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 U.S. Magistrate Judge David W. Christel.
Dkt. 102. The Court has considered the Report and
Recommendation, objections, and the remaining record.
a pro se prisoner, filed this civil rights case on April 28,
2016. Dkt. 1. Plaintiff raises two claims in his Second
Amended Complaint: (1) Defendants Lieutenant Charla James
Hutchinson and Sergeant Caruso denied Plaintiff due process
when they revoked his good time credits, and (2) Defendants
Pastor and Spencer created a policy which denied Plaintiff
incoming mail. Dkt. 99.
HISTORY AND FACTS
15, 2017, a Report and Recommendation was filed, recommending
that the Court deny Plaintiff's two motions for
injunctive relief (Dkts. 52 and 65) because both motions seek
relief on matters outside the claims raised in the Second
Amended Complaint and because Plaintiff has failed to make
the required showing. Dkt. 102. Plaintiff's motions for
injunctive relief move the Court for an order requiring
Defendants at the Pierce County Washington Jail to stop: (1)
denying him access to legal materials, (2) denying him the
ability to send and receive mail, (3) harassing, assaulting,
and retaliating against him, and (4) housing him in a strip
cell in administrative segregation. Dkts. 52 and 65.
24, 2017, Plaintiff filed a pleading entitled
“Emergency Motion for an Evidentiary Hearing, ”
in which he stated that he was transferred to Western State,
an inpatient psychiatric hospital, for a competency
evaluation. Dkt. 104. In that motion, Plaintiff alleged that
all his legal documents were taken from him when he was
transferred. Id. Plaintiff sought an evidentiary
hearing, a return of his legal documents, and a finding that
Defendants violated his constitutional rights. Id.
Plaintiff filed a similar motion the next day (Dkt. 106), a
third and fourth on May 26, 2017 (Dkts. 108 and 109). On May
26, 2016, Plaintiff filed a Motion to Extend Any and All
Deadlines, Response Dates, to Respond to Any and All
Deadlines. Dkt. 107.
1, 2017, Defendants filed a Motion to Consolidate Pursuant to
Civ. R. 42 (Dkt. 111) and noted the motion for June 23, 3017.
In this motion, Defendants assert that Plaintiff filed two
separate related actions asserting civil rights claims
regarding his confinement in the Pierce County, Washington
Jail. Id. Defendants move to have the cases
14, 2017, Plaintiff notified the Court that he has been moved
from Western State and the Pierce County, Washington Jail to
a state facility - Monroe Correctional Complex. Dkt. 119.
Plaintiff states that he has not received any of his legal
15, 2017, Plaintiff filed objections to the Report and
Recommendation. Dkt. 120. He asserts that his motions for
temporary restraining orders (Dkts. 52 and 65) should be
granted, repeating his prior assertions. Id.
Plaintiff asserts that the Report and Recommendation should
not be adopted because, although it states he requests relief
outside the Second Amended Complaint, the Report and
Recommendation fails to mention that the relief he seeks in
his motions for injunctive relief is requested, in part, in
the Second Amended Complaint. Id. Plaintiff asserts
that the Report and Recommendation's finding that
Plaintiff has access to written legal materials is false.
Id. Although Plaintiff is no longer housed at the
Pierce County Jail, he continues to assert that the jail
“is violating his right to send and receive mail,
” the jail is denying him access to legal materials,
and the jail is violating his rights “due to the jail
do [sic] not have [sic] a disciplinary hearings board
Plaintiff is being held in solitary confinement.”
19, 2017, Plaintiff's motion for an extension of all
deadlines was granted. Dkt. 122. The Report and
Recommendation (Dkt. 102) was renoted for consideration on
July 14, 2014. Id. Plaintiff was given an
opportunity to file supplemental objections by July 7, 2017
and Defendants were given until July 14, 2017 to file a
supplemental response to Plaintiff's objections.
Id. Plaintiff's other motions (Dkts. 104, 106,
108, 109, and 121) and Defendants' Motion to Consolidate
Pursuant to Civ. R. 42 (Dkt. 111) were renoted for August 4,
2017. Id. On July 12, 2017, Defendants filed a
supplemental response. Dkt. 125.
Report and Recommendation (Dkt. 102) should be adopted and
Plaintiffs motions for temporary restraining orders (Dkts. 52
and 65) should be denied. Plaintiffs motions are now largely
moot because he is now housed at the state facility at Monroe
and is no longer at the Pierce County Jail. Further, as
stated in the Report and Recommendation, Plaintiff failed to
make a showing that he (1) is “likely to succeed on the
merits, ” (2) he is likely to suffer irreparable harm
in the absence of relief requested, (3) the “balance of
equities tips in his favor, ” and (4) “an
injunction is in the public interest, ” under
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). Dkt. 102. Further, as stated in the Report and
Recommendation, Plaintiff also failed to make the showing
required under Lopez v. Brewer, 680 F.3d 1068, 1070
(9th Cir. 2012), that there are “serious questions
going to the merits, ” a “likelihood of
irreparable injury to the plaintiff, the balance of hardships
tips sharply in favor of the plaintiff, and an injunctions is
in the public interest.” Id. Plaintiffs
objections do not provide a basis to reject the Report and
Recommendation. This case should be re-referred to U.S.
Magistrate Judge Christel for further proceedings.
. The Report and Recommendation (Dkt. 102)