United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable
Theresa L. Fricke, United States Magistrate Judge, Dkt. 82,
Defendants Fitzwater and Lewis's
(“Defendants”) objections to the R&R, Dkt.
83, and Plaintiff Larry Lloyd's (“Lloyd”)
objections to the R&R, Dkt. 84.
January 9, 2019, Judge Fricke issued the R&R recommending
that the Court deny Lloyd's motion for a preliminary
injunction and grant Defendants' motion to dismiss. Dkt.
82. Judge Fricke recommended that some claims be dismissed
with prejudice and that some claims be dismissed without
prejudice and with leave to amend. Id. On January
23, 2019, Defendants filed objections. Dkt. 83. On January
28, 2019, Lloyd filed objections. Dkt. 84. On January 29,
2019, Lloyd responded to Defendants' objections. Dkt. 85.
On February 1, 2019, Defendants responded to Lloyd's
objections. Dkt. 86. On February 13, 2019, Lloyd replied to
Defendants' response. Dkt. 88.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
object to the portion of the R&R recommending that Lloyd
be allowed leave to amend his medical indifference claims
against them. Defendants concede that, in order to prevail on
this argument, they must show that “it is absolutely
clear that the deficiencies of the complaint could not be
cured by amendment.” Dkt. 83 at 3 (citing Weilburg
v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007)). The
Court finds that Defendants have failed to establish the
absolute clarity of Lloyd's failed claim. At most,
Defendants establish a strong argument that Lloyd's claim
may not survive a motion to dismiss, which does not rise to
the level necessary to deny Lloyd leave to amend. Therefore,
the Court adopts the R&R on this issue.
objects to the R&R's recommendations that the Court
dismiss Lloyd's Fourteenth Amendment due process claim
and First and Fourteenth Amendment access to the courts claim
with prejudice. Dkt. 84. First, Lloyd argues that he has
stated a valid due process claim based on Defendants'
failure to accept or process his grievances. Id. at
3-9. Contrary to Lloyd's position, the law is clearly
established that there is no constitutional right to a
grievance system. See Mann v. Adams, 855 F.2d 639,
640 (9th Cir. 1988); Ramirez v. Galaza, 334 F.3d
850, 860 (9th Cir. 2003). Thus, Lloyd's argument is
also argues that he was a pretrial detainee instead of a
prisoner, which affords him more protections. Dkt. 84 at 7.
Lloyd, however, improperly seeks to extend the law applicable
to medical claims under the Eighth and Fourteenth Amendments.
See Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175,
1189 (9th Cir. 2002), overruled on other grounds by
Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir.
2016) (“It is quite possible, therefore, that the
protections provided pretrial detainees by the Fourteenth
Amendment in some instances exceed those provided convicted
prisoners by the Eighth Amendment.”). Thus, the Court
adopts the R&R on the dismissal of Lloyd's Fourteenth
Amendment due process claim.
Lloyd objects to the R&R's recommendation that the
Court dismiss his First and Fourteenth Amendment access to
the courts claim. Dkt. 84 at 10-16. The problem with
Lloyd's argument is that he conflates the allegations of
failure to accept a grievance with retaliation for filing a
grievance. A claim based on the former requires an actual
injury, Lewis v. Casey, 518 U.S. 343, 346 (1996),
whereas a claim based on retaliation requires allegations
establishing that the government actor's actions chilled
the inmate's exercise of his rights, Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). In this
case, Lloyd alleges only that Defendants' failure to
accept his claim prevented him from exhausting his claim.
Judge Fricke concluded that this is not an actual injury
sufficient to state a claim because Lloyd may overcome the
exhaustion requirement by establishing that Defendants
interfered with his attempt to exhaust. Dkt. 82 at 10-11.
Thus, Lloyd has failed to allege an actual injury. The Court
agrees with this analysis and adopts the R&R on this
the Court having considered the R&R, the parties'
objections, and the remaining record, does hereby find and
order as follows:
R&R is ADOPTED;
Defendants' motion to dismiss is
Lloyd may file an amended complaint as set ...