Thomas v. Fischer

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 DAMION THOMAS, CASE NO. C24-1056-JCC 10 Plaintiff, ORDER 11 v. 12 HENRI FISCHER, 13 Defendant. 14

15 This matter comes before the Court on the Report and Recommendation (“R&R”) of the 16 Honorable David W. Christel (Dkt. No. 8.) After Judge Christel granted Plaintiff’s motion for a 17 time extension (Dkt. No. 6), Plaintiff amended the complaint, (Dkt. No. 7). Having reviewed the 18 R&R, and there being no objections, the Court ADOPTS the R&R (Dkt. No. 8) and DISMISSES 19 the amended complaint (Dkt. No. 7). 20 The R&R describes the allegations. (Dkt. No. 8 at 2–8.) In brief, Plaintiff placed an order 21 for religious beads from an authorized dealer on February 19, 2021. (Dkt. No. 7 at 13.) Because 22 Plaintiff’s bead order was overweight, Defendant, a Monroe Correctional Complex Chaplain, 23 withheld the beads from Plaintiff and restricted him from ordering additional beads for six 24 months. (Id. at 14.) After Plaintiff placed another bead order on May 1, 2021, Defendant refused 25 to process the order, and Plaintiff filed a grievance on May 14, 2021. (Id.) Subsequently, 26 Defendant delayed the May 14 bead order. (Id. at 14–15.) On July 15, 2024, Plaintiff filed a 1 § 1983 complaint alleging that Defendant violated his right to be free from First Amendment 2 retaliation when Defendant delayed the bead order because of Plaintiff filing the grievance. (Id. 3 at 4-6; see generally Dkt. No. 1.) 4 To bring a First Amendment retaliation claim, a plaintiff must allege a violation within 5 the applicable limitations period. In Washington, a plaintiff has three years to file a § 1983 action 6 from the time the plaintiff knew or should have known the factual basis for the claim. 7 RCW 4.16.080(2); Gausvik v. Perez, 392 F.3d 1006, 1009 (9th Cir. 2004); see also Bagley v. 8 CMC Real Est. Corp., 923 F.2d 758, 760 (9th Cir. 1991) (applying RCW 4.16.080(2) statute of 9 limitations to a § 1983 action in Washington). Plaintiff did not timely file his complaint here, as 10 the three-year statute of limitations expired on May 1, 2024.1 11 Plaintiff must also assert facts about conduct that would have chilled or silenced a person 12 of ordinary firmness by referencing “more than minimal harms.” Watison v. Carter, 668 F.3d 13 1108, 1115 (9th Cir. 2012) (filing false disciplinary charges against plaintiff, placing him in 14 administrative segregation, and interfering with his parole hearing chilled plaintiff from future 15 First Amendment activities).2 Even after Judge Christel asked for further clarification here, (see 16 Dkt. No. 4 at 6), Plaintiff’s amended complaint lacks allegations describing how the allegedly 17 retaliatory action, delaying a bead order, chilled his future First Amendment activities. (See 18 generally Dkt. No. 7.) 19 Accordingly, and pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii), Plaintiff’s amended 20 complaint (Dkt. No. 7) is DISMISSED with prejudice for failure to state a claim. Plaintiff shall 21 incur a “strike” under 28 U.S.C. 1915(g). The Clerk is directed to send copies of this order to 22 1 The R&R considered equitable tolling but declined to toll the limitations period. (Dkt. No. 8 at 23 5–6); see also Fowler v. Guerin, 515 P.3d 502, 507 (Wash. 2022) (finding that equitable tolling should be used sparingly but is warranted when plaintiff has exercised diligence and when 24 defendant’s bad faith, false assurances, or deception interferes with plaintiff’s timely filing). 25 2 There are five elements to a retaliation claim, but the Court will only focus on the deficient element. See, e.g., Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (listing the five 26 elements of a First Amendment retaliation claim). 1 Plaintiff and to the Honorable David W. Christel. 2 3 DATED this 13th day of December 2024. A 4 5 6 John C. Coughenour 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26