Setzke v. Norris et al

Filing 195

ORDER ADOPTING REPORT AND RECOMMENDATIONS 149 granting in part and denying in part 36 Motion for Summary Judgment; granting in part and denying in part 66 Motion for Summary Judgment; granting in part and denying in part 74 Motion for Summary Judgment; granting in part and denying in part 98 Motion for Summary Judgment, granting in part and denying in part 95 Motion for Summary Judgment. Signed by Honorable Jimm Larry Hendren on March 17, 2009. (jn)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION RAYMOND SETZKE v. Civil No. 07-5186 PLAINTIFF

LARRY NORRIS, Director, Arkansas Department of Correction; JOHN MAPLES, Warden of the Grimes Unit, Arkansas Department of Correction; LINDA GATES, Records Supervisor, Grimes Unit; CHARLES PRUITT, Director of the Arkansas Crime Information Center (ACIC); PAULA STITZ, Manager, State Sex Offender Registry of the ACIC; SHERIFF KEITH FERGUSON, Benton County, Arkansas; DEPUTY FREE; DEPUTY JENSEN; CAPTAIN PETRAY; LT. CARTER; MARK BERNTHAL; LEANNE BAKER; AREA MANAGER OR SUPERVISOR at the Area 1 Bentonville Office of the Department of Community Corrections ORDER

DEFENDANTS

Now

on

this

17th

day

of

March,

2009,

comes

on

for

consideration the Report and Recommendation (R&R) issued by the Honorable James Marschewski, United States Magistrate Judge for the Western District of Arkansas (Doc. #149) concerning the following motions: * plaintiff's motions for summary judgment (Doc. #36, #66 and #98 -- hereinafter called "Plaintiff's Motions); * the motion for summary judgment filed by the Area Manager or Supervisor, Leanne Baker, Mark Bernthal, Charles Pruitt, and Paula Stitz (Doc. #74 -- hereinafter called "Defendants' #74 Motion"); and * the motion for summary judgment filed by Grimes

Unit Records Supervisor Linda Gates, Grimes Unit Warden John Maples, and Arkansas Department of Correction Director Larry Norris (Doc. #95 -- hereinafter called "Defendants' #95 Motion") and the Court, being well and sufficiently advised, finds and orders as follows with respect to the same: 1. Plaintiff filed objections (Doc. #150) to the R&R; ADC

and the State Defendants also filed objections (Doc #152) to the R&R; and plaintiff filed a Reply to Defendants' Objection (Doc. #160) to the R&R. 2. The Court, having considered the R&R and the filings of

the parties, finds and orders as follows: (a) Recommendations concerning Plaintiff's Motion -- The

Magistrate Judge recommended in the R&R that Plaintiff's Motions should be granted in part, and denied in part. After review, the Court finds that defendants' objections to these recommendations should be, and they hereby are, overruled. Accordingly, Plaintiffs' Motions should be, and they hereby are: * granted as to his due process claim -- in that the

Court concludes that plaintiff's right to procedural due process was violated when he was placed on the Arkansas Sex Offender Registry without being afforded an opportunity to contest the Act's application to his 1981 conviction in Illinois; and -2-

*

denied in all other respects.

(b) Recommendations concerning Defendants' #74 Motion -- The Magistrate Judge recommended in the R&R that the motion for summary judgment filed by the Area Manager or Supervisor, Leanne Baker, Mark Bernthal, Charles Pruitt, and Paula Stitz ­ Defendants' #74 Motion -- should be denied in part, and granted in part. After review, the Court finds that plaintiff's objections to these recommendations should be, and they hereby are, overruled. Accordingly, Defendants' #74 Motion should be, and it hereby is: * granted with respect to plaintiff's claims that his

rights to substantive due process, equal protection, double jeopardy and his rights under the Ex Post Facto Clause were violated; and * denied with respect to plaintiff's claim that his

right to procedural due process was violated. (c) Recommendations concerning Defendants' #95 Motion -- The Magistrate Judge recommended in the R&R that the motion for summary judgment (Doc. 95) filed by Grimes Unit Records Supervisor Linda Gates, Grimes Unit Warden John Maples, and Arkansas Department of Correction Director Larry Norris -- the Defendants' #95 Motion -should be granted in part and denied in part. After review, the Court finds that plaintiff's objections to these recommendations should be, and they hereby are, overruled.

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Accordingly, Defendants' #95 Motion should be, and it hereby is: * granted with respect to plaintiff's claims for monetary damages against these defendants in their official capacities -- such damages are barred by the doctrine of sovereign immunity under the Eleventh Amendment; and * granted with respect to plaintiff's claims that his rights to substantive due process, equal protection, double jeopardy and his rights under the Ex Post Facto Clause were violated; and * 3. denied in all other respects. matter is referred back to Magistrate Judge

This

Marschewski for further action as may be necessary in light of the foregoing. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE

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