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Hausken v. D. Lewis

United States District Court, W.D. Washington, Tacoma

May 12, 2014

PHILLIP BURTON HAUSKEN, Plaintiff,
v.
D. LEWIS, et al., Defendants.

ORDER AFFIRMING IN PART AND DENYING IN PART R&R; SANCTIONING DEFENDANTS; AND RE-REFERRING CASE

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. 47), Defendants' objections to the R&R (Dkt. 50) and Plaintiff's objections to the R&R (Dkt. 58).

I. PROCEDURAL & FACTUAL BACKGROUND

On October 16, 2012, Phillip Burton Hausken ("Hausken"), an inmate in the Special Offender Unit at Monroe Correctional Complex, filed a 42 U.S.C. ยง 1983 civil rights action against Daniel Lewis ("Lewis"), Dawn Thompson ("Thompson"), and Joyce Marciel ("Marciel"). Dkt. 5.

Hausken alleges that in violation of the Constitution, each month, fifty cents is taken from his inmate trust account and forwarded to the inmate betterment fund to pay for cable television that his unit does not have access to and other privileges he does not use. Dkt. 5 at 6. Lewis, the inmate trust account manager, is allegedly the individual who takes the fifty cents from Hausken's account. Id. The funds are sent to the inmate betterment fund administered by Marciel. Id. Hausken seeks money damages and injunctive relief to prevent the monthly taking of his fifty cents.

On December 17, 2012, Defendants filed a motion to dismiss Hausken's complaint. Dkt. 11. On February 2, 2013, in an R&R on Defendants' motion, Judge Creatura recommended granting Defendants qualified immunity from damages, but allowing the case to proceed on the issue of injunctive relief. Dkt. 21. A premature appeal to the Ninth Circuit, made on March 23, 2013, and subsequent motions to amend the complaint delayed the Court's consideration of the R&R. See Dkts. 24, 25, 28 and 32.

On September 12, 2013, the Court granted Lewis and Marciel qualified immunity from damages, but held that Hausken could proceed with a claim for injunctive relief against them in their official capacities. Id. at 7 and 10. Thompson, who merely denied Hausken's tort claim, was dismissed based on lack of personal participation. Id. at 8. Construing Hausken's pro se complaint liberally, the Court found he sufficiently pled a Fifth Amendment takings claim ( id. at 12), and re-referred the matter to Judge Creatura for further proceedings.

On November 5, 2013, Judge Creatura entered an order to show cause directing Hausken to take some action because Defendants had failed to file a timely answer after their motion to dismiss had been denied in part. Dkt. 41.

On December 20, 2013, Hausken filed a motion for default. Dkt. 42. Defendants responded by filing a motion to strike Hausken's motion. Dkt. 43.

On March 4, 2013, Judge Creatura denied Defendants' motion to strike, reasoning in part that after the Court entered the order granting in part and denying in part their motion to dismiss, "Defendants needed to file an answer, or another motion that would prevent the entry of default within 14 days of entry of the Court's order." Dkt. 46 at 2 ( citing Fed.R.Civ.P. 12 (a)(4)(A)). Judge Creatura further reasoned that by the end of September 2013, Defendants had defaulted, and, even after entry of the show cause order (Dkt. 41), informing Defendants they were in default, they still failed to file an answer, thus allowing the action to languish for five months. Dkt. 46 at 2.

On March 4, 2014, Judge Creatura also issued an R&R recommending that the Court grant Hausken's motion for default and enter an order of default and default judgment against Defendants. Dkt. 47. Judge Creatura based his recommendation on the fact that Defendants had improperly delayed the action from September 2013 until February 2014. Id. at 3 ( citing Swaim v. Moltan Co., 73 F.3d 711, 716 (7th Cir. 1996)). Thus, Judge Creatura recommended that the Court grant injunctive relief preventing Defendants or their agents from taking funds for cable television from Hausken while he is housed in a unit that does not have in-cell access to cable television. Id. at 4. He also recommended granting Hausken costs, including his filing fee in this action. Id.

On the same day Judge Creatura issued the order denying Defendants' motion to strike and the R&R, Defendants filed an answer to Hausken's complaint. Dkt. 48. On April 30, 2014, Hausken filed objections.[1] Dkt. 58.

II. DISCUSSION

A. Standard of ...


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