Lloyd v. Rufener et al

Filing 91

ORDER ADOPTING 82 REPORT AND RECOMMENDATION re Objections (Dkts. 83 , 84 ) signed by Judge Benjamin H. Settle. Defendants' motion to dismiss is GRANTED; and Lloyd may file an amended complaint as set forth in the R&R. (GMR- cc: plaintiff)

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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. 82, Defendants

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Fitzwater and Lewis’s (“Defendants”) objections to the R&R, Dkt. 83, and Plaintiff Larry

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Lloyd’s (“Lloyd”) objections to the R&R, Dkt. 84.

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On January 9, 2019, Judge Fricke issued the R&R recommending that the Court

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deny Lloyd’s motion for a preliminary injunction and grant Defendants’ motion to

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dismiss. Dkt. 82. Judge Fricke recommended that some claims be dismissed with

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prejudice and that some claims be dismissed without prejudice and with leave to amend.

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Id. On January 23, 2019, Defendants filed objections. Dkt. 83. On January 28, 2019,

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Lloyd filed objections. Dkt. 84. On January 29, 2019, Lloyd responded to Defendants’

ORDER - 1

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objections. Dkt. 85. On February 1, 2019, Defendants responded to Lloyd’s objections.

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Dkt. 86. On February 13, 2019, Lloyd replied to Defendants’ response. Dkt. 88.

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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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1.

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Defendants object to the portion of the R&R recommending that Lloyd be allowed

Defendants’ Objections

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leave to amend his medical indifference claims against them. Defendants concede that,

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in order to prevail on this argument, they must show that “it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.” Dkt. 83 at 3 (citing

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Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007)). The Court finds that

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Defendants have failed to establish the absolute clarity of Lloyd’s failed claim. At most,

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Defendants establish a strong argument that Lloyd’s claim may not survive a motion to

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dismiss, which does not rise to the level necessary to deny Lloyd leave to amend.

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Therefore, the Court adopts the R&R on this issue.

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2.

Lloyd’s Objections

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Lloyd objects to the R&R’s recommendations that the Court dismiss Lloyd’s

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Fourteenth Amendment due process claim and First and Fourteenth Amendment access

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to the courts claim with prejudice. Dkt. 84. First, Lloyd argues that he has stated a valid

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due process claim based on Defendants’ failure to accept or process his grievances. Id. at

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3–9. Contrary to Lloyd’s position, the law is clearly established that there is no

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constitutional right to a grievance system. See Mann v. Adams, 855 F.2d 639, 640 (9th

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Cir. 1988); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Thus, Lloyd’s

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argument is without merit.

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Lloyd also argues that he was a pretrial detainee instead of a prisoner, which

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affords him more protections. Dkt. 84 at 7. Lloyd, however, improperly seeks to extend

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the law applicable to medical claims under the Eighth and Fourteenth Amendments. See

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Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1189 (9th Cir. 2002), overruled on other

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grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (“It is quite

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possible, therefore, that the protections provided pretrial detainees by the Fourteenth

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Amendment in some instances exceed those provided convicted prisoners by the Eighth

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Amendment.”). Thus, the Court adopts the R&R on the dismissal of Lloyd’s Fourteenth

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Amendment due process claim.

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Second, Lloyd objects to the R&R’s recommendation that the Court dismiss his

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First and Fourteenth Amendment access to the courts claim. Dkt. 84 at 10–16. The

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problem with Lloyd’s argument is that he conflates the allegations of failure to accept a

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grievance with retaliation for filing a grievance. A claim based on the former requires an

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actual injury, Lewis v. Casey, 518 U.S. 343, 346 (1996), whereas a claim based on

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retaliation requires allegations establishing that the government actor’s actions chilled the

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inmate’s exercise of his rights, Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.

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2005). In this case, Lloyd alleges only that Defendants’ failure to accept his claim

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prevented him from exhausting his claim. Judge Fricke concluded that this is not an

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actual injury sufficient to state a claim because Lloyd may overcome the exhaustion

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requirement by establishing that Defendants interfered with his attempt to exhaust. Dkt.

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82 at 10–11. Thus, Lloyd has failed to allege an actual injury. The Court agrees with this

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analysis and adopts the R&R on this issue.

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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)

Defendants’ motion to dismiss is GRANTED; and

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(3)

Lloyd may file an amended complaint as set forth in the R&R.

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Dated this 7th day of May, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 4