Thibodeaux v. Haynes

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA LOUIS JAMES THIBODEAUX, CASE NO. 3:21-cv-5326-BHS Plaintiff, ORDER ADOPTING REPORT 9 v. AND RECOMMENDATION RON HAYNES, et al., 11 Defendants.

13 This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable Michelle L. Peterson, United States Magistrate Judge, Dkt. 54, and Plaintiff Louis Thibodeaux’s objections to the R&R, Dkt. 55.

16 Thibodeaux, proceeding pro se and in forma pauperis, commenced this action in May 2021. Dkt. 1. He alleges violations of his Eighth Amendment rights arising from his contraction of COVID-19 while he was housed at Stafford Creek Corrections Center (“SCCC”). See Dkt. 19. Thibodeaux seeks declaratory and injunctive relief, damages, and costs. Id. at 11–14.

21 Specifically, Thibodeaux’s first cause of action alleges that Defendants, consisting of SCCC employees, violated his Eighth Amendment rights based on his conditions of confinement at the SCCC due to Defendants’ handling of the COVID-19 pandemic and SCCC’s internal COVID-19 protocols. Id. at 9–10. He alleges that he was unable to protect himself from COVID-19 and that the virus was allowed to spread at SCCC due to Defendants’ actions. Id. Thibodeaux’s second cause of action alleges that, pursuant to 42 5 U.S.C. § 1983, Defendants Haynes, Kariko, Herrington, Cherry, Attard, and “Does 1-10,” instituted official policies and procedures at SCCC that deprived him of timely medical care, treatment, testing, effective COVID-19 PPE, and adequate segregated housing to mitigate COVID-19 exposures. Id. at 10–11. He further alleges under this cause of action that Defendants Haynes, Kariko, Herrington, Cherry, Attard, and “Does 1-10,” falsely reported to the Department of Corrections that SCCC followed COVID-19 avoidance procedures and that they negated the administrative process to provide him emergency relief. Id. at 11.

13 Thibodeaux and Defendants filed cross-motions for summary judgment, Dkt. 37 (Thibodeaux’s motion); Dkt. 40 (Defendants’ motion), and Defendants filed a motion to strike, Dkt. 49. Judge Peterson then issued the instant R&R, recommending that the Court grant Defendants’ motions, deny Thibodeaux’s motion, and dismiss the case with prejudice. Dkt. 54. Thibodeaux has filed objections to the R&R, Dkt. 55, to which Defendants responded, Dkt. 56.

19 The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

1 Thibodeaux’s objection consists only of a single sentence referencing Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Dkt. 55. Rand holds that a pro se litigant is entitled to fair notice of the requirements of the summary judgment rule. 154 F.3d at 4 958–60. Thibodeaux did not raise Rand in response to Defendants’ motion for summary judgment, and thus the R&R did not address whether Rand was satisfied. A proper objection requires specific written objections to the findings and recommendations in the R&R. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

8 However, the Court does have discretion to consider a new argument raised for the first time in objections to an R&R. See Brown v. Roe, 279 F.3d 742, 745–46 (9th Cir. 2002) (rejecting the Fourth Circuit’s holding that a district court must consider new arguments raised for the first time in an objection to a magistrate judge’s R&R); Olmos v. Ryan, No. CV-11-00344-PHX-GMS, 2013 WL 3199831, at *8 (D. Ariz. June 24, 2013) (“Generally, a district court need not consider new arguments raised for the first time in objections to an R & R.”). As Defendants highlight in their response to Thibodeaux’s objections, Dkt. 56, Defendants did provide Thibodeaux a Rand notice upon the filing of their cross-motion for summary judgment, Dkt. 45. Thibodeaux was advised of the summary judgment requirements pursuant to Rand, and with no other objections to consider, the Court agrees with and adopts the R&R. 19 Finally, even though the R&R did not address whether Thibodeaux’s in forma pauperis status should continue for the purposes of appeal, the Court will address it in the first instance here. The district court may permit indigent litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). “[A]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The determination whether a party can proceed IFP is a “matter within the discretion of the trial court.” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963). The Court here determines that an appeal would be frivolous.

5 Generally, an issue is not frivolous if it has an “arguable basis either in law or in fact.”

6 See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Thibodeaux failed to state any cognizable claims against Defendants, and his claims did not have an arguable basis in law. The Court thus concludes that Thibodeaux may not proceed on appeal with in forma pauperis status.

10 The Court having considered the R&R, Plaintiff’s objections, and the remaining record, does hereby find and order as follows: 12 (1) The R&R is ADOPTED; 13 (2) Defendants’ motion to strike, Dkt. 49, and motion for summary judgment, 14 Dkt. 40, are GRANTED; 15 (3) Plaintiff’s motion for summary judgment, Dkt. 37, is DENIED; 16 (4) Plaintiff’s in forma pauperis status is REVOKED for the purposes of 17 appeal; and 18 (5) The Clerk shall enter a JUDGMENT and close the case.

19 Dated this 11th day of April, 2022.

A BENJAMIN H. SETTLE United States District Judge