Hagos v. Kahsay

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

DANIEL TEKLEMARIAM CASE NO. C23-0251JLR HAGOS, ORDER ADOPTING REPORT Plaintiff, AND RECOMMENDATION v.

MAHALIA KAHSAY, et al., Defendants. Before the court is Magistrate Judge David W. Christel’s report and recommendation (R&R (Dkt. # 5)), in which Magistrate Judge Christel recommends that the court (1) dismiss pro se Plaintiff Daniel Teklemariam Hagos’s 42 U.S.C. § 1983 civil rights complaint without leave to amend (Compl. (Dkt. # 1-1)) and (2) count the dismissal as a “strike” under 28 U.S.C. § 1915(g). After Magistrate Judge Christel issued the report and recommendation, and before the deadline to file objections, Mr. Hagos filed two documents, which the court construes together as constituting Mr. Hagos’s objections to the report and recommendation. (See 4/3/23 Misc. Doc. (Dkt. # 6); 4/7/23 Misc. Doc. (Dkt. # 7).) Having carefully reviewed the foregoing documents, the relevant

portions of the record, and the governing law, the court ADOPTS the report and recommendation in its entirety; DENIES Mr. Hagos’s objections; DISMISSES Mr. Hagos’s civil rights complaint; and DEEMS this dismissal a “strike” under 28 U.S.C. § 1915(g). A district court has jurisdiction to review a Magistrate Judge’s report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “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 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.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Because Mr. Hagos is proceeding pro se, the court must

interpret his complaint and objections liberally. See Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003). Magistrate Judge Christel recommends that the court dismiss Mr. Hagos’s complaint because the three Defendants named in that complaint are not subject to suit under Section 1983. (R&R at 3-5.) Specifically, Magistrate Judge Christel recommends

that the court dismiss the complaint because (1) Defendant Mahalia Kahsay, Mr. Hagos’s court-appointed defense attorney, is not a state actor within the meaning of Section 1983; (2) Defendant Owen Lesesne, a King County Deputy Prosecutor, is entitled to prosecutorial immunity; and (3) Defendant the State of Washington has not waived its sovereign immunity rights under the Eleventh Amendment to the United States Constitution. (Id.) Magistrate Judge Christel also recommends that the court deny leave

to amend on the basis of futility because nothing Mr. Hagos could allege in an amended complaint can cure these deficiencies. (Id. at 5.) Finally, Magistrate Judge Christel recommends that the dismissal count as a “strike” under 28 U.S.C. § 1915(g), which provides that a prisoner shall not, except in cases of “imminent danger of serious physical injury,” bring a civil action if he or she has, while detained, brought three or more prior suits that were dismissed as frivolous, as malicious, or for failure to state a claim. (Id.);

28 U.S.C. § 1915(g). Mr. Hagos does not directly object to Magistrate Judge Christel’s recommendation that the court conclude that Defendants are not subject to suit under Section 1983. (See 4/3/23 Misc. Doc.; 4/7/23 Misc. Doc.) Nevertheless, the court has reviewed Magistrate Judge Christel’s report and recommendation de novo. See Reyna-Tapia, 328 F.3d at

1121. Having done so, the court agrees, for the reasons set forth in the report and recommendation, that Mr. Hagos has failed to state a claim upon which relief can be granted and that amendment of the complaint would be futile. Accordingly, the court ORDERS as follows: 1. The court ADOPTS the report and recommendation (Dkt. # 5) in its

entirety; 2. Mr. Hagos’s complaint (Dkt. # 1-1) is DISMISSED without prejudice and without leave to amend; 3. This dismissal counts as a “strike” under 28 U.S.C. § 1915(g); and 4. Mr. Hagos’s application to proceed in forma pauperis (IFP App. (Dkt. # 1)) is DENIED as moot.

The Clerk is DIRECTED to send copies of this order to Mr. Hagos and to Magistrate Judge Christel. Dated this 21st day of April, 2023. A United States District Judge