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 Plaintiff's Motion
to Request Copy of the Declaration of Robert Dean Griffin
(Dkt. 163), Plaintiff's “Motion to Strike/Remove
Fraudulent Document Not Filed by Plaintiff Titled:
Declaration of Robert Dean Griffin” (Dkt. 161), and the
Report and Recommendation of Magistrate Judge David W.
Christel (Dkt. 155). The Court has reviewed the pleadings
filed regarding the motions, 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 (twice) 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 hearings he was given. Id.
It recommends denial of Plaintiff's motion for summary
judgment in its entirety. Id. The facts and
procedural history are in the Report and Recommendation (Dkt.
155) and are adopted here by reference.
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. Id.
December 6, 2017, the Report and Recommendation (Dkt. 155)
was renoted, by order, to give Plaintiff one more opportunity
to elaborate on his due process claim related to the
revocation of good time credits. Dkt. 160. In that order, the
undersigned noted that Defendants' objections were well
taken. Id. It further noted that the Defendants
“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.”
December 1, 2017, a declaration was filed by Robert Dean
Griffin, a prisoner at the Washington State Penitentiary.
Dkt. 159. On December 8, 2017, Plaintiff filed a Motion to
Request Copy of the Declaration of Robert Dean Griffin (Dkt.
163) and a “Motion to Strike/Remove Fraudulent Document
Not Filed by Plaintiff Titled: Declaration of Robert Dean
Griffin” (Dkt. 161). In his motion to strike, Plaintiff
states that he did not file Mr. Griffin's declaration and
that Mr. Griffin is not a party to this case. Dkt. 161.
Accordingly, Plaintiff moves to strike the declaration (Dkt.
161) and moves for a copy be sent to him (Dkt. 163).
December 15, 2017, Plaintiff filed a supplemental
response/objection and declaration. Dkts. 164 and 165. In
these pleadings, (as it relates to his due process claim
regarding the two revocations of good time credits) Plaintiff
again asserts that Defendants did not afford him an
opportunity to call witnesses in his defense at either
hearing. Dkts. 164 and 165. He states in his supplemental
declaration, that on January 8, 2016, he “requested
witness statements from inmate[s] Brandon Evans and Mantez
Buck, ” and Defendants James-Hutchison and Caruso told
him he that he was “not allowed to have witness or
witness statements at a due process hearing per Captain
Spencer and jail policy.” Dkt. 165, at 2. He further
claims that “on the June 16, 2016 hearing [he]
requested witness statements from inmate[s] Anthony Cloud and
Brandon Evans” and was again told that he was
“not allowed to have witness or witness statements at a
due process hearing.” Dkt. 165, at 2. Plaintiff asserts
that this is contrary to the statement in the Supplemental
Declaration of Defendant James-Hutchson, which stated:
At the June 16, 2016 proceeding in a short exchange with the
panel members, inmate Denton began to appear to complain that
he wasn't being afforded his right to call witnesses. We
attempted to clarify with him what he meant and if he wanted
to call any witnesses, however, he became hostile, began
swearing at us, and ultimately refused to communicate with us
any further. He never identified any witnesses that he wished
Dkt. 165 (quoting Dkt. 151, at 6). Plaintiff also complains
that the Pierce County Jail form that he was given before the
hearing did not inform him of his right to call witness/get
witness statements, unlike the form used by the Washington
State Department of Corrections. Dkts. 164 and 165.
opinion will first address Plaintiff's motion, then turn
to consideration of the Report and Recommendation, and
lastly, discuss the case schedule.
Motion for a Copy of the Declaration of Robert Dean ...