Moore v. State of Washington

• Court: District Court, W.D. Washington
• Decided: February 1, 2024
• Docket: 3:23-cv-05795
• Status: Unknown

Opinion

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3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 DAVID ALLEN MOORE, CASE NO. 3:23-cv-5795 8 Plaintiff, ORDER ADOPTING REPORT AND 9 RECOMMENDATION v. 10 STATE OF WASHINGTON, 11 Defendant. 12 13 1. INTRODUCTION 14 On January 5, 2024, the Honorable Theresa L. Fricke, United States 15 Magistrate Judge, issued a Report and Recommendation (“R&R”), recommending 16 the Court deny Plaintiff David Allen Moore’s motion to proceed in forma pauperis 17 (Dkt. No. 5) and dismiss this action without prejudice for failure to state a claim 18 upon which relief may be granted. Dkt. No. 14. Having reviewed the R&R, 19 Plaintiff’s subsequent filings, and being otherwise informed, the Court adopts the 20 R&R and DISMISSES Moore’s complaint for the reasons stated below. 21 22 23 1 2. BACKGROUND 2 On September 6, 2023, Plaintiff applied to proceed in forma pauperis under

3 28 U.S.C. § 1915. Dkt. No. 1. On November 1, 2023, Judge Fricke issued an order to 4 show cause directing Plaintiff to either explain and show cause why his proposed 5 civil rights complaint should not be dismissed or to file an amended complaint by 6 November 27, 2023. Dkt. No. 6. Plaintiff filed a document labeled “judicial notice” 7 and two “articles for indemnification.” Dkt. Nos. 7, 8, 9. On December 5, 2023, 8 Judge Fricke issued an order directing Plaintiff to show cause why his proposed

9 civil rights complaint should not be dismissed for failure to state a claim because his 10 filings were “incoherent and nearly illegible.” Dkt. No. 10 at 2. Judge Fricke 11 directed Plaintiff to present a proposed amended complaint that was “legibly 12 rewritten or retyped in its entirety.” Dkt. No. 10 at 3. On December 21, 2023, 13 Plaintiff filed an illegible response. Dkt. No. 11. The next day, Plaintiff filed an 14 illegible emergency motion for video conference. Dkt. No. 12. 15 On January 5, 2024, Judge Fricke recommended the case be dismissed for

16 failure to state a claim because the Court was “unable to read what Plaintiff [had] 17 submitted because it was illegible and [thus the Court] cannot discern any legally 18 cognizable claims.” Dkt. No. 14 at 4. 19 On January 23, 2024, Plaintiff filed a Notice of Appeal to the Ninth Circuit. 20 Dkt. No. 18. The Notice of Appeal is also illegible. Additionally, Plaintiff did not pay 21 the required $605 docketing fee.

22 23 1 3. DISCUSSION 2 3.1 The Court retains jurisdiction to consider the Report and Recommendation. 3 On January 23, 2024, Plaintiff filed a Notice of Appeal. Dkt. No. 18. Like his 4 other filings, the Notice is mostly illegible. See id. Due to the timing of the Notice, 5 the Court assumes Plaintiff intended to appeal Judge Fricke’s R&R denying him 6 IFP status and recommending dismissal of the case. Dkt. Nos. 14, 18. The appeal 7 has not yet been resolved by the Ninth Circuit. See docket generally. 8 A federal district court and a federal court of appeals “should not attempt to 9 assert jurisdiction over a case simultaneously.” Griggs v. Provident Consumer Disc. 10 Co., 459 U.S. 56, 58 (1982) (per curiam). Usually, “[t]he filing of a notice of appeal is 11 an event of jurisdictional significance—it confers jurisdiction on the court of appeals 12 and divests the district court of its control over those aspects of the case involved in 13 the appeal.” Id. But “[w]hen a Notice of Appeal is defective in that it refers to a non- 14 appealable interlocutory order, it does not transfer jurisdiction to the appellate 15 court, and so the ordinary rule that the district court cannot act until the mandate 16 has issued on the appeal does not apply.” Nascimento v. Dummer, 508 F.3d 905, 908 17 (9th Cir. 2007). In this instance, the district court “may disregard the purported 18 notice of appeal and proceed with the case, knowing that it has not been deprived of 19 jurisdiction.” Ruby v. Sec’y of the U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966). 20 Plaintiff’s appeal was premature since a report and recommendation is not a 21 final order. Hilliard v. Kincheloe, 796 F.2d 308, 309 (9th Cir. 1986) (“[R]eports and 22 recommendations filed by magistrates with the district court and served on the 23 1 parties . . . are not appealable orders and . . .any notice of appeal pursuant to Fed. 2 R. App. P. 4(a)(1) should not be filed until entry of the district court's judgment.”).

3 Thus, Plaintiff’s notice of appeal does not divest this Court of jurisdiction. 4 3.2 The Court adopts Judge Fricke’s Report and Recommendation. 5 The Court reviews de novo only the findings and recommendation that are 6 properly objected to. Fed. R. Civ. P. 72(b)(3). A party properly objects when he or 7 she files “specific written objections” to the Report and Recommendation under Fed. 8 R. Civ. P. 72(b)(2). General objections, on the other hand, do not trigger the Court’s 9 de novo review. See Brandon v. Dep’t of Corr., No. C21-5417-JCC, 2021 WL 10 5937685, at *1 (W.D. Wash. Dec. 16, 2021) (“[A] general objection has the same 11 effect as no objection at all, since it does not focus the Court’s attention on any 12 specific issue for review.”); see also Howard v. Sec’y of Health & Hum. Servs., 932 13 F.2d 505, 509 (6th Cir. 1991) (“A general objection to the entirety of the magistrate’s 14 report has the same effects as would a failure to object.”); Lockert v. Faulkner, 843 15 F.2d 1015, 1019 (7th Cir. 1988) (“A district judge should not have to guess what 16 arguments an objecting party depends on when reviewing a magistrate’s report.”). 17 Plaintiff submitted two documents Exhibits (Dkt. No. 16) and Miscellaneous 18 Documents (Articles of/For Indemnification) (Dkt. No. 17). The Exhibits document is 19 a series of Department of Corrections Incident Reports. Dkt. No. 16. The 20 handwritten contents of the Articles of Indemnification are not legible and are 21 accompanied by two Department of Corrections Resolution Requests. Dkt. No. 17. 22 The Court does not interpret either of these documents as specific objections to the 23 1 R&R. See Brandon v. Dep’t of Corr., No. C21-5417-JCC, 2021 WL 5937685, at *1 2 (W.D. Wash. Dec. 16, 2021) (“[A] general objection has the same effect as no

3 objection at all, since it does not focus the Court’s attention on any specific issue for 4 review.”). 5 Because there were no proper objections, the Court may adopt the R&R if it is 6 satisfied there are no clear errors on the face of the record. Fed. R. Civ. P. 7 72(b) Advisory Committee’s Note to 1983 Amendment. The Court agrees with Judge 8 Fricke’s reasoning that dismissal without prejudice is warranted given that

9 Plaintiff’s filings are illegible and thus fail to state a claim upon which relief may be 10 granted. 11 4. CONCLUSION 12 Based on its review of the R&R and the remaining record, the Court finds 13 and ORDERS: 14 1. The Court ADOPTS the Report and Recommendation; 15 2. Plaintiff’s application to proceed in forma pauperis is DENIED;

16 3. Plaintiff’s complaint is dismissed without prejudice; 17 4. Plaintiff’s Motion for Video Conference is DENIED as MOOT; and 18 5. The Clerk is directed to send a copy of this Order to Plaintiff. 19 Dated this 1st day of February, 2024. 20 A 21 Jamal N. Whitehead United States District Judge 22