United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
J. BRYAN United States District Judge
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
Objection to Defendants' suggested comparison of
Plaintiff to a pretrial detainee.
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
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.
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).
reference to Wolfish is proper citation to binding
authority. Wolfish is still good law, so
Plaintiff's argument is unavailing.
Objection to dismissal of 5th
Amendment/double jeopardy claim.
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.
Objection to dismissal of Bounds claims.
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
Objection to dismissal of destruction of computer (and
Due Process) claim.
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)