United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION AND
L. ROBART UNITED STATES DISTRICT JUDGE
the court are Magistrate Judge Mary Alice Theiler's
report and recommendation granting Defendant Sean Nolan, Dan
Sproul, Ian Connors, and Mary Mitchell's (collectively,
“Defendants”) Motion to Dismiss and pro se
Plaintiff Robert Stanard's objections
thereto. (See Objections (Dkt. # 81);
R&R (Dkt. # 28); MTD (Dkt. # 15).) Defendants filed a
response to Plaintiff's objections. (See Resp.
(Dkt. # 32).) For the reasons discussed below, the court
ADOPTS the report and recommendation and DISMISSES with
prejudice Mr. Stanard's complaint.
STANDARD OF REVIEW
district court has jurisdiction to review a Magistrate
Judge's report and recommendation on dispositive matters.
Fed.R.Civ.P. 72(b). “The district judge must determine
de novo any part of the magistrate judge's disposition
that has been properly objected to.” Id.
“A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). The
court reviews de novo those portions of the report and
recommendation to which specific written objection is made.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc). “The statute makes it clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise.” Id. Because Mr.
Stanard is proceeding pro se, this court must
interpret his complaint and and objections liberally. See
Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 (9th
Stanard alleges in this Bivens action that his First
and Fifth Amendment Rights were violated when his prison
public messaging account was suspended by an employee at the
SeaTac Federal Detention Center (“FDC”) and when
subsequent attempts to have his account reinstated through
the Bureau of Prisons administrative remedy process were
rejected. (See Compl. (Dkt. # 1-1) at 13-19.)
Magistrate Judge Theiler recommends granting Defendants'
motion to dismiss on the basis that “it would be
inappropriate to extend the Bivens remedy to
plaintiff's First and Fifth Amendment claims.”
(See R&R at 8.)
construed, Mr. Stanard's late-filed objections to the
report and recommendation present two issues for the
court's review: (1) whether Magistrate Judge Theiler
committed an error in her analysis whether the Bureau of
Prisons administrative law remedy is adequate; (2) whether
Magistrate Judge Theiler erred by finding that Congress, not
the court, could authorize a suit for money damages. (See
generally Objections; see also Resp.)
court has thoroughly examined the record and finds Magistrate
Judge Theiler's reasoning persuasive in light of the
record and the applicable law. Mr. Stanard's objections
raise issues that were properly analyzed in Magistrate Judge
Theiler's report and recommendation. Magistrate Judge
Theiler correctly applied United States Supreme Court
authority making clear that “expanding the
Bivens remedy is now a ‘disfavored'
judicial activity” and noting that the Supreme Court
has “consistently refused to extend Bivens to
any new context or new category of defendants.”
(See R&R at 5 (quoting Ziglar v.
Abbasi, 137 S.Ct. 1843, 1857 (2017)).) Mr. Stanard's
objections provide no contrary authority. (See
generally Objections.) Nevertheless, Magistrate Judge
Theiler applied the two-step test for extending
Bivens and concluded that Mr. Standard's claims
do not meet that test. (See R&R at 5-8.) The
court finds the report and recommendation persuasive and
adopts it in full. Because amendment would be futile given
that Mr. Stanard does not have an actionable Bivens
claim, the court dismisses his complaint with prejudice.
foregoing reasons, the court hereby ORDERS as follows:
court ADOPTS Magistrate Judge Theiler's report and
recommendation (Dkt. # 28) in its entirety;
court GRANTS Defendants' motion to dismiss for failure to
state a claim (Dkt. # 15);
court DISMISSES Plaintiff's Civil Rights Complaint (Dkt.
# 1-1) ...