

Defendants’ motion for judgment on the pleadings is GRANTED without

22

leave to amend as to the following claims: claims barred under the Heck

ORDER - 2

Case 3:17-cv-05427-BHS-JRC Document 83 Filed 05/14/20 Page 3 of 3

1

doctrine; Fifth Amendment takings claim; supervisory liability claims

2

against defendants Coryell, Harris, and Strong; official capacity claims

3

against all individual defendants and DSHS except for ADA and RA

4

claims; claims for injunctive relief; and

5

(6)

6
7

This matter is re-referred to Magistrate Judge Creatura for further
proceedings.

Dated this 14th day of May, 2020.

A

8
9

BENJAMIN H. SETTLE
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22

ORDER - 3