Howard v. Montague

• Court: District Court, W.D. Washington
• Decided: May 11, 2023
• Docket: 3:23-cv-05076
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RICHARD CARL HOWARD, CASE NO. 3:23-cv-05076-DGE 11 Plaintiff, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 GREGORY MONTAGUE et al., 14 Defendants. 15 16 I. INTRODUCTION 17 This matter comes before the Court on Magistrate Judge Brian A. Tsuchida’s Report and 18 Recommendation dismissing Plaintiff Richard Howard’s complaint. (Dkt. No. 7.) Plaintiff 19 timely objected to the Report and Recommendation. (Dkt. No. 8.) 20 II. BACKGROUND 21 Plaintiff, proceeding pro se, filed his Complaint for damages on January 30, 2023. (Dkt. 22 No. 1.) The Complaint alleges Eighth Amendment violations, negligence, and due process 23 violations. (Id. at 4, 6, 7.) His claims stem from an arrest by Officers Gregory Montague and 24 1 Esther Oh on December 17, 2019, where Plaintiff alleges Defendant Montague assaulted him 2 and Defendant Oh did not intervene. (Id. at 5-6.) 3 Magistrate Judge Tsuchida issued a Report and Recommendation, finding the statute of 4 limitations on Plaintiff’s claims had run and Plaintiff is barred from filing suit. (Dkt. No. 7 at 3.)

5 Plaintiff timely filed an objection, arguing that because he “first exhausted all administrative 6 remedies which include a tort claim that was first investigated then denied[,]” the three-year 7 statute of limitations was inapplicable. (Dkt. No. 8 at 1.) He asserts that his “filing of a tort 8 claim provides him with an additional sixty (60) days on top of the three years he had to file a 9 lawsuit, and therefore, [Plaintiff] had until February 17[,] 2023 to file any claim.” (Id. at 1–2.) 10 III. DISCUSSION 11 Causes of action arising under 42 U.S.C. § 1983 borrow their limitations period from the 12 forum state's limitations period for personal injury cases. Robinson v. City of Seattle, 830 P.2d 13 318 (Wash. 1992); Rose v. Rinaldi, 654 F.2d 546, 547 (9th Cir. 1981). The “applicable period of 14 limitations for [a §] 1983 action is three years under [Washington Revised Code §] 4.16.080(2).”

15 Rose, 654 F.2d at 547. 16 Although claims against a local entity in Washington are normally tolled 60 days after the 17 claim is presented to the local entity’s agent, see Washington Revised Code § 4.96.020(4), 18 Washington’s special tolling provision is inapplicable to § 1983 claims. Boston v. Kitsap 19 County, 852 F.3d 1182 (9th Cir. 2017) (“[Washington Revised Code § 4.96.020] does not 20 operate to toll the state’s general residual limitations period to § 1983 actions, and Appellee’s 21 § 1983 claim should thus have been dismissed.”). 22 23

24 1 Thus, contrary to Plaintiff’s objection, his filing of a “tort claim that was first investigated 2 then denied” did not toll the applicable statute of limitations. Because Plaintiff offers no other 3 basis to support equitable tolling of his § 1983 claim, Plaintiff’s § 1983 claim is barred. 4 IV. CONCLUSION

5 Having reviewed the Report and Recommendation (Dkt. No. 7), any objections or 6 responses to that, and the remaining record, the Court find and ORDERS: 7 1. The Court ADOPTS the Report and Recommendation. 8 2. The case is dismissed with prejudice. 9 3. The Clerk is directed to send copies of this Order to the parties and to Judge 10 Tsuchida. 11 12 Dated this 11th day of May, 2023. 13 A 14 David G. Estudillo 15 United States District Judge 16 17 18 19 20 21 22 23 24