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Osborne v. Clark County Sheriff's Office

United States District Court, W.D. Washington, Tacoma

November 29, 2017

LUCAS OSBORNE, Plaintiff,
v.
CLARK COUNTY SHERIFF'S OFFICE, et al., Defendants.

          REPORT AND RECOMMENDATION

          David W. Christel United States Magistrate Judge

         Noting Dated: December 15, 2017 The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Plaintiff Lucas Osborne, proceeding pro se and in forma pauperis, initiated this civil rights action on April 22, 2016. Presently pending before the Court is Defendants' Motion for Summary Judgment (“Defendants' Motion”). Dkt. 33.

         Plaintiff alleges that his First and Fourteenth Amendment protections were violated when Defendants suspended his telephone privileges and when Defendants tampered with both his personal and legal mail. However, the suspension of his telephone privileges was a reasonable security limitation that did not violate his First Amendment rights. Further, Plaintiff has no liberty interest in his telephone privileges making the Fourteenth Amendment inapplicable here. Finally, he has not exhausted his administrative remedies with regard to his mail tampering claims. Therefore, the Court recommends that Defendant's Motion be granted and Plaintiff's action be dismissed.

         BACKGROUND

         Plaintiff is a former inmate who has been released from custody since filing his original complaint. Dkt. 43. He was housed at the Clark County Jail when he filed his complaint. Dkt. 9. Plaintiff filed a Motion to Amend Complaint (Dkt. 7), which the Court granted (Dkt. 12). Plaintiff subsequently filed an Amended Complaint alleging his First, Sixth, and Fourteenth Amendment rights were violated while he was housed at the Clark County Jail. Dkt. 13. He claimed his telephone privileges were suspended for 75 days and, during those 75 days, the only person he was allowed to contact by phone was his attorney. Id. at 3. Plaintiff also alleges Judge Robert Lewis, a Clark County Superior Court Judge, violated his constitutional rights when he refused to lift the suspension on Plaintiff's telephone privileges. Id.

         Defendants filed Defendants' Motion, claiming the undisputed facts did not amount to any constitutional violations and Defendants were therefore entitled to judgment as a matter of law. Dkt. 33. Plaintiff did not file a Response and Defendants filed a Reply, noting that though a failure to respond by Plaintiff is not an admission that Defendants' Motion has merit, it allows the Court to accept Defendants' uncontradicted factual allegations. Dkt. 42 at 2 (citing John v. City of El Monte, 505 F.3d 901, 912 (9th Cir. 2007)).

         STANDARD OF REVIEW

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, “the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A party asserting a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). All facts and reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013) (citing Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997).

         As both parties move for summary judgment, both parties have the initial burden to demonstrate no genuine issue of material fact remains in this case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir.2010). The movant “always bears the initial responsibility of informing the district court of the basis for its motion, ” and identifying those portions of the record, including pleadings, discovery materials, and affidavits, “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. Mere disagreement or the bald assertion stating a genuine issue of material fact exists does not preclude summary judgment. California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). A “material” fact is one which is “relevant to an element of a claim or defense and whose existence might affect the outcome of the suit, ” and the materiality of which is “determined by the substantive law governing the claim.” T.W. Electrical Serv., Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         Mere “[d]isputes over irrelevant or unnecessary facts, ” therefore, “will not preclude a grant of summary judgment.” Id. Rather, the nonmoving party “must produce at least some ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 290); see also California Architectural Building Products, Inc., 818 F.2d at 1468 (“No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.”). In other words, the purpose of summary judgment “is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990). “If a party fails to properly support an assertion of fact or fails to properly address another party's ...


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