Carpenter v. Washington State Department of Corrections

Filing 5

ORDER ADOPTING 3 REPORT AND RECOMMENDATION by U.S. District Judge David G. Estudillo. Plaintiff's motion to proceed in forma pauperis is STRICKEN as moot. Case is hereby DISMISSED without prejudice. (ZMG cc: Judge Peterson, Pltf)

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Case 3:21-cv-05823-DGE Document 5 Filed 01/10/22 Page 1 of 4 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DANIEL LEE CARPENTER, v. Plaintiff, CASE NO. 3:21-cv-05823-DGE ORDER ADOPTING REPORT AND RECOMMENDATION WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Defendant. On November 8, 2021, Plaintiff, proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that he had property stored at the Monroe Correctional Complex (“MCC”) that was improperly disposed of, lost, or stolen. (Dkt. No. 1-2 at 1-2.) The property in question included clothing, personal effects, legal documents, and items of a sentimental nature, including family letters and photographs. (Id.) Plaintiff alleges the value of this property totaled $1,538.55. (Id.) Plaintiff filed grievances with MCC regarding the lost property and his complaints were substantiated. (Id. at 3-4.) Plaintiff alleges he then filed a tort claim and was offered a settlement of $46.55. (Id. at 5.) 24 ORDER ADOPTING REPORT AND RECOMMENDATION - 1 Case 3:21-cv-05823-DGE Document 5 Filed 01/10/22 Page 2 of 4 1 On November 18, 2021, United States Magistrate Judge Michelle Peterson issued a report 2 and recommendation (“R&R”) recommending that Plaintiff’s complaint be dismissed prior to 3 service pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief may be 4 granted and that Plaintiff’s motion to proceed in forma pauperis (“IFP”) be stricken as moot. 5 (Dkt. No. 3.) Judge Peterson found that where a state employee’s random, unauthorized act 6 deprives an individual of property, either negligently or intentionally, the individual is relegated 7 to his state post-deprivation process, so long as the state provides an adequate post-deprivation 8 remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 540-41 9 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). (Id. at 3-4.) 10 Judge Peterson found that Washington State provides a post-deprivation remedy for the 11 alleged tortious conduct of state employees under RCW 4.92, and that Plaintiff availed himself 12 of this remedy, although he was not satisfied with the state’s settlement offer. (Id. at 4.) Judge 13 Peterson found that since Plaintiff therefore did not have a cognizable property claim, granting 14 Plaintiff leave to amend his claims would be futile. (Id.); Garmon v. Cty. of Los Angeles, 828 15 F.3d 837, 842 (9th Cir. 2016) (“A district court abuses its discretion by denying leave to amend 16 unless amendment would be futile or the plaintiff has failed to cure the complaint’s deficiencies 17 despite repeated opportunities.”) 18 Plaintiff objects to the R&R, stating that he does not understand the reason why his claim 19 may be dismissed 1, and requests the assistance of counsel. (Dkt. No. 4 at 1.) The Court has 20 discretion to appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1), but 21 an appointment of counsel should only be granted under “exceptional circumstances.” Agyeman 22 23 24 Plaintiff, however, did articulate and argue his disagreement with the conclusion that the availability of a postdeprivation remedy barred his claim; thereby demonstrating he understood Judge Peterson’s recommendation. (Dkt. No. 4 at 3.) 1 ORDER ADOPTING REPORT AND RECOMMENDATION - 2 Case 3:21-cv-05823-DGE Document 5 Filed 01/10/22 Page 3 of 4 1 v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). When determining whether 2 exceptional circumstances exist, the Court considers “the likelihood of success on the merits as 3 well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the 4 legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The Court finds no 5 such exceptional circumstances here; Judge Peterson’s finding that Plaintiff does not have a 6 cognizable property claim pursuant to 42 U.S.C. § 1983 is consistent with applicable Supreme 7 Court precedent and Plaintiff has adequately articulated his claims. 8 9 Plaintiff seeks to add additional Defendants to his claim whom he alleges were responsible for the loss of his property, and disagrees that the State of Washington has provided 10 him an adequate post-deprivation remedy. (Dkt. No. 4 at 2-4.) The Court is sympathetic to 11 Plaintiff’s argument that a settlement of $46.55 seems a paltry sum for one’s personal 12 possessions, especially when those possessions include irreplaceable items of a sentimental 13 nature, including personal correspondence and family photographs. However, as discussed 14 above, Plaintiff’s lack of a cognizable property claim would render amendment futile. 15 The Court, having reviewed Plaintiff’s complaint, the Report and Recommendation of the 16 Honorable Michelle Peterson, United States Magistrate Judge, any objections thereto, and the 17 remaining record, hereby finds and ORDERS as follows: 18 (1) The Report and Recommendation is ADOPTED. 19 (2) Plaintiff’s motion to proceed in forma pauperis is STRICKEN as moot. 20 (3) This case is hereby DISMISSED without prejudice. 21 (4) The Clerk is directed to send copies of this Order to the parties and to Judge Peterson. 22 Dated this 10th day of January, 2022. 23 24 ORDER ADOPTING REPORT AND RECOMMENDATION - 3 Case 3:21-cv-05823-DGE Document 5 Filed 01/10/22 Page 4 of 4 1 2 3 A David G. Estudillo United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ADOPTING REPORT AND RECOMMENDATION - 4

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