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)

Case 3:21-cv-05823-DGE Document 5 Filed 01/10/22 Page 1 of 4

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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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.)

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ORDER ADOPTING REPORT AND RECOMMENDATION - 1

Case 3:21-cv-05823-DGE Document 5 Filed 01/10/22 Page 2 of 4

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On November 18, 2021, United States Magistrate Judge Michelle Peterson issued a report

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and recommendation (“R&R”) recommending that Plaintiff’s complaint be dismissed prior to

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service pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief may be

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granted and that Plaintiff’s motion to proceed in forma pauperis (“IFP”) be stricken as moot.

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(Dkt. No. 3.) Judge Peterson found that where a state employee’s random, unauthorized act

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deprives an individual of property, either negligently or intentionally, the individual is relegated

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to his state post-deprivation process, so long as the state provides an adequate post-deprivation

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remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 540-41

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(1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). (Id. at 3-4.)

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Judge Peterson found that Washington State provides a post-deprivation remedy for the

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alleged tortious conduct of state employees under RCW 4.92, and that Plaintiff availed himself

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of this remedy, although he was not satisfied with the state’s settlement offer. (Id. at 4.) Judge

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Peterson found that since Plaintiff therefore did not have a cognizable property claim, granting

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Plaintiff leave to amend his claims would be futile. (Id.); Garmon v. Cty. of Los Angeles, 828

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F.3d 837, 842 (9th Cir. 2016) (“A district court abuses its discretion by denying leave to amend

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unless amendment would be futile or the plaintiff has failed to cure the complaint’s deficiencies

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despite repeated opportunities.”)

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Plaintiff objects to the R&R, stating that he does not understand the reason why his claim

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may be dismissed 1, and requests the assistance of counsel. (Dkt. No. 4 at 1.) The Court has

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discretion to appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1), but

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an appointment of counsel should only be granted under “exceptional circumstances.” Agyeman

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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.)

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ORDER ADOPTING REPORT AND RECOMMENDATION - 2

Case 3:21-cv-05823-DGE Document 5 Filed 01/10/22 Page 3 of 4

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v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). When determining whether

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exceptional circumstances exist, the Court considers “the likelihood of success on the merits as

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well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The Court finds no

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such exceptional circumstances here; Judge Peterson’s finding that Plaintiff does not have a

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cognizable property claim pursuant to 42 U.S.C. § 1983 is consistent with applicable Supreme

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Court precedent and Plaintiff has adequately articulated his claims.

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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

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him an adequate post-deprivation remedy. (Dkt. No. 4 at 2-4.) The Court is sympathetic to

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Plaintiff’s argument that a settlement of $46.55 seems a paltry sum for one’s personal

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possessions, especially when those possessions include irreplaceable items of a sentimental

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nature, including personal correspondence and family photographs. However, as discussed

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above, Plaintiff’s lack of a cognizable property claim would render amendment futile.

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The Court, having reviewed Plaintiff’s complaint, the Report and Recommendation of the

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Honorable Michelle Peterson, United States Magistrate Judge, any objections thereto, and the

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remaining record, hereby finds and ORDERS as follows:

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(1) The Report and Recommendation is ADOPTED.

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(2) Plaintiff’s motion to proceed in forma pauperis is STRICKEN as moot.

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(3) This case is hereby DISMISSED without prejudice.

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(4) The Clerk is directed to send copies of this Order to the parties and to Judge Peterson.

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Dated this 10th day of January, 2022.

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ORDER ADOPTING REPORT AND RECOMMENDATION - 3

Case 3:21-cv-05823-DGE Document 5 Filed 01/10/22 Page 4 of 4

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A

David G. Estudillo
United States District Judge

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ORDER ADOPTING REPORT AND RECOMMENDATION - 4