United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
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. 102), and Plaintiff Shawn James Cruze's ("Cruze") objections to the R&R (Dkt. 103).
On January 17, 2014, Judge Creatura issued an R&R recommending that Cruze's motion to dismiss should be granted. Dkt. 102. On January 30, 2014, Cruze filed objections to the R&R, without arguing that Judge Creatura's conclusion was in error. Dkt. 103. On February 7, 2014, State Defendants responded, arguing that Judge Creatura's R&R should be adopted. Dkt. 105. They argue in part that the R&R should be adopted because, though he was given numerous chances, Cruze has never withdrawn his motion to dismiss. Id. at 1. Additionally, they argue that Cruze's objections do not indicate that Judge Creatura erred in granting his motion to dismiss with prejudice. Dkt. 105.
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).
In Cruze's objections, he does not challenge Judge Creatura's decision to grant his motion to dismiss, nor does he ask the Court to refrain from dismissing this matter. Dkt. 103. In fact, he again insists the Court should grant his motion because of the duress, mainly the retaliatory threats he was under from Defendants and their counsel, Assistant Attorney General, Victor Minjares ("Minjares"). Id. Cruze states in part "[m]y decision to dismiss my claim is, and has been perfectly clear." Id. at 1. Cruze makes new arguments related to these issues which are not part of his original dismissal motion. He argues he does not have access to the courts in retaliation for this suit. He also argues that he is threatened with placement outside Washington State, also in alleged retaliation for bringing this suit. See Dkts. 75 and 103. Cruze further asks that Judge Creatura recuse himself from the case because he has done nothing to protect Cruze's right to pursue his claims, and he seeks appointment of counsel. Dkt. 103.
As a preliminary matter, this matter is not currently pending before Judge Creatura. Therefore, recusal is unnecessary.
Judge Creatura's R&R properly concluded that Cruze's motion to dismiss should be granted and that dismissal should be with prejudice. Judge Creatura's R&R accurately summarizes the procedural history of the case, while it was pending before him. In part, Judge Creatura stated:
On October 28, 2013, plaintiff filed a motion to dismiss this action claiming that he had been threatened by defense counsel (ECF No. 75). Defendants filed motions to extend the deadline for filing dispositive motions and one defendant filed a dispositive motion (ECF Nos. 62, 80, and 81).
Because of the serious nature of plaintiff's allegations, the Court granted defendants' motion to stay the action for thirty days while the Washington State Attorney General's Office investigated the matter (ECF No. 85). Following the investigation, the Assistant Attorney General who purportedly threatened plaintiff with retaliation withdrew from the action, and a different Assistant Attorney General took over the representation for the majority of defendants. One defendant is represented by private counsel and is not the subject of the allegation.
In the order staying the action, the Court informed the parties that if plaintiff did not withdraw the motion, then the Court would consider plaintiff's motion to dismiss the entire action on December 27, 2013 (ECF No. 85, p. 2). Plaintiff filed a response to the motion asking to stay the action and stated he would not participate any further in this case (ECF No. 86). Yet, on the same day, plaintiff also filed a response to a pending motion for summary judgment in which he again stated that he was dismissing his claims (ECF No. 87).
Plaintiff proceeded to file motions and re-enter the action and he filed pleadings on December 12, 2013 (ECF No. 91 and 92). Given the conflicting nature of plaintiff's filings, the Court again warned plaintiff that it would consider his motion to dismiss on December 27, 2013 if he did not withdraw the motion (ECF No, 96, p. 2). The Court stated:
Plaintiff has filed a motion to dismiss this entire action and stated he would not participate further in these proceedings (ECF No. 75 and 86). When the Court stayed the action the Court informed plaintiff that it would consider his motion to dismiss the case on December 27, 2013 if he did not withdraw the motion (ECF No. 85). Plaintiff has until December 27, 2013 to withdraw his motion. If plaintiff does not file a withdrawal of this motion by December 27, 2013, then the Court will act on plaintiff's request.
As on January 15, 2014, the Court has not received any filing that it can construe as a withdrawal of plaintiff's motion to dismiss this action. The only filing by plaintiff further addressing this issue was "Plaintiff's response to Defendant's motion to hold case in abeyance" (ECF No. 86), in which plaintiff stated, ...