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Lewis v. Green

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

February 26, 2018

JUSTIN EDWARD LEWIS, Plaintiff,
v.
ETHAN GREEN, Defendant.

          REPORT AND RECOMMENDATION

          Mary Alice Theiler United States Magistrate Judge.

         INTRODUCTION

         Plaintiff Justin Lewis proceeds pro se and in forma pauperis in this 42 U.S.C. § 1983 civil rights action. Defendant Ethan Green moves for summary judgment and dismissal with prejudice. (Dkt. 22.) Plaintiff did not respond to defendant's motion. The Court, having now considered defendant's motion, the papers filed in support, and the remainder of the record, concludes the motion for summary judgment should be GRANTED and this case DISMISSED with prejudice.

         BACKGROUND

         Prior to his retirement in September 2017, defendant Green worked as a community corrections officer (CCO) for the Department of Corrections (DOC) in Kitsap County. (Dkt. 24, ¶4.) Plaintiff, who is currently incarcerated by the DOC, alleges Green violated his constitutional rights by using the DOC community custody violations process to lock him up and keep him locked up. (Dkt. 6 at 3.) Plaintiff asserts that, for fifteen years, erroneous reports made to and documented by Green, including alleged death threats to Green and his family, have been used against him in DOC hearings, in court, and in his attempts to obtain housing and mental health treatment. He contends Green painted a “violent and reckless picture” of him, causing him to fear he will be killed by law enforcement, and that Green “use[s] his badge and job for his personal [well-being] and this is not fair.” (Id.)

         Green attests he last supervised plaintiff in or around 2010. (Dkt. 24, ¶3.) Green also provided assistance to DOC colleagues following plaintiff's July 7, 2016 arrest for attempting to rob a 7-11 convenience store in Bremerton. (Id., ¶5.) At the time of that arrest, plaintiff was serving under at least two criminal judgments and sentences, and had absconded from community custody supervision. (Dkt. 23, ¶5.) Green utilized the police report addressing the July 2016 arrest to prepare a violation report that was later approved and signed by the assigned CCO. (See Dkt. 24, ¶6, Attach. A & B.) Green also communicated with Kitsap County officials to prevent plaintiff's premature release from Kitsap County Jail prior to resolution of the DOC violation proceedings. (Id., ¶9.)

         The report prepared by Green addresses two violations of conditions of supervision. (Dkt. 24-2 at 3.) In the July 7, 2016 incident, plaintiff “head-butted” a 7-11 employee and ultimately plead guilty to fourth degree assault. (Id.) A May 20, 2016 misdemeanor sentence for domestic violence harassment occurred after plaintiff's father called 9-1-1 because he feared plaintiff was going to punch him. The report describes plaintiff's prior history, including convictions for intimidating a public servant and second degree assault, intentional and causing substantial bodily harm; six serious infractions during confinement; and ten violations during periods of community supervision. It describes the chronological supervision notes as revealing plaintiff's “periods of supervision in the community were a constant struggle for the assigned officers as well as the community mental health case managers tasked with supporting [him], ” and states:

I sum up LEWIS's last six to eight years in this manner in order to paint a picture of a habitual offender and a persistent violator. His first reaction to not getting his way is to become verbally and physically threatening by using his physical size to intimidate. I have attached several pages of case notes with examples of him threatening a number of DOC staff. In one of his verbal tirades he threatens harm to the assigned CCO, his wife, mother, grandmother and children.

(Id. at 3-4.) An attachment to the report identifies Green as the assigned CCO previously threatened by plaintiff. (Id. at 16.) The report also describes plaintiff as an “extraordinarily dangerous man[, ]” whose “risk in the community seems to be escalating.” (Id. at 4.) The report recommends all available time be revoked and plaintiff returned to prison, with any sanction time to be served consecutive to any other matter.

         Plaintiff was taken back into custody after his July 2016 arrest and, at the time of filing this lawsuit in February 2017, was incarcerated at the Monroe Correctional Complex Special Offender Unit. (See Dkt. 4 at 2.) Following a July 2017 release to community custody, plaintiff failed to report to his assigned CCO. (Dkt. 14, ¶¶3-4.) He was arrested in August 2017 and, since that time, has been incarcerated at either the Kitsap County Jail or in a DOC facility. (Dkt. 23, ¶7.)

         DISCUSSION

         Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 325 (1986). In opposing the motion, the nonmoving party may not rest upon mere allegations or denials in the pleadings, unsupported conjecture, or conclusory statements. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). The nonmoving party must set forth specific facts demonstrating a genuine issue of fact for trial, see Fed. R. Civ. P. (c)(1), and must present significant and probative evidence to support his or her claims, Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all inferences in favor of the nonmoving party. Id.

         Defendant Green argues the statute of limitations precludes plaintiff's suit for any alleged actions during the time he served as plaintiff's assigned CCO, and that plaintiff fails to demonstrate any action within the limitations window deprived plaintiff of a constitutionally protected right. Defendant also asserts his entitlement to qualified immunity. For the reasons set forth below, the Court finds defendant entitled to summary judgment.

         A. Statute ...


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