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Baker v. Seeley

United States District Court, Western District of Washington
Jan 26, 2023
3:22-cv-05584-DGE-SKV (W.D. Wash. Jan. 26, 2023)

Opinion

3:22-cv-05584-DGE-SKV

01-26-2023

JAMALL S BAKER, Plaintiff, v. JEREMY SEELEY, et. al., Defendants.


ORDER ADOPTING REPORT AND RECOMMENDATION

David G. Estudillo, United States District Judge

This matter comes before the Court on the Report and Recommendation (R&R) of the Honorable S. Kate Vaughan, United States Magistrate Judge (Dkt. No. 19) and Plaintiff Jamall Baker's objections to the R&R (Dkt. No. 21). The Court agrees with the R&R but addresses Plaintiff's objections below.

I. PLAINTIFF'S OBJECTIONS

Plaintiff objects to the R&R “in entirety” and argues “[i]t appears from the record that the [United States Magistrate Judge] has not at all considered Mr. Baker's affidavit which clearly states that there is a material fact in dispute.” (Dkt. No. 21 at 2.) Plaintiff argues he believed Defendant Seeley threats and his “state of mind was subjective, a feeling that should not be ruled on [at summary judgment].” (Id.)

In response, Defendants argue “[a]lthough threats or intimidation can make a grievance procedure unavailable, [Plaintiff] bore the burden of producing facts showing he believed the alleged threats” and the “facts in the record make his allegations frankly implausible.” (Dkt. No. 22 at 2) (citing McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015) (“[The plaintiff must “provide a basis for the court to find that he actually believed prison officials would retaliate against him if he filed a grievance.”).

Plaintiff's objection is unavailing. The R&R clearly considered Plaintiff's affidavit- both Plaintiff's response and affidavit are referenced and cited throughout the R&R. (See Dkt. No. 19 at 6, 8.) Further, the R&R does not impermissibly rule on Plaintiff's state of mind. The R&R finds, based on the record, Plaintiff failed to fulfill his burden to “show that this there is something in his case that made the existing remedies effectively unavailable to him.” (See id. at 4, 19.) The record shows Plaintiff continued to litigate claims of harassment against Defendant Seeley in other matters even after his alleged threats and Plaintiff made more than 30 grievances before filing suit after the alleged threats occurred. (See id. at 6, 8-9.)

Plaintiff also objects to his case being dismissed with prejudice. The R&R recommends dismissal with prejudice because “it is clear that the time for pursuing his administrative remedies with respect to the claims asserted herein has passed[.]” (Id. at 10.) Plaintiff argues dismissal without prejudice is nonetheless required because, in theory, he could re-file his case after pursuing grievances or file his action in state court. (Dkt. No. 21 at 2-3) (citing O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1059 (9th Cir. 2007) and Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)). Ford is not binding in this circuit and Plaintiff's case is distinguishable from O'Guinn. The plaintiff in O'Guinn had sufficient time to exhaust his Americans with Disabilities Act and Rehabilitation Act claims when the case was dismissed, whereas exhaustion has been unavailable to Plaintiff even before issuance of the R&R.

II. ORDER

Accordingly, having reviewed the Report and Recommendation of the Honorable S. Kate Vaughan, United States Magistrate Judge, any objections and responses, and the remaining record, the Court finds and ORDERS:

(1) The Court ADOPTS the Report and Recommendation (Dkt. No. 19).
(2) Defendants' motion for summary judgment (Dkt. No. 9) is GRANTED;
(3) Plaintiff's amended complaint (Dkt. No. 1-4) and this action are DISMISSED with prejudice based upon Plaintiff's failure to comply with the exhaustion requirement of 41 U.S.C. § 1997e(a).
(4) Plaintiff's motion to supplement his response (Dkt. No. 13), and Plaintiff's motion for leave to file a surreply (Dkt. No. 17), are DENIED.
(5) The Clerk is directed to send copies of this Order to Plaintiff, to counsel for Defendants, and to the Honorable S. Kate Vaughan.


Summaries of

Baker v. Seeley

United States District Court, Western District of Washington
Jan 26, 2023
3:22-cv-05584-DGE-SKV (W.D. Wash. Jan. 26, 2023)
Case details for

Baker v. Seeley

Case Details

Full title:JAMALL S BAKER, Plaintiff, v. JEREMY SEELEY, et. al., Defendants.

Court:United States District Court, Western District of Washington

Date published: Jan 26, 2023

Citations

3:22-cv-05584-DGE-SKV (W.D. Wash. Jan. 26, 2023)