United States District Court, W.D. Washington, Tacoma
February 26, 2014
JAMES O'NEIL WIGGIN, Plaintiff,
RN SCHNEIDER, LT. MATTHEWS, JOHN DOE SERGEANT, DEPARTMENT OF CORRECTIONS, Defendant.
ORDER ON REPORT AND RECOMMENDATION
ROBERT J. BRYAN, District Judge.
This matter comes before the court on Magistrate Judge Karen L. Strombom's Report and Recommendation (Dkt. 35) that Defendants Motion to Dismiss (Dkt. 22) should be denied in part, granted in part, and Plaintiff's Motion to Amend the Complaint (Dkt. 29) should be granted. The parties were given until February 24, 2014 to file objections. Dkt. 35 at 8. No objections were filed by that date.
The Report and Recommendation states that, under Eleventh Amendment immunity and § 1983's official capacity requirement, defendant Department of Corrections (DOC) is entitled to summary judgment on plaintiff's § 1983 claim and should be dismissed as a defendant from this action. Dkt. 35 at 6. However, this is a motion to dismiss and inclusion of the phrase "summary judgment" is an error. DOC is entitled to dismissal from this matter.
The Court, having reviewed the Report and Recommendation of United States Magistrate Judge Karen L. Strombom (Dkt.35), and the remaining record, does hereby find and ORDER:
1. The Report and Recommendation (Dkt. 35) is ADOPTED, and further clarified with the foregoing language.
2. Defendants' Motion to Dismiss (Dkt. 22) is GRANTED as to plaintiff's claims against Department of Corrections, and DENIED as to plaintiff's remaining claims. Any claim against Department of Corrections is DISMISSED with prejudice.
3. Plaintiff's Motion to Amend (Dkt. 29) is GRANTED.
4. This matter is RE-REFERRED to the magistrate for further proceedings.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.