Garnica-Melgoza v. Fortney

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 DANIEL GARNICA-MELGOZA, CASE NO. C22-0392 BHS 8 Plaintiff, ORDER ADOPTING REPORT 9 v. AND RECOMMENDATION 10 ADAM FORTNEY, et al., 11 Defendants. 12

13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable J. Richard Creatura, United States Magistrate Judge, Dkt. 39, and 15 Plaintiff Daniel Garnica-Melgoza’s Objections to the R&R, Dkt. 40. 16 Garnica-Melgoza sued three Snohomish County police officers, Adam Fortney, 17 Evan Twedt, and Grant Kendall, arguing that they used excessive force in violation of the 18 Eighth and Fourteenth Amendments to the U.S. Constitution when they shot fifty rounds 19 into his vehicle during a high-speed chase. Dkt. 5. Garnica-Melgoza sought appointment 20 of counsel after he filed his complaint. Dkt. 6. Judge Creatura denied that motion without 21 prejudice, concluding that Garnica-Melgoza failed to show he faced “exceptional 22 circumstances” warranting appointment of counsel in a civil matter. Dkt. 9. 1 Defendants Fortney and Kendall moved to dismiss Garnica-Melgoza’s complaint 2 in May 2022, arguing that he failed to state a claim and that his claims are barred by Heck 3 v. Humphrey, 512 U.S. 477, 486–87 (1994), collateral estoppel, and the Rooker-Feldman

4 doctrine. Dkt. 16 at 1. Garnica-Melgoza again moved for court-appointed counsel, Dkt. 5 21, and Judge Creatura again denied that motion, Dkt. 33. 6 Garnica-Melgoza then moved to voluntarily dismiss his complaint, without 7 prejudice. Dkt. 35. He argued that voluntary dismissal without prejudice was appropriate 8 because his is currently incarcerated at the Washington State Penitentiary where he lacks

9 access to a law library, the person who had been helping him draft legal documents was 10 moved into a different unit, he needs help drafting documents because he is not a native 11 English speaker, he has been denied appointment of counsel, and he is suffering from 12 mental health issues including bipolar disorder. Id. at 1. In that motion, Garnica-Melgoza 13 indicated that he wanted to wait for his release from custody in nine months to pursue his

14 case. Id. at 2. Defendants opposed Garnica-Melgoza’s motion and argued that the Court 15 should instead rule on their motion to dismiss, dismiss the complaint with prejudice, and 16 “make a finding of a second ‘strike’ against Plaintiff pursuant to 28 [U.S.C.] § 1915(g).” 17 Dkt. 37 at 1. 18 Judge Creatura’s R&R concluded that Defendants would not suffer prejudice if the

19 Court granted Garnica-Melgoza’s motion and he therefore recommended that the Court 20 grant that motion, deny Defendants’ motion to dismiss as moot, decline to find a second 21 strike under § 1915, and dismiss Garnica-Melgoza’s complaint without prejudice. 22 Garnica-Melgoza filed “Objections,” but those objections dispute Defendants’ response 1 to his motion rather than Judge Creatura’s R&R. Dkt. 40. He agrees with the outcome of 2 Judge Creatura’s R&R and no other objections were filed. 3 The district judge must determine de novo any part of the magistrate judge’s

4 disposition that has been properly objected to. The district judge may accept, reject, or 5 modify the recommended disposition; receive further evidence; or return the matter to the 6 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). There are effectively no 7 objections to Judge Creatura’s R&R and the Court does not disagree with the outcome. 8 The Court having considered the R&R, Plaintiff’s objections, and the remaining

9 record, does hereby order as follows: 10 (1) The R&R is ADOPTED; 11 (2) Garnica-Melgoza’s Motion for Voluntary Dismissal, Dkt. 35, is 12 GRANTED; 13 (3) Defendants’ Motion to Dismiss, Dkt. 16, is DENIED as moot;

14 (4) Garnica-Meldoza’s claims are DISMISSED without prejudice; 15 (5) The Clerk is directed to send copies of this Order to Garnica-Meldoza, 16 counsel for Defendants, and to Judge Creatura; and 17 (6) The Clerk shall enter a JUDGMENT and close the case. 18 Dated this 12th day of August, 2022. A 19 20 BENJAMIN H. SETTLE 21 United States District Judge