Golie v. Kirkegard et al

Filing 16

ORDER ADOPTING IN PART 13 FINDINGS AND RECOMMENDATIONS. Golie's Fourteenth Amendment claim for deprivation of property without due process, as it relates to the confiscation/destruction of his books and magazine, shall proceed. His claims re garding his disciplinary and classification proceedings, and his claims regarding being fined during a disciplinary hearing, are DISMISSED WITH PREJUDICE. Defendants Kirkegard, Heimbuch, Hess, Steyh, Randall, Wigert, Horsewill, Pentland, and Christa are DISMISSED. Signed by Judge Dana L. Christensen on 4/23/2015. Mailed to Golie. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

FILED
APR 2 3 2015
Clerk, U.S. District Court
District Of Montana
Missoula

CV 14-10-H-DLC-JTJ

ANDREW DAVID GOLIE,
Plaintiff,

ORDER
vs.
LEROY KIRKEGARD, OFFICER
DONALD HEIMBUCH, DAN HESS,
SHELLY STEYH, OFFICER
RICHARD RANDALL, THOMAS
MALCOMB, PAUL LUCIER, DENISE
DEYOTT, ROXANNE WIGERT, and
CASE MANAGER B. CHRISTA,
Defendants.
Plaintiff Golie filed his Complaint in this matter on February 28, 2014.
On June 25, 2014, United States Magistrate Judge Keith Strong issued an order
noting that many of the claims in Golie's Complaint failed to state a claim for
relief, but granting Golie leave to file an amended pleading. Golie filed his
Amended Complaint on September 3, 2014, and the case was subsequently
reassigned to United States Magistrate Judge John T. Johnston. Judge Johnston
entered his order, findings, and recommendations regarding the Amended
Complaint on February 23, 2015, recommending, inter alia, that three of Plaintiff

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Golie's claims, virtually unchanged from the original pleading, should be
dismissed with prejudice for failing to state a claim. Golie timely objected to the
findings and recommendations on these issues, and so is entitled to de nova review
of the record. 28 U.S.C. § 636(b)(l). The portions ofthe findings and
recommendations not specifically objected to will be reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). "Where a [party's] objections constitute perfunctory responses
argued in an attempt to engage the district court in a rehashing of the same
arguments set forth in the original [pleading], the applicable portions of the
findings and recommendations will be reviewed for clear error." Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (citations omitted). For
the reasons explained below, the Court adopts Judge Johnston's findings and
recommendations in part.
Judge Johnston recommended dismissing Golie's claims related to
disciplinary proceedings and associated changes in confinement status, a $30 fine
imposed due to a disciplinary infraction, and the alleged confiscation/destruction
of three books and a magazine without a hearing. Judge Johnston found, in line
with Judge Strong's earlier analysis, that: (1) Golie failed to allege facts raising
the confinement issues to the level of "atypical or significant hardship" sufficient
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to trigger a liberty interest, See Myron v. Terhune, 476 F.3d 716, 718 (9th Cir.
2007); (2) Golie was afforded adequate due process relative to the violation and
hearing which led to the $30 fine; and (3) Golie failed to include sufficient detail
regarding the incident with the books and magazines to adequately state a claim
for relief. Further, as to the first of these claims, Judge Johnston found that any
alleged impact upon Golie's chances of parole caused by the disciplinary and
confinement issues were insufficient to raise a due process claim, given the
uncertainty inherent in the parole process. See Sandin v. Conner, 515 U.S. 472,
487 (1995).
Golie objects to Judge Johnston's recommendations on each of these claims.
As to the disciplinary and confinement claims, including the claim related to the
fine, Golie alleges that the "infractions [he] was found guilty of were not the same
infractions [he] had served to him on the written notice of the violation," making it
impossible for him to put on an adequate defense at the hearing. (Doc. 15 at 2.)
The Court views this objection merely as a reformulation of a conclusory theme in
Golie's Amended Complaint-that prison officials improperly informed him of
disciplinary charges he faced. Golie provides no factual detail as to this allegation
in his objections, and thus still fails to state a claim as to the first two of the three
claims Judge Johnston recommends dismissing. Judge Johnston's findings and
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recommendations are adopted in this respect.
As to the property-based claim related to his books and magazine, Golie's
objections, construed liberally, cure the defect identified by Judge Johnston.
Judge Johnston recommended dismissing the claim because Golie failed to
identify the parties involved in the confiscation/destruction and whether it was
authorized. In his objections, Golie indicates that Defendants Lucier and
Malcomb authorized the deprivation, albeit apparently through negligence.
Nevertheless, Golie provides the lacking details. Because Judge Johnston did not
have this information at the time he issued his February 23, 2015 order, the
findings and recommendations must be rejected as to this claim.
Accordingly, IT IS ORDERED that Judge Johnston's findings and
recommendations (Doc. 13) are ADOPTED IN PART. Golie's Fourteenth
Amendment claim for deprivation of property without due process, as it relates to
the confiscation/destruction of his books and magazine, shall proceed. Defendants
Lucier and Malcomb shall address this claim in their Answer or appropriate
motion, as outlined in Judge Johnston's February 23, 2015 order.
IT IS FURTHER ORDERED that Golie's claims regarding his disciplinary
and classification proceedings, and his claims regarding being fined during a
disciplinary hearing, are DISMISSED WITH PREJUDICE.
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IT IS FURTHER ORDERED that Defendants Kirkegard, Heimbuch, Hess,
Steyh, Randall, Wigert, Horsewill, Pentland, and Christa are DISMISSED from
this action.
DATED this

23~ay of April, 2015

Dana L. Christensen, Chief Judge
United States District Court

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