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Summers v. Glebe

United States District Court, Western District of Washington, Tacoma

April 2, 2015

DUANE LEE SUMMERS, Plaintiff,
v.
PAT GLEBE, GLEN DAVIS, JAMES ALIF, DAN ANDERSON, BEV TISLER, GINA WHITE, KEN THORNOCK, DANIEL TAYLOR, SALLY THEISSON, DAVID JENNINGS, CHARLES BARROW, C ROHRER, D MICHELBRINK, SHEPPARD, DAN PACHOLKE, BRUNER, BURROUGH, K MCTARSNEY, D ZIBERT, M CALDWELL, TOM JOHNSON, JEANIE MILLER-JACKSON, TAMARA J ROWDEN, IDSO, LANOUE, Defendants.

ORDER: (1) DENYING MOTION TO APPOINT COUNSEL; (2) ADOPTING REPORT AND RECOMMENDATION; AND (3) DISMISSING CASE

ROBERT J. BRYAN United States District Judge

This matter comes before the Court on United States Magistrate Judge J. Richard Creatura’s Report and Recommendation (Dkt. 6) and on plaintiff’s Motion to Appoint Counsel (Dkt. 7). The Court has considered plaintiff’s motion, the Report and Recommendation and objections thereto, and the file herein.

Plaintiff, a state prisoner proceeding pro se, filed a 42 U.S.C. § 1983 civil rights action, alleging that (1) the named defendants wrongfully terminated him from his correctional industries job at the Stafford Creek Corrections Center “with out due process or evidence”; (2) some of the defendants slandered and defamed him by accusing him of dumping water on the floor at his work area; and (3) one of the defendants retaliated against plaintiff, as allegedly evidenced by the defendant’s statement that “[he] did not want [plaintiff] to work for Correctional Industries.” Dkt. 5.

Plaintiff requests that the Court issue an injunction awarding him a “Labor and Industries Certificate at proficiency as a [Computer Numerical Control] operator and programmer” (Dkt. 5, at 4), the certificate he allegedly would have had the opportunity to earn had he not been fired from the job. In addition, plaintiff requests that the Court award him damages, including monetary damages for lost wages. Dkt. 5, at 4.

On February 23, 2015, Magistrate Judge Creatura issued a Report and Recommendation, recommending that the Court dismiss plaintiff’s action at screening for failure to state a claim and revoke his in forma pauperis status on appeal. Dkt. 6.

More specifically, Magistrate Judge Creatura concluded that (1) plaintiff was not entitled to due process for termination of his employment because he had no constitutional right to the job; (2) plaintiff’s retaliation claim fails as a matter of law because plaintiff has failed to show that he engaged in any protected conduct; and (3) plaintiff’s defamation and slander claim fails as a matter of law because plaintiff’s alleged injury was neither inflicted in connection with nor caused the denial of any federally protected right. Dkt. 6.

In response, plaintiff argues that his “protected conduct and liberty interest” is the “state-created liberty interest in [receiving] the Labor and Industries certificate of proficiency”; that retaliation occurred when one of the defendants submitted a written statement recommending that plaintiff be terminated (Dkt. 1-1, at 10) and when plaintiff was allegedly denied access to the evidence pertinent to his termination; and that such a denial violated also his due process. Dkt. 8. In addition, plaintiff appears to assert a claim for “failure to investigate the staff misconduct.” Id., at 3.

The Court has reviewed the record de novo and agrees with Magistrate Judge J. Richard Creatura’s analysis and conclusion, with the addition of the following analysis.

a. Plaintiff’s due process claims

A prisoner has no independent constitutional right to employment. See Baumann v. Arizona Dep't of Corr., 754 F.2d 841, 844 (9th Cir. 1985) (finding no constitutionally protected interest in a work furlough program). Accordingly, plaintiff may avail himself of due process protection only if the state has created a constitutionally protected interest in his correctional industries job by imposing substantive limitations on the exercise of official discretion. See Id., at 841 (citing Hewitt v. Helms, 459 U.S. 460, 470–71 (1983)). The state must express these limitations in language of “an unmistakably mandatory character.” Hewitt, 459 U.S. at 471.

Here, plaintiff has failed to show that Washington State has created a constitutionally protected interest in his correctional industries job. RCW 72.09, the only statute plaintiff has cited, vests power in the Department of Corrections to provide for a comprehensive inmate work program. See RCW 79.09.100. This statute appears to grant the Department of Corrections broad discretion in providing inmates with employment. Plaintiff has failed to show that Washington State so substantively limits the exercise of the Department of Corrections’ discretion as to invoke any constitutional protection. Accordingly, plaintiff’s due process claim fails as a matter of law.

b. Plaintiff’s retaliation claim under federal law

To establish a First Amendment retaliation claim, a prisoner must show that (1) a state actor took some adverse action against the prisoner (2) because of (3) the prisoner's protected conduct, and that such action (4) chilled the prisoner’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

Here, plaintiff has failed to show these five elements. In his complaint, plaintiff appears to argue that retaliation, by way of termination, occurred because one of the defendants “did not want” plaintiff to continue his employment. Plaintiff has not shown that he ...


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