United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION
BARBARA JACOBS ROTHSTEIN United State District Judge
the Court are Plaintiffs and Defendant's cross motions
for summary judgment (ECF Nos. 11 and 13), the Report and
Recommendation ("R&R") of the Honorable
Michelle L. Peterson, United States Magistrate Judge (ECF No.
21), Plaintiffs objection to the R&R (ECF No. 24), and
Defendant's response to the objections (ECF No. 25). The
R&R recommends denying Eckard's motion for summary
judgment and granting Defendant Zacharias's cross motion.
Having reviewed these matters, the Court will adopt the
party files specific and properly filed written objections to
an R&R, the district court must review the Magistrate
Judge's findings de novo. United States v.
Raddatz, 447 U.S. 667, 673 (1980). The requirement for
this Court to make de novo review is limited to
those parts of the R&R to which objection is properly
made made. Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(1) ("A judge of the court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made").
Eckard has failed to make any properly filed objection. The
R&R found that Eckard's allegation that Defendant
Zacharias caused Eckard's medicine to be suspended was
conclusory and not supported by any evidence. Eckard objected
to this by attempting to add new information that is not
otherwise in the record, stating that he had a conversation
with Zacharias on October 14, 2019 in which she acknowledged
that her actions would cause a Doctor to suspend Eckard's
medication. This assertion made in his objection is not just
untimely but also in improper form since it is not supported
by affidavit or declaration or any other form which a
litigant "must" use to support the assertion.
See Fed. R. Civ. P. 56(c). Eckard requests more time
for discovery, but this request is untimely, and furthermore,
is a possible remedy only for a non-movant for summary
judgment. See Fed. R. Civ. P. 56(d). Eckard is the
one who moved for summary judgment in the first place,
arguing that "there is no triable issue of fact. .
." PL's Mot. for Summ. J., ECF No. 11 at 12.
Eckard's late attempt to object with an assertion of fact
that is not part of the record and not made by affidavit or
declaration does not constitute a properly filed objection.
Accordingly, this Court will adopt the R&R.
Court next considers whether Eckard's suit was malicious.
This question is germane to the Prison Litigation Reform Act
of 1996's (PLRA) "three-strikes" rule, 28
U.S.C. § 1915(g), which prohibits a prisoner from filing
an action in forma pauperis if he has accumulated
three "strikes" for prior federal-court actions
while incarcerated or in detention, unless he is "under
imminent danger of serious physical injury."
Id. A prisoner can incur a "strike" for
bringing an action "that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted." Id.
PLRA does not define "malicious," so the Ninth
Circuit requires courts to look to the "ordinary,
contemporary, common meaning" in defining such terms.
Wilderness Soc 'y v. United States Fish &
Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en
banc) (internal quotation marks and citations omitted). This
Court turns to two trusted treatises. Black's Law
Dictionary defines malicious as "1. Substantially
certain to cause injury. 2. Without just cause or
excuse." Black's Law Dictionary (11th ed.
2019). The Oxford English Dictionary defines malicious as
being characterized by malice, which is "The intention
or desire to do evil or cause injury to another; active ill
will or hatred." Oxford English Dictionary (3d
motion for summary judgment, Eckard wrote, "Maybe
[Defendant] was frustrated that no self-respecting man wanted
to couple with her, perhaps she had not had her daily Double
Quarter Pounder with Cheese, or, it could just be that she
was on-the-rag." Pl.'s Mot. for Summ. J., ECF No. 11
at 12. In his written objection to the R&R, Eckard called
Magistrate Judge Peterson "dishonorable" and said
that she "should not quit her day job." ECF No. 24
at 2. Accordingly, the Court finds that Eckard's suit is
malicious. There is simply no justification for Eckard to use
his case and this Court's resources as platforms for
personal attacks. A review of the entire case leaves the
Court with a strong impression that Eckard's case was
motivated at least in part by his personal animosity and not
to pursue legal redress of a legitimate grievance.
Court hereby ORDERS:
(1) The Report and Recommendation from Magistrate Judge
Michelle L. Peterson (ECF No. 21) is approved and adopted;
(2) Eckard's motion for summary judgment (ECF No. 11) is
(3) Defendant's cross-motion for summary judgment (ECF
No. 13) is GRANTED;
(4) Eckard's present case is found to be malicious and
will thus count as a strike under 28U.S.C. § 1915(g);
(5) Eckard's complaint (ECF No. 5) and this action are
DISMISSED, with prejudice;
(6) The Clerk is directed to send copies of this Order to
Plaintiff, to counsel for Defendant, and to the ...