United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable David
W. Christel, United States Magistrate Judge (Dkt. 50),
Plaintiff Tobin Sather's (“Sather”)
objections to the R&R (Dkt. 52), and Sather's motion
for extension of time (Dkt. 51).
January 22, 2018, Judge Christel issued the R&R
recommending that the Court grant Defendants Rahn Doty,
Lannie Gray, James Key, Thomas Orth, and Bernard Warner's
(“Defendants”) motion for summary judgment on
Sather's federal claims and decline to exercise
supplemental jurisdiction over Sather's state law claims.
Dkt. 50. On February 7, 2018, Sather filed a motion for
extension of time to file objections and his objections.
Dkts. 51, 52. The Court grants the motion for extension of
time and will consider the objections. On February 16, 2018,
Defendants responded to Sather's objections. Dkt. 53 The
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
case, Sather asserts four major objections to the R&R.
First, Sather argues that Judge Christel should have applied
the “forward looking” standard to his denial of
access claim instead of a “backward looking”
standard. Dkt. 52 at 3-5. In short, courts apply the
“forward looking” standard to potential
litigation and the “backward looking” standard
for claims based on the frustration of current litigation.
Christopher v. Harbury, 536 U.S. 403, 414 (2002).
Sather's claim is based on Defendant Key's
frustration of pending hearings, which are facts that warrant
the “backward looking” standard because the
actions allegedly frustrated ongoing litigation. Sather
provides no authority for the proposition that, because
Defendant Key knew of the hearing before he acted, the Court
should apply the “forward looking” standard to
the claim. Therefore, the Court rejects the objections and
adopts the R&R on this issue.
Sather argues that the application of the “backward
looking” approach amounts to a denial of his
substantive due process rights because he experienced actual
injury at the time of the alleged interference. Sather failed
to submit evidence that Defendant Key's interference
actually prejudiced his claims in his pending litigation,
which is fatal to a denial of access claim. Nevada
Dep't of Corr. v. Greene, 648 F.3d 1014, 1018 (9th
Cir. 2011) (“Actual injury is a jurisdictional
requirement that flows from the standing doctrine and may not
be waived.”) (citing Lewis v. Casey, 518 U.S.
343, 349 (1996)). The only possible due process claim is that
Defendant Key's alleged abuse of power was arbitrary,
egregious, and “shocks the conscience.” Cty.
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The
Court agrees with Sather that the R&R does not address
this claim. The parties, however, have briefed it.
See Dkt. 47 at 15, 48 at 6. Even if Defendant Key
prevented Sather from attending a court hearing via a
specific telephone, Sather has failed to submit any evidence
that this is conscience-shocking behavior. Therefore, the
Court grants Defendants' motion on this potential claim.
Sather argues that the existence of a state post-deprivation
remedy does not justify summary judgment in Defendants'
favor. Dkt. 52 at 7-8. Contrary to Sather's argument, the
existence of a meaningful post-deprivation remedy in state
court does extinguish a claim for violation of federal due
process rights. Hudson v. Palmer, 468 U.S. 517,
533-34 (1984); Parratt v. Taylor, 451 U.S. 527,
537-38 (1981), overruled on other grounds, Daniels v.
Williams, 474 U.S. 327 (1986). Therefore, the Court
adopts the R&R on this issue.
Sather argues that he has met his burden to establish a
material question of fact on his retaliation claim. Dkt. 52
at 8-10. Sather, however, only submitted circumstantial
evidence that the timing of his transfer coincided with the
submission of his grievances. Even if this evidence is
sufficient to shift the burden to Defendants, they have
submitted a declaration establishing that Sather was moved
because of an investigation into the conduct of a staff
member and for his own personal safety. Dkt. 22, ¶ 7.
These are legitimate correctional purposes. Sather fails to
submit any evidence that creates a material question of fact
on this issue and, therefore, fails to meet his burden on
this element in opposition to summary judgment. Rhodes v.
Robinson, 408 F.3d 559, 568 (9th Cir. 2005).
Accordingly, the Court grants Defendants' motion on
Sather's claim, whereas the R&R only recommends
dismissing the claim for failure to state a claim. Dkt. 50 at
the Court having considered the R&R, Sather's
objections, and the remaining record, does hereby find and
order as follows:
Sather's motion for extension of time is
GRANTED, (2) The R&R is
Defendants' motion for summary judgment is
Sather's in forma pauperis status is
REVOKED for purposes of appeal; and
Clerk shall enter a JUDGMENT and ...