United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION; DISMISSING
CASE WITH PREJUDICE
J. Pechman United States District Judge
MATTER comes before the Court on Plaintiff's Objections
(Dkt. No. 77) to the Report and Recommendation of the
Honorable Brian A. Tsuchida, United States Magistrate Judge.
(Dkt. No. 75.) Having reviewed the Report and Recommendation,
the Objections, the Response (Dkt. No. 78), and all related
papers, the Court ADOPTS the Report and Recommendation and
DISMISSES the matter with prejudice.
relevant facts and procedural background are set forth in
detail in the Report and Recommendation. (Dkt. No. 75.)
Plaintiff objects to the Report and Recommendation's
finding that his claims are barred by the applicable statutes
of limitations, which he contends were tolled while he
exhausted his administrative remedies. (Dkt. No. 77 at 1-2.)
Federal Rule of Civil Procedure 72, the Court must resolve
de novo any part of the Magistrate Judge's
Report and Recommendation that has been properly objected to
and may accept, reject, or modify the recommended
disposition. Fed.R.Civ.P. 72(b)(3); see also 28
U.S.C. § 636(b)(1).
Statute of Limitations
Plaintiff's claims is subject to a three-year statute of
limitations. See RCW 4.16.080; RK Ventures, Inc.
v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002);
Knight v. Washington State Dept. of Corrections, 147
F.Supp.3d 1165, 1169-70 (W.D. Wash. 2015); Antonius v.
King Cnty., 153 Wn.2d 256, 261-62 (2004). “[T]he
limitations period accrues when a party knows or has reason
to know of the injury which is the basis of the cause of
action.” Kimes v. Stone, 84 F.3d 1121, 1128
(9th Cir. 1996) (citation omitted). While the statute of
limitations is tolled “during the time period in which
an inmate is actively exhausting his administrative
remedies, ” an inmate is “not entitled to tolling
during the time he abandoned the process.” Soto v.
Sweetman, 882 F.3d 865, 875 (9th Cir. 2018) (emphasis in
original). Here, Plaintiff filed his original Complaint on
December 22, 2016. (See Dkt. Nos. 1, 2.) Therefore,
any claims arising before December 22, 2013 are barred by the
statutes of limitations unless Plaintiff can show that he was
actively exhausting his administrative remedies as of this
alleges that, in response to allegations that he was
soliciting other inmates for sex, he was placed in
administrative segregation beginning on January 19, 2011 and
was not released until March 5, 2012. (Dkt. No. 63 at
¶¶ 28, 54.) During this time, his administrative
segregation status was reviewed and he was recommended for a
six-month intensive management program and placed on
Intensive Management Status (“IMS”) until
February 15, 2012. (Id. at ¶¶ 23, 29-46.)
Thus, the Court considers whether Plaintiff exhausted his
administrative remedies with regard to his administrative
segregation placement and his IMS placement claims in turn:
Administrative Segregation Placement
he was placed in administrative segregation, Plaintiff
alleges he sent multiple communications to various prison
officials requesting review of his placement. (Id.
at ¶¶ 29-53.) On August 9, 2011, Plaintiff received
a letter from John Campbell, DOC Correctional Specialist,
explaining that his appeals had been denied. (See
Dkt. No. 68, Ex. 11 (“The allegations you make . . .
are not substantiated. You allege a widespread conspiracy
requiring collusion between staff and offenders and after
review this is found not to be the case.”).) Therefore,
the Court finds that Plaintiff's administrative
segregation claim was tolled until August 9, 2011.
he was released from administrative segregation on March 5,
2012, Plaintiff waited until October 28, 2014 to appeal his
“placement, assignment and retention in [administrative
segregation] on IMS between January 19,  to March 5,
2012 and August 16, 2010 to September 22, 2010.” (Dkt.
No. 63 at ¶ 57, Ex. Z.) On December 9, 2014, DOC
Classification and Case Management Administrator Liza Rohrer
denied Plaintiff's appeal, and explained that he could
have appealed between October 17, 2011 (the date on which the
applicable appeals policy for IMS classification was
established) and June 14, 2012 (the date on which the ...