Castilla v. Van Boening

Full title: JULIO CASTILLA, Plaintiff, v. RONALD VAN BOENING et al., Defendants

Court: United States District Court, W.D. Washington, at Tacoma

Date published: Sep 2, 2011

CASE NO. C10-5684 RJB (W.D. Wash. Sep. 2, 2011)

Opinion

CASE NO. C10-5684 RJB.

September 2, 2011

ORDER ADOPTING A REPORT AND RECOMMENDATION

ROBERT BRYAN, District Judge

This matter comes before the Court on the Report and Recommendation of the Honorable J. Richard Creatura, United States Magistrate Judge, dated August 5, 2011, (Dkt. 39), and Plaintiff's Objections to the Report and Recommendation, dated August 18, 2011, and filed August 22, 2011 (Dkt. 40). The Court has considered the Report and Recommendation, Plaintiff's objections, and the remaining record, and hereby adopts the Amended Report and Recommendation for the reasons stated herein.

This action involves a polygraph test given to the plaintiff in 2007. Plaintiff alleges his rights were violated because he should have been provided with a Spanish speaking interpreter. Defendants filed a motion for judgment on the pleadings (Dkt. 33), and Plaintiff responded by filing a motion for non-suit (Dkt. 38).

A dismissal pursuant to Rule 41(a)(2) requires court approval and is only effective "upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2).

The Magistrate Judge recommends that dismissal with prejudice be entered. Dkt. 39. Plaintiff objects, contending that the Court should stay proceedings, remand for exhaustion of the claims through the administrative proceedings, and/or dismiss without prejudice (Dkt. 40).

The Court finds Plaintiff's objections without merit. As detailed in the Report and Recommendation, Plaintiff did not file a timely grievance regarding the issue of having an interpreter at his polygraph test and he is now time barred. A stay of the proceedings, or dismissal without prejudice, would serve no purpose as Plaintiff cannot now exhaust his administrative procedures.

The Court, having reviewed the Report and Recommendation of Magistrate Judge J. Richard Creatura, objections to the Report and Recommendation, if any, and the remaining record, does hereby find and ORDER:

1. The Court adopts the Report and Recommendation;

2. This action is DISMISSED WITH PREJUDICE. Given the amount of time the action was pending, dismissal without prejudice would not be proper.

3. The Clerk is directed to send a copy of this Order to Plaintiff, and to the Hon. J. Richard Creatura.