United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on United States Magistrate Karen L. Strombom's Report and Recommendation (Dkt. 149) and on plaintiff's Motion for Leave to File Objection/Cross Summary Judgment and/or Affidavit (Dkt. 150). The Court has considered the Report and Recommendation, plaintiff's motion, and the file herein.
Procedural history. On February 9, 2012, while an inmate at the Pierce County Jail, plaintiff, currently a state prisoner proceeding pro se, filed a 42 U.S.C. § 1983 action against the then-named defendants, including Pierce County. Dkts. 1, 80.
Thereafter, on May 24, 2013, and March 10, 2014, the Court granted the then-named defendants' two successive motions to dismiss for failure to state a claim, dismissing all plaintiff's claims against all defendants, except his religious-based claims against Pierce County. Dkts. 69, 104. Pierce County is the remaining defendant in the present action.
On November 14, 2014, Pierce County filed a motion for a summary judgment on plaintiff's religious-based claims. Dkt. 124. Plaintiff's deadline to file a response to Pierce County's motion was extended twice: first until February 6, 2015, and second until March 2, 2015. Dkts. 140, 142. On March 25, 2015, the Court denied plaintiff's yet another request for a time extension to file a response, noting that this request was his fifteenth time extension request since he initiated this lawsuit on February 9, 2012. Dkt. 146.
On April 1, 2015, Magistrate Judge Strombom issued a Report and Recommendation, recommending that the Court grant Pierce County summary judgment on plaintiff's religiousbased claims.
On April 6, 2015, plaintiff filed a motion for leave to file objection/cross-summary judgment and/or affidavit, requesting that the Court accept "this Motion under Fed. R. Civ. P 56 as a Title 28 U.S.C. 1746 as opposition to Summary Judgment and/or Cross Summary Judgment." Dkt. 150.
Review of plaintiff's motion. The Court should deny plaintiff's motion for leave to file objection/cross-summary judgment and/or affidavit as untimely. The deadline to file any dispositive motions was November 14, 2014. Dkt. 105. Similarly, Magistrate Judge Strombom has denied plaintiff's request for a time extension to file a response, which was due on or before March 2, 2015, to Pierce County's motion for a summary judgment. Dkt. 146. Plaintiff filed his motion for leave to file objection/cross-summary judgment and/or affidavit on April 6, 2015. Accordingly, the Court should deny as untimely (a) plaintiff's motion for a cross summary judgment; and (b) plaintiff's opposition to Pierce County's motion for a summary judgment.
However, the Court has considered plaintiff's motion for leave to file objection/crosssummary judgment and/or affidavit as objections to the Report and Recommendation, determining that no response from Pierce County is necessary.
Review of Report and Recommendation. Magistrate Judge Strombom recommends that the Court dismiss (1) without prejudice plaintiff's "unexhausted religious-based claims" for failure to exhaust available administrative remedies; (2) with prejudice plaintiff's remaining five "exhausted religious-based claims" for failure to show a substantial burden on exercise of religion; and (3) plaintiff's claim under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") for failure to show a substantial burden on exercise of religion. Dkt. 149.
The Court has reviewed the record de novo and agrees with Magistrate Judge Strombom's analysis and conclusion. Plaintiff has failed to show that a dispute of material fact exists in this case. Accordingly, the Court should adopt Magistrate Judge Strombom's Report and Recommendation.
The Court, having reviewed Magistrate Judge Strombom's Report and Recommendation, and the remaining record, does hereby find and ORDER:
(1) Plaintiff's Motion for Leave to File Objection/Cross Summary Judgment and/or Affidavit (Dkt. 150) is DENIED, except that the Court has considered this document as objections ...