United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
Alice Theiler United States Magistrate Judge
AND SUMMARY CONCLUSION
a pro se civil rights action proceeding under 42
U.S.C. § 1983. Plaintiff Gabriel Eckard is currently
confined at the Snohomish County Jail in Everett, Washington.
He has been granted leave to proceed with this action in
forma pauperis. Service has not been ordered. This
Court, having reviewed plaintiff's complaint, and the
balance of the record, concludes that plaintiff has not
adequately stated a claim for relief in this action. This
Court therefore recommends that plaintiff's complaint and
this action be dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
submitted his civil rights complaint to the Court for filing
on May 30, 2019. (See Dkt. 1.) Plaintiff asserted in
his complaint that on April 22, 2019, Kelly Roy, a
Corrections Deputy at the Snohomish County Jail, harassed him
by searching his cell even though it had been searched three
hours earlier by another member of the corrections staff.
(Dkt. 5 at 3.) Plaintiff further asserted that defendant
Roy's confiscation of photographs from his cell during
the search was not related to a government interest.
(Id.) Plaintiff alleged that defendant Roy's
conduct violated his rights under the First, Fourth, and
Fourteenth Amendments. (Id.) Kelly Roy was the only
defendant named in the complaint. (See id. at 1, 2.)
Plaintiff requested declaratory and injunctive relief, and
two million dollars in compensatory and punitive damages.
(Id. at 4.)
reviewing plaintiff's complaint, this Court determined
that the pleading was deficient. Thus, on July 1, 2019, the
Court issued an Order declining to serve plaintiff's
complaint and granting him leave to amend. (Dkt. 6.) The
Court explained therein that to the extent plaintiff alleged
that the search of his cell by defendant Roy violated his
rights under the Fourth Amendment, he had not stated a viable
claim for relief because the Fourth Amendment's
prohibition against unreasonable searches does not apply
within the confines of a prison cell. (Id. at 3,
citing Hudson v. Palmer, 468 U.S. 517, 526 (1984)).
The Court also explained that, to the extent plaintiff
complained that photographs were removed from his cell during
the challenged search, he had not stated a cognizable claim
for relief because he had post-deprivation remedies available
to him under state law. (See id., citing
Hudson, 468 U.S. at 533.)
the Court explained that, to the extent plaintiff may have
intended to allege a retaliation claim against defendant Roy,
he failed to state a viable First Amendment claim because he
failed to allege facts demonstrating that defendant Roy's
challenged conduct was related to plaintiff's exercise of
his constitutional rights and he failed to allege specific
facts demonstrating that the challenged cell search did not
advance legitimate goals of the correctional facility.
(See id. at 3-4.)
was granted thirty days within which to file an amended
complaint correcting the noted deficiencies, and he was
advised that his failure to do so would result in a
recommendation that this action be dismissed. (Id.
at 4.) To date plaintiff has filed no amended complaint.
complaint is frivolous, malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief, the Court may
dismiss an in forma pauperis complaint before
service of process under 28 U.S.C. § 1915(e)(2)(B).
Because plaintiff failed to state in his original pleading
any claim upon which relief could be granted under §
1983, and because he failed to file an amended pleading
correcting the deficiencies identified in the Court's
Order declining to serve his original pleading, this action
must be dismissed.
on the foregoing, this Court recommends that plaintiff's
complaint and this action be dismissed, without prejudice,
under 28 U.S.C. § 1915(e)(2)(B)(ii). This Court further
recommends that this dismissal be counted as a strike under
28 U.S.C. § 1915(g). A proposed order accompanies this
Report and Recommendation.
to this Report and Recommendation, if any, should be filed
with the Clerk and served upon all parties to this suit
within twenty-one (21) days of the date on
which this Report and Recommendation is signed. Failure to
file objections within the specified time may affect the
right to appeal. Objections should be noted for consideration
on the District Judge's motions calendar for the third
Friday after they are filed. Responses to objections may be
filed within fourteen (14) days after