Opinion
C21-5624 BHS
12-28-2021
PREIEST DARRIN SMITH, Plaintiff, v. TACOMA POLICE DEPARTMENT, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura, United States Magistrate Judge, Dkt. 5, and Plaintiff Preiest Darrin Smith's objections to the R&R, Dkt. 6.
Plaintiff commenced this action in August 2021 and seeks to proceed in forma pauperis (“IFP”). Dkt. 1. On September 1, 2021, after reviewing Plaintiff's proposed complaint, the Court ordered Plaintiff to show cause or amend the complaint for failing to state a claim upon which relief could be granted. Dkt. 2. Plaintiff filed his proposed amended complaint on September 24, 2021. Dkt. 3.
On October 26, 2021, Judge Creatura issued the instant R&R, recommending that the Court deny the motion to proceed IFP and dismiss the matter without prejudice for lack of jurisdiction. Dkt. 5. The R&R concluded that the Court does not have federal question jurisdiction, 28 U.S.C. § 1331, over Plaintiff's proposed claims because the proposed amended complaint lists several Washington State laws as the basis for the action. Dkt. 5 at 2. The R&R further concluded that federal question jurisdiction is lacking because Plaintiff named the Tacoma Police Department instead of the City of Tacoma as the defendant, despite prior warnings to Plaintiff about naming the proper defendant. Id. at 2-3. Finally, the R&R concluded that the Court does have diversity jurisdiction, 28 U.S.C. § 1332, because both parties are in Tacoma, Washington. Dkt. 5 at 2. On November 10, 2021, Plaintiff filed objections to the R&R. Dkt. 6.
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).
Plaintiff objects to the R&R's recommendation to dismiss his case, arguing that he can bring an action in federal court under 42 U.S.C. § 1983. Dkt. 6. But, as the Court has explained, an action under § 1983 “must be brought against a municipality (such as the City of Tacoma) and not a department of the municipality.” Dkt. 2 at 2. The Court agrees with the R&R that jurisdiction is lacking based upon Plaintiff's proposed amended complaint.
The Court having considered the R&R, Plaintiff's objections, and the remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED;
(2) Plaintiff's motion for leave to proceed in forma pauperis, Dkt. 1, is DENIED;
(3) This matter is DISMISSED without prejudice; and
(4) The Clerk shall enter a JUDGMENT and close the case.