United States District Court, W.D. Washington, Tacoma
ORDER ON REPORT AND RECOMMENDATION ON CROSS MOTIONS
FOR SUMMARY JUDGMENT
J. BRYAN, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
Complaint alleges constitutional violations under the First,
Fifth, and Fourteenth Amendments.
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.
“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.
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.
“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.
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 ...