1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RONALD L. BASKETT,

Plaintiff,

v.

BRIAN M. AGAR,

Defendant.

Case No. C05-5743FDB

REPORT AND

 RECOMMENDATION 

 

 NOTED FOR:

 March 24th, 2006

This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge

pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and

MJR 4. The court has reviewed Mr. Baskett’s complaint and finds this action fails to state a claim. Plaintiff

seeks damages against a Washington State tort claims analyst for denial of his claim and the way he was

treated. There is no right to a tort claims process and denial of a claim is a prerequisite to the filing of a state

tort action against the state or an employee of the state. There is not a constitutional issue. Accordingly, this

action should be dismissed prior to service with the dismissal counting as a strike pursuant to 28 U.S.C. § 1915

(g).

FACTUAL BACKGROUND

This action deals with defendant Agar investigating a tort claim filed by plaintiff. The claim dealt with

Case 3:05-cv-05743-FDB Document 10 Filed 02/23/06 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 2

the Department of Corrections taking funds from plaintiff. (Dkt. # 9). Mr. Agar sent the tort claim to the

accounting office at the prison where plaintiff was housed. Plaintiff takes exception to that action and seeks to

portray the action as “double jeopardy” because the accounting office took the money in the first place. 

DISCUSSION

A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d

1221, 1228 (9th Cir. 1984). When a complaint is frivolous, fails to state a claim, or contains a complete

defense to the action on its face, the court may dismiss an in forma pauperis complaint before service of

process under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 575 (9th Cir. 1987) (citing Franklin

v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)).

Historically states and state employees enjoyed sovereign immunity from suit. The state of

Washington has partially waived it’s immunity and allows state court actions for tort damages against the

state and its employees. This partial waiver does not extend to claims brought under 42 U.S.C.§ 1983. 

Edgar v. State of Washington, 92 Wn. 2d 217 (1979) cert. denied, 444 U.S. 1077 (1980). 

The state set forth certain prerequisites to bringing a state tort action. RCW 4.92.110 mandates

that prior to filing an action against the state a person must exhaust the states tort claim process. Plaintiff

has no federal right to file a state tort action and he has no constitutional right to have his tort claim

handled in any particular manner. His claim of double jeopardy fails as a matter of law. Double jeopardy is

a criminal law concept that has no application in a civil matter such as this. The concept precludes trying a

person twice for a crime if they have once been acquitted. This action fails to state a claim.

CONCLUSION

The Court should dismiss this action for failure to state a claim. Dismissal on this ground would

count as a strike pursuant to 28 U.S.C. § 1915 (g). A proposed order accompanies this Report and

Recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ.

P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v.

Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to

set the matter for consideration on March 24th, 2006 as noted in the caption. 

Case 3:05-cv-05743-FDB Document 10 Filed 02/23/06 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION

Page - 3

DATED this 22nd day of February, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:05-cv-05743-FDB Document 10 Filed 02/23/06 Page 3 of 3