United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
J. BRYAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation of Magistrate Judge David W. Christel. Dkt.
61. The Court has reviewed the Report and Recommendation,
objections, other pleadings filed related to the Report and
Recommendation, and the remaining file.
April 28, 2016, Plaintiff, acting pro se, filed this
case pursuant to 42 U.S.C. § 1983. Dkts. 1 and 4. In his
Second Amended Complaint, Plaintiff alleges that while he was
a pre-trial detainee in the Pierce County, Washington jail,
Defendants Lieutenant Charla James-Hutchinson and Sergeant
Jackie Caruso violated his due process rights when they
revoked his good time credits and placed him in
administrative segregation. Dkt. 99. He asserts that
Defendants Sheriff Paul Pastor and Captain Marvin Spencer
violated his first amendment rights when they created a
policy which denied Plaintiff (and all prisoners in
administrative segregation) receipt of incoming publications,
including subscription magazines and books. Dkt. 99.
pending is a Report and Recommendation, which recommends the
Court summarily dismiss Plaintiff's claims for violation
of his due process rights related to his being placed in
administrative segregation and for violation of his first
amendment rights in connection with the policy restricting
publications to inmates in administrative segregation. Dkt.
155. The Report and Recommendation recommends denial of the
Defendants' motion for summary dismissal of
Plaintiff's due process claim relating to the revocation
of his good time credits, advising there are issues of fact
as to whether Defendants offered Plaintiff an opportunity to
present witnesses at the hearing he was given. Id.
It recommends denial of Plaintiff's motion for summary
judgment in its entirety. Id.
object to the portion of the Report and Recommendation that
recommends denial of their motion for summary judgment on the
due process claim relating to the revocation of good time
credits. Dkt. 156. Defendants assert that aside from
Plaintiff's bare assertion that he was not permitted to
call witnesses, he makes no factual showing. Id.
Accordingly, Defendants assert that the motion should be
granted and the claim also dismissed. Id.
also filed objections to the Report and Recommendation with
attachments. Dkt. 158. Plaintiff's pleadings are hand
written, with the lines very close together, and are very
difficult to read. Id. Some of the handwritten
portions are under the CM-ECF header in violation of Local
Rule W.D. Wash. 10 (e)(1), which requires that no less than
three inches of space be left at the top of a
pleading. In any event, Plaintiff asserts that the
magistrate judge erred in not granting him summary judgment
on all his claims. Id., at 2. As to his due process
claim regarding good time credits, Plaintiff maintains that
Defendants did not carry their burden; asserting that
“nowhere on the loss of good time notification form
[does it provide] that Plaintiff will be allowed to present
witnesses or witness statements.” Id. He again
asserts that he was not allowed to call witnesses or witness
statements. Id. He argues that his motion for
summary judgment on all his claims should have been granted.
Report and Recommendation (Dkt. 155) should be renoted.
Defendants' objections are well taken. They point out
that Plaintiff failed to make specific factual statements
that show (1) there were actually any witnesses that he
intended to call, (2) if so, the identity of those witnesses,
(3) or any statements of a named witnesses Plaintiff either
had, or intended to obtain. Plaintiff should be given one
more opportunity to elaborate on this portion of his due
process claim relating to the revocation of good time
is again notified that the Defendants seek summary dismissal
of Plaintiff's case pursuant to Fed.R.Civ.P. 56.
Plaintiff is further notified that if one of the parties
files a motion for summary judgment pursuant to Fed.R.Civ.P.
56, the opposing party must respond, by affidavits or as
otherwise provided in Rule 56, and must set forth specific
facts showing that there is a genuine issue for trial. In the
event defendant files a motion for summary judgment by which
it seeks to have his case dismissed, Plaintiff is notified
that summary judgment under Rule 56 of the Federal Rules of
Civil Procedure will, if granted, end his case.
tells Plaintiff what he must do in order to oppose a motion
for summary judgment. Generally, summary judgment must be
granted when there is no genuine issue of material fact-that
is, if there is no real dispute about any fact that would
affect the result of Plaintiff's case, the party who
asked for summary judgment is entitled to judgment as a
matter of law, which will end Plaintiff's case. When a
party the Plaintiff is suing makes a motion for summary
judgment that is properly supported by declarations (or other
sworn testimony), Plaintiff cannot simply rely on what his
complaint says. Instead, Plaintiff must set out specific
facts in a verified complaint, declarations, depositions,
answers to interrogatories, or authenticated documents, as
provided in Rule 56 (e), that contradict the facts shown in
the Defendants' declarations and documents and show that
there is a genuine issue of material fact for trial. If
Plaintiff does not submit his own evidence in opposition,
summary judgment, if appropriate, may be entered against him.
If summary judgment is granted, Plaintiff's case will be
dismissed and there will be no trial. See Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998).
Plaintiff does not file a response providing the appropriate
documentation as described above, this case may be dismissed
and there will be no trial. Plaintiff is further notified
that pursuant to Western District of Washington R. Civ. P.
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.”
Plaintiff should be given until December 29, 2017 to file any
supplemental pleadings, if any. The Report and Recommendation
should be renoted to December 29, 2017.
Report and Recommendation (Dkt. 155) IS
RENOTED for December 29, 2017; and
Clerk is directed to send uncertified copies of this Order to
Magistrate Judge David W. Christel, all counsel of record,
and to any party ...