Lloyd v. Rufener et al

Filing 101

ORDER ADOPTING 95 REPORT AND RECOMMENDATION re 96 Objections, signed by Judge Benjamin H. Settle. Defendants' 92 Motion to Dismiss is Denied. (GMR- cc: pltf)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C17-5627 BHS-TLF

LARRY LLOYD,
Plaintiff,

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v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

MARK RUFENER, 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, and

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Defendants Sgt. Fitzpatrick and C\O Lewis’s (“Defendants”) objections to the R&R, Dkt.

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96.

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On June 13, 2019, Defendants filed a motion to dismiss arguing that dismissal is

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warranted under Federal Rule of Procedure 41(b) because Plaintiff failed to timely

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comply with the Court’s order granting him leave to file an amended complaint. Dkt. 92.

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On July 30, 2019, Judge Fricke issued the R&R recommending that the Court deny

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Defendants’ motion to dismiss because Plaintiff substantially complied with the Court’s

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ORDER - 1

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order. Dkt. 95. On August 8, 2019, Defendants filed objections to the R&R on the basis

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that Plaintiff’s second amended complaint fails to state a claim. Dkt. 96.

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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, the Court concludes that Defendants have failed to properly object to

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the R&R. Instead, they cloak a motion to dismiss for failure to state a claim as objections

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to an R&R recommending that the Court deny Defendants’ motion to dismiss for failure

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to follow a Court order. The Court declines to conduct an initial review of the merits of

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Plaintiff’s complaint. Therefore, the Court having considered the R&R, Defendants’

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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)

Defendants’ Motion to Dismiss, Dkt. 92, is DENIED.

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Dated this 7th day of October, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 2