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Morton v. Johanson

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

June 13, 2018

CECIL MORTON, Plaintiff,
v.
VANESA JOHANSON, et al., Defendants.

          ORDER ON REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN, UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on the Report and Recommendation on Cross Motions for Summary Judgment of United States Magistrate Judge Theresa Fricke. Dkt. 58. The R&R considered cross motions for summary judgment by Plaintiff and Defendants. Dkts. 44, 46. The Court has considered the R&R, Plaintiff's Objections (Dkt. 64), Defendants' Response (Dkt. 69), Plaintiff's Reply (Dkt. 73), the underlying motions (Dkts. 44, 46), and the remainder of the file herein.

         1. Factual Background.

         The facts are detailed and well-substantiated by the R&R, see Dkt. 58 at 1-5, which the Court adopts, but the Court provides the following as background to reaching the merits of Plaintiff's Objections.

         The underlying incident for Plaintiff's §1983 Due Process claims began at an April 5, 2011 in-custody disciplinary hearing, when Department of Corrections (DOC) sanctioned Plaintiff for assaulting his wife, Sharyn Morton, during a visitation. In finding that Plaintiff committed the “711 infraction, ” a number derived from the inmate disciplinary code, DOC: (1) revoked forty-five (45) days of good time credit; (2) sanctioned Plaintiff to nine months of administrative segregation; and (3) revoked ninety (90) days of visitation privileges. DOC thereafter terminated Plaintiff's Extended Family Visiting (EFV) privileges.

         Plaintiff appealed the disciplinary sanction to the Washington State Supreme Court, which reversed and remanded after finding that Plaintiff had been denied the chance to present testimony of Ms. Morton at the April 5, 2011 disciplinary hearing. At a second disciplinary hearing on May 6, 2016, the 711 infraction was dismissed on procedural grounds, with no sanction imposed. See Dkt. 13-2 at 7 (“Due Process-continuance was not signed by the Superintendent”). DOC removed the infraction from Plaintiff's OMNI Legal Face Sheet and adjusted his early release date to restore the good time credits. Plaintiff is still in custody, and his good time credits have been restored. In the interim between the April 5, 2011 hearing and the May 6, 2016 hearing, Plaintiff was placed in administrative segregation. After the May 6, 2016 hearing, Plaintiff reapplied, and was denied, EFV privileges.

         Plaintiff's re-application for EFV privileges was prepared in May of 2016 by Defendant Donnie Rucker, Plaintiff's assigned counselor. The re-application included a reference to the 711 infraction litigated at the April 5, 2011 disciplinary hearing. According to Defendant Rucker, he included reference to the 711 infraction, even though it had been dismissed, because he still had safety concerns and wanted to provide context about why Plaintiff was re-applying. The re-application was submitted to a DOC panel, including Defendant Rucker, which recommended granting EFV privileges, on June 1, 2016. A DOC supervisor ultimately rejected the DOC panel's recommendation to grant EFV privileges. Prior to the DOC panel issuing its recommendation, on May 21, 2016, Plaintiff filed a grievance complaining of an unfair EFV privilege process. The administrative grievance did not name Defendant Rucker by name and was administratively denied on June 30, 2016 for the failure to “rewrite” the grievance to address certain concerns.

         The Complaint alleges constitutional violations under the First, Fifth, and Fourteenth Amendments.

         2. Discussion.

         Plaintiff objects to “all adverse rulings” in the R&R, but acknowledges that “Plaintiff's position is set out primarily in plaintiff's summary judgment motion.” Dkt. 64 at 1. Because the Court will adopt the R&R, the Court's ‘position' is set out primarily in the R&R, which addressed the merits of cross motions for summary judgment. Dkt. 64. The following analysis is intended to address Plaintiff's Objections and not rewrite analysis of the R&R.

         Objection: “The Court should reject the R&R where plaintiff submitted new evidence and new facts . . . [and thus] may consider a successive summary judgment.” Dkt. 64 at 7.

         Plaintiff argues that he has offered new facts not previously available, which warrants reconsideration of prior findings. Dkt. 64 at 7. This additional evidence “change[s] this case significantly, ” Plaintiff contends. Dkt. 73 at 3. Plaintiff does not detail exactly what facts are newly available, or more importantly, how those facts would change the merits of the prior Order. An examination of all citations to the record given by Plaintiff (Dkt. 64 at 7) does not point to material facts ignored by the R&R in its analysis of Plaintiff's claims. See Dkts. 42, 53, 54, 56. This objection is unavailing.

         Objection: “The Court should reject the . . . R&R as Defendant's [sic] are not entitled to summary judgment where no showing of a liberty interest is required on the Due Process claim.” Dkt. 64 at 4. See also, Dkt. 64 at 8, 10.

         Put differently, Plaintiff theorizes that a procedural Due Process claim can be sustained without implicating an underlying liberty interest. Not so. To invoke the procedural protections of the Due Process Clause, the plaintiff must establish that there is a deprivation of life, liberty or property without proper procedural protections. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “A liberty interest may arise from the Constitution itself . . ., or it may arise from an expectation of interest created by state laws or policies.” Id. Interests created by the state “will be generally limited to freedom from restraint which, while not exceeding the sentence in such an expected manner as to give rise to protection by the ...


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