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Hankerson v. Department of Corrections

United States District Court, Ninth Circuit

November 7, 2013



BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt.71), and Plaintiff's objections to the R&R (Dkt. 73).


On February 1, 2013, Plaintiff Cullen M. Hankerson ("Hankerson") filed a complaint in Pierce County Superior Court which alleged violations of his civil rights under 42 U.S.C. ยง 1983 involving Defendants' alleged conduct in preventing him from taking his legal materials from the county jail to prison. See Dkts. 1 and 1-2. On July 18, 2013, Defendants removed the action to federal court on the basis of federal question jurisdiction. Dkt. 1.

The parties filed cross motions for summary judgment. Dkts. 22 and 40. On September 26, 2013, Judge Creatura issued an R&R recommending that the Court grant Defendant's motion and deny Hankerson's motion. Dkt. 71. On October 10, 2013, Hankerson filed objections to the R&R. Dkt. 73. On October 23, 2013, Defendants responded in opposition. Dkt. 77. On November 11, 2013, Hankerson replied. Dkt. 78.


The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).

Upon review of Judge Creatura's decision, the Court finds that his recommendations are based on a thorough review of the record and a well-reasoned analysis of the law. As Judge Creatura found, Hankerson failed to demonstrate that the Department of Corrections or its employees were involved in the action of county jail employees, who allegedly prevented Hankerson from taking his legal materials with him to prison. Dkt. 71 at 3. Further, as Judge Creatura properly noted, the record reflects that Hankerson's materials were picked up by a person of Hankerson's choosing, Toni Felton, and the Department is not liable for his inability to obtain those materials. Id. Additionally, consistent with Judge Creatura's finding, the Court also finds that Hankerson failed to show that Defendant Cheryl Sullivan, a sergeant working in the mailroom, who allegedly misdirected two pieces of Hankerson's mail, caused him to miss a court deadline or otherwise adversely impacted any legal action. Id. at 6-10. Finally, Judge Creatura properly found Defendants are entitled to qualified immunity because Hankerson failed to show that Department personnel had a duty to train county employees. Id. at 10-12.

Nothing in Hankerson's objections demonstrates that Judge Creatura's recommendation is in error. As Defendants correctly observe, Hankerson's submissions to the Court do not comply with Fed.R.Civ.P. 72(b)(2) requiring him to file and serve "specific written objections to the proposed findings and recommendations" in the R&R. Dkt. 77 at 2. Hankerson's objections are not specific objections to portions of Judge Creatura's order, rather they are in large part either a repetition of portions of his summary judgment motion ( see, e.g., Dkt. 73 at 2-3) or an untimely attempt to challenge Judge Creatura's issuance of a stay in the case ( see, e.g., id. at 1). As such, the Court finds no merit in Hankerson's objections which would warrant reversal or modification of Judge Creatura's R&R.


The Court having considered the R&R, Plaintiff's objections, Defendant's response and the remaining record, does hereby find and order as follows:

(1) The R&R is ADOPTED;
(2) This action is DISMISSED; and
(3) The clerk is directed to terminate all pending motions.

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