01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES DEAN WILKS,

Plaintiff,

v.

JOHN LEIMBACH, et al.,

Defendants.

____________________________________

)

)

)

)

)

)

)

)

)

)

Case No. C06-871-JLR-JPD

REPORT AND RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff James Dean Wilks, a former inmate at the King County Correctional Facility,

proceeds pro se and in forma pauperis in this amended 42 U.S.C. § 1983 civil rights action

against King County Corrections Officers John Leimbach and Leander Glenn. Dkt. No. 8; see

also Dkt. No. 22 (dismissing certain defendants). Plaintiff’s amended complaint makes

excessive force arguments under the Eighth Amendment, unlawful search and seizure

arguments under the Fourth Amendment, and also advances a retaliation claim under the First

Amendment. See Dkt. No. 8. The present matter comes before the Court on defendant

Leimbach’s Motion for Partial Summary Judgment. Dkt. No. 26. Because plaintiff has failed

to respond to this motion, it is treated as uncontested motion pursuant to Local Rule CR

7(b)(2). After careful consideration of the motion, governing law, and the balance of the

record, the Court recommends that defendant’s the motion be GRANTED.

Case 2:06-cv-00871-JLR Document 32 Filed 11/28/07 Page 1 of 3
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 2

II. DISCUSSION

A. Federal Rule of Civil Procedure 56

“Claims lacking merit may be dealt with through summary judgment” under Rule 56 of

the Federal Rules of Civil Procedure. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). 

Summary judgment “shall be entered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). 

Here, the defendants filed a detailed motion outlining the arguments of non-exhaustion

of state law post-deprivation remedies sufficient to defeat plaintiff’s Fourth Amendment attack

against defendant Leimbach, as well as the absence of a causal connection and the presence of

a legitimate correctional purpose sufficient to defeat plaintiff’s First Amendment claim against

defendant Leimbach. See Hudson v. Palmer, 468 U.S. 517, 533-36 (1984) (requiring

exhaustion of state post-deprivation remedies before pursuing § 1983 suit); Rhodes v.

Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (outlining necessary elements of a viable First

Amendment retaliation claim). The defendants’ brief was supported by the declarations of

John Leimbach (Dkt. No. 28), Roberta Johnson (Dkt. No. 29), and David Eldred (Dkt. No.

27). The defendants do not seek summary judgment with regard to plaintiff’s excessive force

claims, but rather, limit their motion to plaintiff’s claim that defendant Leimbach violated

plaintiff’s First and Fourteenth Amendment rights by removing plaintiff’s aviation calendar

from his cell on or about June 6, 2006. Dkt. No. 26 at 2.

The defendants’ summary judgment papers satisfy the burden of Rule 56(c) by

establishing that the nonmovant lacks the essential elements needed to support his case, much

less satisfy his burden of persuasion at trial. This failure of proof “renders all other facts

immaterial,” creating no genuine issue of fact and thereby entitling the defendants to summary

judgment on the issues raised. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

Case 2:06-cv-00871-JLR Document 32 Filed 11/28/07 Page 2 of 3
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 3

Furthermore, plaintiff has failed to respond to the defendants’ motion for partial summary

judgment. Under Local Rule CR 7(b)(2) “[i]f a party fails to file papers in opposition to a

motion, such failure may be considered by the court as an admission that the motion has

merit.” By neglecting to respond to the arguments made in defendants’ motion, plaintiff has

failed to meet his burden of moving beyond the pleadings to, in the words of the rule, “set forth

specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). As a

result, defendants’ motion for partial summary judgment should be granted with respect to the

specific issues identified by the defendants’ motion.

B. Pretrial Scheduling Order Is Stricken

Because defendants’ partial motion for summary judgment should be granted, it is

appropriate that the pretrial scheduling order in this case (Dkt. No. 25) be stricken, and the

parties shall instead provide the Court with a joint pretrial statement or a status report no later

than December 21, 2007.

II. CONCLUSION

For the foregoing reasons, the Court recommends that defendants’ Motion for Partial

Summary Judgment (Dkt. No. 26) be GRANTED. Consequently, the pretrial scheduling order

in this case (Dkt. No. 25) is STRICKEN, and the parties shall provide the Court with a joint

pretrial statement or a status report no later than December 21, 2007. A proposed order

accompanies this Report and Recommendation. 

DATED this 28th day of November, 2007.

AJAMES P. DONOHUE

United States Magistrate Judge 

Case 2:06-cv-00871-JLR Document 32 Filed 11/28/07 Page 3 of 3