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Donaghe v. Lashway

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

June 7, 2017

SAM DONAGHE, Plaintiff,
v.
PATRISHA LASHWAY, KEVIN QUIGLEY, et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          ROBERT J. BRYAN United States District Judge

         THIS MATTER comes before the Court on the Report and Recommendation of Magistrate Judge J. Richard Creatura. Dkt. 37. The Court has reviewed the Report and Recommendation; objections filed by Plaintiff (Dkt. 39); response to Plaintiff's objections filed by Defendants (Dkt. 40); pleadings relating to the two underlying motions, Defendants' Motion to Dismiss (Dkt. 26) and Plaintiff's Motion to Dismiss (Dkt. 35); and the remainder of the file herein. The Court will adopt the Report and Recommendation, which recommends dismissal for claims except those challenging his conditions of confinement. This Court adds the caveat that, except for the 5th Amendment/Double Jeopardy claim, dismissal must be without prejudice and with leave to amend. The Court also adds the following additional analysis to address Plaintiff's discrete objections.

         A) Objection to Defendants' suggested comparison of Plaintiff to a pretrial detainee.

         Plaintiff objects to Defendants' characterization of Plaintiff as a pretrial detainee. The objection is without merit for two reasons. First, the objection addresses Defendants' characterization of Plaintiff, which falls outside the purview of a proper objection. Objections should address parties' substantive issues with the R&R. Second, this Court adopts the law discussed by the R&R, including the R&R's observation that the pending civil commitments are, in fact, at the pretrial stage, which has bearing on the ways that Defendants may-or may not- detain Plaintiff. See Dkt. 37 at 7-10. Characterizing Plaintiff as a pretrial detainee is accurate. Although Plaintiff is not incarcerated, his freedom has been curtailed due to the pending civil commitment proceedings. See Sharp v. Weston, 323 F.3d 1166, 1172-73 (9th Cir. 2000); Jones v. Blanas, 393 F.3d 918, 931 (1981).

         B) Objection to R&R use of Bell v. Wolfish, 441 U.S. 520, 554 (1979). Plaintiff's objection to the R&R's reliance on Wolfish is noted, but it is without merit.

         The R&R, which this Court adopts, states:

The [Jones v. Blanas, 393 F.3d at 931] court also noted that ‘an individual detained under civil process-like an individual accused but not convicted of a crime-cannot be subjected to conditions that ‘amount to punishment.'” [Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004)] (quoting Bell v. Wolfish, 441 U.S. 520, 536 (1979).

         The reference to Wolfish is proper citation to binding authority. Wolfish is still good law, so Plaintiff's argument is unavailing.

         C) Objection to dismissal of 5th Amendment/double jeopardy claim.

         Plaintiff opines that the “exact same” “historical records . . . [used for] criminal prosecution” are being used “for the purpose of depriving liberty a second time classed as a sexually violent predator (SVP).” Dkt. 39 at 4. The Supreme Court of the United States squarely rejected challenges to Washington's civil commitment statutes on the basis of double jeopardy. Selig v. Young, 531 U.S. 250, 263 (2001). Allowing Plaintiff to amend this claim would be futile, so dismissal should be with prejudice. As noted by the R&R, the bar against the double jeopardy claim does not preclude Plaintiff from challenging the conditions of confinement as a substantive due process claim.

         D) Objection to dismissal of Bounds claims.

         Plaintiff objects to the R&R's reliance on Lewis v. Casey, 518 U.S. 343 (1996). Lewis held that in the context of a Bounds claim, the plaintiff must show an actual injury, which is “actual prejudice with respect to contemplated or existing litigation.” Dkt. 37 at 14. Plaintiff requests that he be permitted to conduct discovery to establish “imminent harm.” However, the R&R recommended dismissal for failure to state a claim in his written complaint. Dkt. 37 at 16. The law requires a statement of claim which, if adequate, is the foundation for discovery to prove the claim alleged. The law does not allow discovery without that foundation. Permitting Plaintiff to conduct discovery on the Bounds claim is not warranted, because even if Plaintiff proved all the allegations in the Complaint he would not be entitled to recovery. The Complaint does not, as a matter of law, state a claim upon which relief can be granted. As the R&R recommends, the Bounds claims should be dismissed, but dismissal should be without prejudice and with leave to amend.

         E) Objection to dismissal of destruction of computer (and Due Process) claim.

         Plaintiff argues that the Complaint sufficiently alleges a Due Process claim under the theory that defendants destroyed his computer in violation of a specific policy, SCC Policy 212. Dkt. 39 at 10, 11. See Dkt. 1-1 at ¶4.68. The R&R properly recommends that the Complaint be permitted to proceed to the extent that the facts surrounding destruction of Plaintiff's computer relate to conditions of confinement. Dkt. 37 at 24. The R&R correctly notes that even if, as alleged, Plaintiff's computer was destroyed in violation of an SCC policy, “state department regulation do not establish a constitutional violation.” Dkt. 37 at 25, citing to Cousins v. Lockyer, 568 F.3d 1063 (9th Cir. 2009) (citations ...


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