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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CALVIN ROUSE,

Plaintiff,

v.

DOUG WADDINGTON et al.,

Defendants.

Case No. C06-5183RJB

ORDER ADOPTING REPORT

AND RECOMMENDATION

AND RE-REFERRING CASE TO

MAGISTRATE JUDGE

This matter comes before the Court on the Report and Recommendation of United States

Magistrate Judge J. Kelley Arnold. Dkt. 56. The Court has considered the Report and

Recommendation (Dkt. 56), Plaintiff’s Objections to the Report and Recommendation (Dkt. 57), 

and the file herein. 

Originally filed in February of 2006, Plaintiff brings this civil rights action pursuant to 42

U.S.C. § 1983. Dkt. 6-3. On July 6, 2006, the complaint in this matter was dismissed without

prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994) because Plaintiff sought return of

360 days of his good conduct time. Dkt. 13-1. Plaintiff was granted leave to amend his complaint,

but was warned not to raise issues previously dismissed. Dkt. 16. Plaintiff filed an amended

complaint. Dkt. 19. Plaintiff attempted to gain leave to amend his complaint on additional

occasions, and leave was denied. Dkts. 25, 27, 38, and 41. Due to the fact that the case was filed

several months ago, Plaintiff was warned not to attempt to add additional claims or defendants. Id. 

In March of 2007, Defendants filed a Motion for a More Definite Statement. Dkt. 42. The Motion

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ORDER

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was granted, and Plaintiff filed a Second Amended Complaint. Dkt. 49. Despite being warned not

to add claims which have been dismissed or new claims and/or defendants, Plaintiff’s proposed

Second Amended Complaint contains a claim regarding the loss of his good time credits, and new

claims and defendants. Dkt. 49. 

Defendants moved for involuntary dismissal of the Second Amended Complaint due to

Plaintiff’s failure to follow the Court’s orders. Dkt. 50. Judge Arnold filed a Report and

Recommendation on June 19, 2007, recommending that Defendants’ motion be granted, in part, and

the new claims and defendants be dismissed with prejudice. Dkt. 56. Judge Arnold recommends

that the claims relating to the disciplinary hearing and loss of good time be again dismissed without

prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Id. Judge Arnold recommends that

the Defendants’ motion be denied as to Plaintiff’s equal protection claim, and the two Eighth

Amendment claims. Id. 

Judge Arnold’s Report and Recommendation should be adopted. Pursuant to Fed. R. Civ. P.

41(b), Plaintiff’s new claims and defendants should be dismissed with prejudice. Plaintiff filed this

matter several months ago and continually attempts to add claims and defendants, changing the

nature of the complaint. In light of the procedural posture of the case, Plaintiff has been warned

against attempting to add new defendants or claims. Dkt. 43. Plaintiff has continued to ignore the

Courts’ orders and as a sanction for failing to comply with the orders of the Court, the new claims

and new defendants in the Second Amended Complaint should be dismissed with prejudice. 

Plaintiff’s claims regarding the disciplinary hearing and loss of good time have been dismissed

without prejudice as barred by Heck on at least two occasions. Dkt. 16 and 41. Those claims should

again be dismissed without prejudice. 

As stated in the Report and Recommendation, the case should go forward on Plaintiff’s equal

protection claim and the two Eighth Amendment claims. 

Therefore, it is ORDERED that the Report and Recommendation (Dkt. 56) is ADOPTED. 

This matter is RE-REFERRED to the Hon. J. Kelley Arnold to conduct further proceedings

consistent with this order and the order of reference. 

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The Clerk is directed to send copies of this Order to Plaintiff, to all counsel of record, and to

the Hon. J. Kelley Arnold.

DATED this 16th day of July, 2007.

ARobert J Bryan

United States District Judge

 

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