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AMENDED REPORT AND RECOMMENDATION

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL A. BURNHART,

Plaintiff,

v.

COMMANDER REED HOLTGEERTS,

Defendant.

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CASE NO. C06-0816-RSL-MAT

AMENDED REPORT

AND RECOMMENDATION

INTRODUCTION

Plaintiff is a pretrial detainee who is proceeding pro se in this civil rights action pursuant

to 42 U.S.C. §1983. For the reasons stated below, the court recommends that plaintiff’s second

amended complaint be filed.

BACKGROUND

On June 12, 2006, plaintiff submitted a complaint challenging the alleged policy of the

King County Regional Justice Center (“RJC”) of recording the telephone conversations of

detainees such as himself. (Dkt. #1). Plaintiff named the commander of the RJC, Reed

Holtgeerts, as the sole defendant in this action.

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AMENDED REPORT AND RECOMMENDATION

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The undersigned United States Magistrate Judge screened the complaint pursuant to 28

U.S.C. § 1915A, and found that the complaint did not refer to any federal statute or provision of

the federal Constitution, and thus failed to state a cognizable claim under § 1983. (Dkt. #12 at

1). Rather than dismiss the complaint, the Court issued an Order granting plaintiff 30 days in

which to file an amended complaint.

On July 12, 2006, plaintiff filed an amended complaint. (Dkt. #13). In the amended

complaint, plaintiff asserted in a conclusory fashion that the monitoring of telephone conversations

at the RJC violated the United States Constitution, but then in an attached memorandum, plaintiff

referred solely to Washington state law as the basis of his claim. Because the amended complaint

did not cure the deficiencies in the original, and because plaintiff had been given a chance to

amend, the Court issued a Report and Recommendation (“R&R”) recommending dismissal of the

lawsuit for failure to state a clam for relief under § 1983. (Dkt. #14). Plaintiff was advised that

the deadline for objections to the R&R was August 10, 2006. (Dkt. #14, Attachment #1).

On July 27, 2006, plaintiff filed a single-page document entitled “Plaintiff’s Objections to

Recommendations [sic] Requesting additional time to file objections.” (Dkt. #15). On August

8, 2006, plaintiff filed objections to the R&R. (Dkt. #17). The “objections,” however, consisted

only of a second amended complaint, with no reference to the pending R&R. On September 6,

2006, the Honorable Robert S. Lasnik, the District Judge assigned to this case, referred plaintiff’s

second amended complaint to the Court to review and issue an amended R&R. (Dkt. #18). The

Order of Reference also states that the Court may consider, as part of its review, plaintiff’s

pending motion for an extension of time to file objections (Dkt. #15) and the objections

themselves. (Dkt. #17).

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1

 In addition, the court should decline to exercise pendent jurisdiction over plaintiff’s

claims based upon state law, which assert that the recording of inmates’ telephone conversations

violates several Washington statutes and regulations. The state law claims raise “novel or

complex” issues that would best be resolved in the first instance by the state court, and should

therefore be dismissed. See 28 U.S.C. § 1367(c)(1); see, generally, Executive Software v. U.S.

District Court, 24 F.3d 1545 (9th Cir. 1994).

AMENDED REPORT AND RECOMMENDATION

PAGE -3

DISCUSSION

At the outset, the Court notes that plaintiff does not challenge any portion of the

previously-issued R&R in his objections. Rather, plaintiff’s objections consist solely of the second

amended complaint (“second amended complaint” or “complaint”) itself, which plaintiff states “is

to serve as Plaintiff’s formal objection to the courts [sic] report and recommendation.” (Dkt. #17

at 1). Thus, by not objecting to any specific part of the R&R, it appears that plaintiff tacitly agrees

with the Court’s conclusion that the first amended complaint failed to state a cause of action under

§ 1983. Rather, it appears that plaintiff wishes to offer a substitute amended complaint that cures

the deficiencies of its predecessor. Accordingly, the Court has examined the second amended

complaint to see if it raises a cause of action cognizable under § 1983.

The complaint presents a litany of alleged constitutional violations (Dkt. #17 at 2);

however, it does not describe the violations in any detail, nor does plaintiff present any argument

or cite any cases that would provide a legal basis for these claims. Therefore, plaintiff’s attempt

to raise myriad constitutional claims fails and these claims should be dismissed.1

The complaint does raise a new claim, however, which appears to be based upon a

violation of a federal statute. Plaintiff asserts that the recording of inmates’ telephone calls at the

RJC violated the federal Wiretap Act, 18 U.S.C. § 2510 et seq. This statute has served as the

basis for § 1983 actions in other courts. See, e.g., In Re State Police Litigation, 888 F. Supp.

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AMENDED REPORT AND RECOMMENDATION

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1235, 1261-68 (D.Conn. 1995). While the Court expresses no view at this time as to the merits

of plaintiff’s claim under the Wiretap Act, it appears that for the purpose of surviving an initial

screening under § 1915A, the complaint states a cause of action under § 1983 that may proceed.

Whether this action should proceed, however, given the procedural history of the case, is

a distinct question that should be examined separately. Plaintiff’s original complaint was deficient

and plaintiff was given a chance to amend the complaint. He failed to do so in a manner

satisfactory to the Court, and the Court recommended dismissal. Now plaintiff raises an entirely

new legal theory, based upon the Wiretap Act, in an effort to save this cause of action. The only

excuse that plaintiff offers for not raising the claim earlier appears to be the assertion that he has

only recently been able to research federal case law. (Dkt. #15).

Plaintiff offers no evidence in support of the assertion that his research was limited to state

law until recently. But in light of plaintiff’s status as a pro se litigant and the general principle that

decisions on the merits are to be favored over dismissals based on technicalities, see Foman v.

Davis, 371 U.S. 178, 181 (1962), the Court recommends that plaintiff be granted leave to amend

his complaint a second time, and that the second amended complaint that he has submitted be filed.

CONCLUSION

Based on the foregoing reasons, the Court recommends (1) that plaintiff’s second amended

complaint be filed; (2) that the constitutional and state law claims therein be dismissed; and (3) that

the claim under the federal Wiretap Act be allowed to proceed. In addition, plaintiff’s pending

motion for an extension of time to file objections, as well as the Court’s previous R&R, should

/ / /

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AMENDED REPORT AND RECOMMENDATION

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be stricken as moot. A proposed Order is attached.

DATED this 15th day of September, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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