United States District Court, W.D. Washington, Tacoma
ORDER ON SECOND REPORT AND RECOMMENDATION
J. BRYAN, United States District Judge.
MATTER comes before the Court on the Report and
Recommendation of U.S. Magistrate Judge David W. Christel.
Dkt. 49. The R&R recommends denial of three motions filed
by Plaintiff: Motion for Affidavit (Dkt. 39), Motion for
Preliminary Injunction (Dkt. 36), and Motion for Declaratory
Judgment (Dkt. 40). Plaintiff does not object to denial of
the Motion for Affidavit (Dkt. 39), which the R&R
recommends be denied on procedural grounds. Dkt. 55 at 2, 3.
Plaintiff filed Objections to the R&R for the other two
motions, Motion for Preliminary Injunction (Dkt. 36) and
Motion for Declaratory Judgment (Dkt. 40). Dkt. 55. This
Order, which adds the following analysis to the R&R,
which should be adopted in part and denied in part, and
supplemented as follows.
Motion for Declaratory Judgment (Dkt. 40)
seeks a Court order declaring DOC Policy 590.200(I)(F)
unconstitutional. Dkt. 40 at 3. DOC Policy 590.200(I)(F) was
effective until July 17, 2017, when DOC revised its policy.
Under DOC Policy 590.200(I)(F), inmates could marry only
spouse/state registered domestic partners from an approved
visitor list. The Complaint alleges that Plaintiff was denied
the right to marry his same-sex partner based on this
allegedly unconstitutional policy, and Defendants retaliated
against him for exercising his constitutional right. Dkt. 1
at 9. Plaintiff concedes that DOC Policy 590.200(I)(F) is no
longer in effect. See Dkt. 40 at 3 (“was
R&R recommends denying the motion on mootness grounds,
because Plaintiff is no longer in DOC custody. Dkt. 49 at 6.
The R&R notes that because the DOC Policy 590.200(I)(F)
“has been rescinded, it cannot impact Plaintiff if he
re-enters DOC custody[, ]” and “entering
declaratory judgment prior to determining if Plaintiff's
constitutional rights have been violated is premature.”
Objections do not directly address the merits of the R&R
on this motion, except to the extent they overlap with the
request for injunctive relief. See Dkt. 55.
Plaintiff's motion on mootness grounds misframes the
claim for declaratory relief. DOC Policy 590.200(I)(F) was
rescinded on July 17, 2017, and this case was filed on August
24, 2018. It would appear that because Plaintiff seeks a
declaration that DOC Policy 590.200(I)(F) “was
unconstitutional, ” Dkt. 40 at 3 (emphasis added), the
request for declaratory judgment is functionally a request
for partial summary judgment on the issue of DOC Policy
590.200(I)(F)'s constitutionality, although it is unclear
whether Plaintiff challenges the policy on its face or as
applied. Plaintiff separately challenges the
constitutionality of DOC Policy 590.200(1)(A), a current
policy. See below. Whether DOC Policy 590.200(I)(F)
was unconstitutional, and if so, whether Plaintiff was
harmed, may turn on questions of fact unrelated to
Plaintiff's current DOC custody status. If the policy was
unconstitutional, either on its face or applied, even if
Plaintiff is never again in DOC custody he could, possibly,
still be entitled to damages from the Defendants'
retaliation against him for exercising a constitutional
right. Therefore, denying the motion on mootness grounds is
the Court concurs that Plaintiff's motion should be
denied as premature. No. findings as to Plaintiff's
motion should be construed as findings on the merits of this
Motion for Preliminary Injunction (Dkt. 36).
requests injunctive relief against Defendants, who are
supervisors or employees of the Washington State Department
of Corrections (“DOC”). Dkt. 36 at 1. The motion
requests that Defendants be ordered to “cease and
desist the continuation of discrimination against same sex
marriage . . . through  Prison Policy DOC 590.200(1)(A)
[sic].” Id. DOC Policy 590.200(1)(A)
prohibits marriage “between 2 offenders confined in
R&R recommends denying the request for a preliminary
injunction on two grounds: (1) the request is moot, because
the DOC policy no longer applies to Plaintiff, who has been
released from custody; and (2) Plaintiff has not shown he
will suffer irreparable harm, because he is not in custody
and the marriage relationship Plaintiff was pursuing has been
“abandoned.” Dkt. 49 at 3-5.
Court concurs in the recommended outcome, that
Plaintiff's request for a preliminary injunction should
be denied. However, denying the motion on mootness grounds
misapprehends the procedural history. The R&R cites the
rule that “[a]n inmate's release from prison . . .
will moot any claims for injunctive relief[, ]” but in
this case, Plaintiff filed the case after release
from DOC custody. “[A] case becomes moot when the
issues are no longer live, ” Porter v.
Jones, 319 F.3d 483, 489 (9th Cir. 2003), but
at least thus far, DOC Policy 590.200(1)(A) has not yet
applied to Plaintiff. Mootness is closely related to the
doctrine of ripeness, and Plaintiff's motion for
preliminary injunction should be denied as unripe. This
finding should be made without prejudice to the merits of
Plaintiff's DOC Policy 590.200(1)(A) claim.
Objections, Plaintiff argues that there is a likelihood of
reaching the merits, because although Plaintiff is not
currently in DOC custody, he is a pretrial defendant in a
criminal case and “is facing” the prospect of DOC
custody. Dkt. 55 at 2, 3. To reach this argument, the Court
would make conjectures about the outcome of an underlying
criminal case and make assumptions about the future of
Plaintiff's relational status and the sufficiency of
Plaintiff's marriage request if and when he is in DOC
custody. The record does not support making findings on any
of these issues, nor would addressing them appear prudent.
objects to language in the R&R suggesting that he has
“abandoned” the marriage relationship, because,
he argues, he has been forced to refrain from communication
with his partner by DOC. Dkt. 55 at 2, 3. Assuming that
Plaintiff has not, himself, abandoned the marriage
relationship has no bearing on the broader finding that at
present the Court should decline to reach the merits of
Plaintiff's claim. Plaintiff also requests in the
alternative a stay of this ...