Marble v. Strecker et al
Filing
40
ORDER adopting in part 38 Findings and Recommendations; granting in part and denying in part 23 Motion for Summary Judgment; granting in part and denying in part 26 Motion for Summary Judgment. Defendants' motions for summary judgment 23 , 26 are REFERRED back to Judge Lynch for further findings and recommendations. Signed by Judge Donald W. Molloy on 5/12/2015. Mailed to Marble. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV 13-186-M-DWM-JCL
CODY WILLIAM MARBLE,
Plaintiff,
ORDER
vs.
FILED
JARED POOLE and HEATHER
SMITH,
MAY 12 2015
Defendants.
Clerk, U.S. District Court
District Of Montana
Missoula
INTRODUCTION
Plaintiff Cody William Marble brings this action under 42 U.S.C. § 1983
against two parole officers, Jared Poole and Heather Smith, asserting violations of
his due process and First Amendment rights under the United States Constitution.
Poole and Smith have filed motions for summary judgment. (Docs. 23, 26.)
Magistrate Judge Jeremiah Lynch entered Findings and Recommendations on
February 27, 2015, recommending that both motions be granted. (Doc. 38.)
Marble's timely objections to the findings and recommendations, (Doc. 39), are
reviewed de novo, 28 U.S.C. § 636(b)(l).
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Discussion
Marble makes the following objections: (1) that Smith is not entitled to
absolute quasi-judicial immunity; (2) that Poole and Smith cannot escape liability
for their alleged failure to adequately notify Marble's witnesses of the time and
place of his preliminary on-site hearing; (3) that Poole and Smith are not entitled
to qualified immunity for allegedly failing to provide a prompt preliminary
hearing; and (4) that Poole is not entitled to qualified immunity on Marble's First
Amendment retaliation claim. (Doc. 39.) For the reasons stated below, Marble's
first objection is sustained, and his third and fourth objections are overruled.
Marble's second objection is sustained to the extent that the issue is referred back
to Judge Lynch to prepare further findings and recommendations. Additionally,
Defendants' post-deprivation remedy argument is also referred back to Judge
Lynch to review in the first instance.
I.
Absolute Quasi-Judicial Immunity
Marble objects to the conclusion that Smith is entitled to absolute quasi-
judicial immunity. (Doc. 39 at 1-2.) Judges are entitled to absolute immunity
when acting in a judicial capacity. Meekv. Cnty. ofRiverside, 183 F.3d 962, 965
(9th Cir. 1999) (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). Non-judicial
officers may be entitled to absolute quasi-judicial immunity for decisions they
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make while acting in a quasi-judicial capacity, iftheir judgments are "'functionally
comparable'" to judges in that they "'exercise a discretionary judgment' as part of
their function." Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004) (quoting
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993)). With respect to
non-judicial officers, courts apply a presumption in favor of qualified immunity as
opposed to absolute immunity. Burns v. Reed, 500 U.S. 478, 486--87 (1991). The
proponent of a claim to absolute immunity "bears the burden of establishing the
justification" for absolute immunity. Antoine, 508 U.S. at 432.
In Antoine, the United States Supreme Court held that a court reporter's task
of providing a verbatim transcript is not entitled to absolute quasi-judicial
immunity under the "functional approach" because a court reporter is "afforded no
discretion in the carrying out of this duty." Id. at 436. The Court reiterated its
holding in Burns that the "touchstone" for the functional approach is
"'performance of the function of resolving disputes between parties, or of
authoritatively adjudicating private rights."' Id. at 435-36 (quoting Burns, 500
U.S. at 500). 1 However, the Court in Antoine "worked a sea change" in how
absolute immunity is analyzed by holding that the proper inquiry is whether an
1
The Antoine Court also held that neither "the difficulty of a job" nor whether the task "is
extremely important" are factors to be considered in the functional approach. Antoine, 508 U.S.
at 436.
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official is performing a duty "'functionally comparable to one for which officials
were rendered immune at common law."' Swift, 384 F.3d at 1190 (quoting Miller
v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003) (en bane)).
In cases decided prior to the "sea change" in Antoine, the Fifth Circuit and
the Seventh Circuit both held that preliminary hearing officers are entitled to
absolute quasi-judicial immunity. Farrish v. Miss. State Parole Bd., 836 F.2d 969,
975-76 (5th Cir. 1988); Trotter v. Klincar, 748 F.2d 1177, 1181-82 (7th Cir.
1984). However, these cases did not analyze, as subsequently required by
Antoine, whether the function performed by the preliminary hearing officers were
functionally comparable to those granted immunity at common law. Antoine, 508
U.S. at 432-33.
Since Antoine, the Ninth Circuit has held that parole board members are
entitled to absolute quasi-judicial immunity when they make decisions to "grant,
deny, or revoke parole." Swift, 384 F.3d at 1189 (citing Anderson v. Boyd, 714
F.2d 906, 909-10 (9th Cir. 1983)). And parole officers are entitled to absolute
quasi-judicial immunity for actions "integrally related to an official's decision to
grant or revoke parole." Id. (citing Anderson, 714 F .2d at 909). However, parole
officers' "conduct arising from their duty to supervise parolees" is not entitled to
quasi-judicial immunity. Id. In analyzing claims of absolute quasi-judicial
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immunity, courts have carefully drawn a line between adjudicatory acts on the one
hand and administrative acts on the other. Parole officers performing
administrative acts are not entitled to absolute quasi-judicial immunity. Anderson,
714 F.2d at 910 ("dissemination of information outside ... the parole board" is an
administrative act); Swift, 384 F.3d at 1191 (administrative acts include "(1)
investigating parole violations, (2) ordering the issuance of a parole hold ... , and
(3) recommending the initiation of parole revocation proceedings.").
Smith is not entitled to absolute quasi-judicial immunity. The key inquiry
for the functional approach is whether the specific conduct complained of is
adjudicatory in nature. Antoine, 508 U.S. at 435-36. Marble does not allege that
Smith's adjudicatory role-her probable cause determination-caused him harm.
Rather, Marble alleges that his due process rights were violated when Smith and
Poole "failed to make Leann Dontigny available" and "failed to contact or allow
[him] to present witnesses" at the September 22, 2011 hearing. (Amend. Compl.,
Doc. 20 at 7.) The act of contacting witnesses is not functionally comparable to an
adjudicatory act undertaken by a judge. Instead, contacting witnesses is more
similar to "dissemination of information" and "aris[es] from [the] duty to supervise
parolees," both of which the Ninth Circuit has held to be administrative acts.
Anderson, 714 F.2d at 910; Swift, 384 F.3d at 1191. Further, Smith bears the
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burden of establishing that absolute quasi-judicial immunity applies. Antoine, 508
U.S. at 432. Smith has not argued that her act of contacting witnesses is
functionally comparable to "the immunity historically accorded the relevant
official at common law." Id. Consequently, Smith is not entitled to absolute
quasi-judicial immunity for the administrative act of attempting to contact
witnesses. Marble's objection is sustained.
II.
Qualified Immunity
To determine whether an official is entitled to qualified immunity from civil
lawsuits, courts ask two questions. First, "[t]aken in the light most favorable to
the party asserting the injury, do the facts alleged show the officer's conduct
violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing
Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Second, was the right "clearly
established?" Id. If an officer's conduct violates "'clearly established statutory or
constitutional rights of which a reasonable person would have known,"' then the
officer is not entitled to qualified immunity with respect to that conduct. Id. at 231
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A.
Right to Have Witnesses Present at the Preliminary Hearing
Marble alleges that his right to due process under the Fourteenth
Amendment was violated because Smith and Poole failed to adequately notify his
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requested witnesses. (Amend. Compl., Doc. 20 at 7 .) The Findings and
Recommendations did not reach the question of whether Smith and Poole are
entitled to qualified immunity for this claim. (Doc. 38 at 9-10.)
1.
Factual Background
The following facts are viewed in the light most favorable to Marble. Tolan
v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). On September 14, 2011,
Marble was served with a Notice of On-Site Hearing form. (Docs. 33 at 6; 33-1 at
7.) Marble was served with a replacement Notice of On-Site Hearing form on
September 16, 2011. (Docs. 33 at 6; 33-1at9.) The Notice of On-Site Hearing
form states:
You may bring ... individuals who can give relevant information in
your behalf to the hearing officer. Upon your request, persons who have
given adverse information on which revocation may be based, will be
made available for questioning in your presence, unless the hearing
officer determines that the informant would be subjected to risk if
his/her identity were disclosed. This is not an adversary hearing;
however, in all cases, the attorney and witnesses must be notified by the
alleged violator and secured at his/her own expense.
(Docs. 33 at 6; 33-1at9 (emphasis in original).)
Marble filled out a Request for Witnesses form twice, once on September
14, 2011, and again on September 16, 2011. (Docs. 33 at 7; 33-1at8, 10.)
Marble requested three witnesses to provide exculpatory information on his
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behalf: Jerry Marble, Blaine Marble, and Brittany Wells. (Id.; Doc. 33-1 at
43-49.) Marble also requested two adverse witnesses, Leann Dontigny and Poole.
(Docs. 33 at 7; 33-1 at 8, 10.) Marble saw on the report of parole violation dated
September 14, 2011, that Police Officer Devin Erickson and Parole Officers
Melissa Strecker and Andrea Bethel were already listed as state witnesses for the
preliminary on-site hearing, so Marble did not include them on his Request for
Witnesses form. (Doc. 33-1 at 6, 51.)
The Request for Witnesses form includes a space for the witness's name and
address but not telephone number. (Id. at 8, 10.) Each Request for Witnesses
form requires the offender to sign and includes the statement "I understand that if I
cannot contact [the witnesses], efforts will be made to contact them for me, but
that their attendance will be voluntary and at their own expense." (Id.) Marble
listed addresses and telephone numbers for Jerry Marble and Blaine Marble;
Marble only listed addresses for Wells, Dontigny, and Poole. (Id.) On the
Request for Witnesses form that Marble signed on September 14, 2011, he wrote
down the wrong telephone number for Jerry Marble; however, Marble believed
that the September 16, 2011 form, which included the correct number, replaced the
September 14, 2011 form. (Doc. 33 at 7-8.) While he filled out the Request for
Witnesses form on September 16, 2011, Marble remarked to Probation and Parole
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Officer Valerie Chestnut that he did not have telephone numbers for Dontigny or
Wells. (Doc. 33-1 at 52.) Officer Chestnut replied that it "wouldn't be a problem
and an officer would be sent to notify" each of them. (Id.)
Prior to the preliminary on-site hearing scheduled for September 22, 2011,
Smith attempted to contact Marble's requested witnesses. Smith left a voicemail
for Jerry Marble asking him to return her call before 8:30 a.m. on September 22,
2011; however, Smith used the incorrect telephone number from the September
14, 2011 form. (Doc. 33 at 8.) Smith's message for Jerry Marble did not include
the time and place of the hearing. (Doc. 33-1 at 43.) Smith located a telephone
number for Dontigny and called her on September 21, 2011. (Doc. 33 at 9.)
Dontigny answered the telephone, did not say anything, and hung up. (Id.) Smith
called her back again a couple minutes later, but Dontigny did not answer. (Id.)
Smith left a voicemail asking Dontigny to return Smith's call by 8:30 a.m. the
following day but without informing Dontigny of the time and place of the
hearing. (Id.) Dontigny never returned the call. (Id.) At the September 22, 2011
hearing, according to Marble, Smith stated that Dontigny would not be present
because "we don't bring victims to these things." (Id.) Smith spoke to Blaine
Marble on the phone but did not provide him with the date and time of the hearing.
(Id. at 9-10; Doc. 33-1 at 45-46.) Instead, Smith took a statement from Blaine
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Marble over the telephone regarding the ownership of a small quantity of
marijuana that was found in Marble's car after his arrest on September 8, 2011.
(Id.) Smith did not attempt to contact Brittany Wells, for whom only a mailing
address was provided. (Doc. 33 at 10.) Smith stated in her summary of the
September 22, 2011 hearing, "There was not a phone number listed to contact
Brittany Wells; only an address listed and she never attempted to make contact
with me at the office ... and it was not noted what relevant information Brittany
could provide on the behalf of parolee Marble." (Doc. 20-1at6.) Smith was
informed that Blaine Marble might know a telephone number for Brittany Wells,
and she noted that she "couldn't get ahold of Blaine for [the number]." (Doc 33-1
at 42.) However, when Smith was able to reach Blaine Marble on the telephone,
she did not ask him for Wells's telephone number. (Id. at 42, 45-46.)
At the September 22, 2011 hearing, Smith presided, and only Poole
appeared as a witness. (Doc. 33 at 10-12.) During the hearing, Marble twice
requested a continuance so he could contact his requested witnesses. (Id.; Doc.
33-1 at 53.) Smith denied the continuance each time. (Doc. 33-1 at 53.) Marble
stated to Smith that the Notice of On-Site Hearing form instructed him that he had
"the right to bring witnesses and question adverse witnesses." (Id.) Smith replied
to Marble, "Well then you should have notified them." (Id.)
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2.
Applicable Law
In the leading case on parole revocation, the Supreme Court held that under
the Fourteenth Amendment, parolees are entitled to due process in the revocation
of their parole. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Although the
State has an "overwhelming interest" in being able to revoke an individual's
parole if revocation is warranted, the State "has no interest in revoking parole
without some informal procedural guarantees." Id. at 483. A parolee's due
. process right includes at minimum an "informal hearing" to determine probable
cause. Id. at 484-85. Due process requires the parolee receive notice prior to the
preliminary hearing. Id. at 486-87. At the preliminary hearing itself, due process
requires that the "parolee may appear and speak in his own behalf; [and] he may
bring letters, documents, or individuals who can give relevant information to the
hearing officer." Id. at 487. Further, a person "who has given adverse information
... is to be made available for questioning in his presence." Id.
Under Montana law, and in line with Morrissey, a parolee is entitled to a
preliminary hearing after arrest for an alleged violation of parole. Mont. Code
Ann.§ 46-23-1024. The parolee must be allowed to "introduce relevant
information to the hearings officer." § 46-23-1024(2). Under a State ofMontana
administrative regulation (the "Regulation") promulgated by the Department of
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Corrections, in effect at the time of the September 22, 2011 hearing, a parolee may
request to have witnesses appear at the preliminary hearing by submitting the
proper form to the parole officer. Mont. Admin. R. 20.2.209(2) (repealed Aug. 10,
2012). The Regulation states, "If the parolee is being detained pending hearing,
the parole officer shall contact the requested witnesses and inform [them] of the
time and place of the hearing." 20.2.209(3) (emphasis added) (repealed Aug. 10,
2012). The State of Montana Probation and Parole Bureau Standard Operating
Procedures states, "If the offender is incarcerated, reasonable attempts will be
made to contact witnesses on behalf of the offender." (Doc. 33-1 at 17.)
Responsibility for this task is placed on the Probation and Parole Officer with
supervision over the offender. (Id.) This is at odds, however, with the Notice of
On-Site Hearing form used by the Department of Corrections,2 which places
responsibility for contacting witnesses on the parolee. It initially states, using
language drawn from Morrissey, 408 U.S. at 487, that a parolee "may bring letters,
documents, or individuals, who can give relevant information in [his] behalf to the
hearing officer." (Doc 25-3 at 5.) Departing from the language used in Morrissey,
the Notice of On-Site Hearing form then states that the witnesses "must be notified
2
The Notice of On-Site Hearing form is referenced in the "Forms" section of Procedure
No. P&P 140-2 of the Probation and Parole Bureau Standard Operating Procedures, last revised
August 20, 2007.
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by the alleged violator and secured at his/her own expense." (Id) There is a
direct conflict between the Notice of On-Site Hearing form and the Regulation.
To the extent that the Notice of On-Site Hearing form is in direct conflict with the
Regulation, the Regulation controls. 3 Accordingly, if the parole officer with
supervision over a parolee held in custody fails to contact adverse witnesses and
the witnesses requested by the parolee and notify them of the time and place of the
hearing, a violation of the parolee's right to a preliminary hearing under Morrissey
has occurred.
As the Findings and Recommendations did not reach this question of
qualified immunity, Marble's objection is sustained to the extent necessary for
referral back to Judge Lynch for further findings and recommendations. Judge
Lynch should decide in the first instance whether a reasonable jury could find that
Marble's due process right to have witnesses appear at his preliminary hearing was
violated and whether the right was clearly established.
B.
Due Process Right to a Prompt Preliminary Hearing
Marble alleges that his due process right under the Fourteenth Amendment
3
Procedure No. P&P 10-3 of the Probation and Parole Bureau Standard Operating
Procedures states, "If a section of any procedure is found to be in conflict with ... Montana
statutes [or] Administrative Rules ... , that portion of the procedure shall be considered null and
void."
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was violated because Smith and Poole failed to provide him a prompt preliminary
hearing. (Amend. Compl., Doc. 20 at 7.) He objects to the conclusion that they
are entitled to qualified immunity on this claim. (Doc. 39 at 3-4.) The Supreme
Court stated in Morrissey that "due process would seem to require that some
minimal inquiry be conducted ... as promptly as convenient after arrest while
information is fresh and sources are available." Morrissey, 408 U.S. at 485. An
individual's due process rights are only violated "when the Commission's delay in
holding a revocation hearing is both unreasonable and prejudicial." Meador v.
Knowles, 990 F.2d 503, 506 (9th Cir. 1993) (citing Camacho v. White, 918 F.2d
74, 79 (9th Cir. 1990)).
Here, there was no unreasonable delay in providing a hearing for Marble
because much or all of the delay is attributable to Marble's requests for
continuances while he pursued the grievance process. Marble received a
preliminary hearing fourteen days after the alleged parole violation occurred. A
final revocation hearing was scheduled for November 29, 2011, as a result of the
September 22, 2011 hearing. Marble could have chosen to testify and to present
his requested witnesses at the November 29, 2011 revocation hearing. Instead,
Marble filed four continuances of his final revocation hearing while he pursued
the three-step grievance process. The March 7, 2012 preliminary on-site hearing
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occurred one month after Marble prevailed at the grievance process. There is no
evidence that either the September 22, 2011 hearing (fourteen days after the
alleged violation) or the March 7, 2012 preliminary on-site hearing (twenty-eight
days after Marble prevailed at the grievance process) caused an unreasonable
delay. A reasonable jury would not find that Marble's due process right to a
prompt preliminary hearing was violated. Marble's objection is overruled, and
Smith and Poole are entitled to qualified immunity on this claim.
C.
Right to Use Grievance Process without Retaliation
Marble alleges that his First Amendment right to use the Department of
Corrections grievance process without retaliation was violated because Poole
included two additional violations in his February 24, 2012 report of violation
after Marble was successful in the grievance process. (Amend. Compl., Doc. 20 at
6.) Marble objects to the conclusion that Poole is entitled to qualified immunity
on this claim. (Doc. 39 at 4.) The First Amendment '"forbids government
officials from retaliating against individuals for speaking out.'" Blair v. Bethel
Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010) (quoting Hartman v. Moore, 547
U.S. 250, 256 (2006)). To prevail, a plaintiff must prove that
(1) he engaged in constitutionally protected activity; (2) as a result, he
was subjected to adverse action by the defendant that would chill a
person of ordinary firmness from continuing to engage in the protected
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activity; and (3) there was a substantial causal relationship between the
constitutionally protected activity and the adverse action.
Id. (citing Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir.
2006)). Here, the parties do not contest that Marble meets the first two
requirements under Blair. The third element requires that a plaintiff prove that the
official's "'desire to cause the chilling effect was a but-for cause of [the official's]
action."' Dietrich v. John Ascuaga 's Nugget, 548 F.3d 892, 901 (9th Cir. 2008)
(quoting Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006)).
The official will prevail ifhe is able to show that he "would have reached the same
decision in the absence of the protected conduct." Crawford-el v. Britton, 523
U.S. 574, 593 (1998) (citing Mt. Healthy City Bd. ofEd. v. Doyle, 429 U.S. 274,
287 (1977)). In relevant cases of retaliatory prosecution, the Supreme Court has
held that "absence of probable cause should be an essential element" and that the
plaintiff must "plead and prove that the defendant lacked probable cause."
Hartman v. Moore, 547 U.S. 250, 257, 265-66 (2006). The rationale for this
additional element is that "the existence of probable cause will suggest that
prosecution would have occurred even without a retaliatory motive." Id. at 261.
Marble's sole evidence that goes to the substantial causal relationship
element is that Poole filed the additional violations seventeen days after Marble
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had prevailed in the grievance process. Although the delay in filing the violations
is suspect, it is insufficient to meet the substantial causal relationship standard in
Blair. Poole insists the timing of the additional violations was not retaliatory
because the evidence that gave rise to the violations-Ma rble's drug tests from
August 2011 that showed evidence of marijuana use-were not available to Poole
until October 31, 2011, several weeks after the September 22, 2011 hearing.
Poole chose not to file an amended report including the additional violations.
Poole stated that he included the additional violations on the February 24, 2012
report because he believed that the Probation and Parole Board "was starting over
with the revocation process." (Doc. 27 at 13.) Further, Marble cannot "prove that
[Poole] lacked probable cause," Hartman, 547 U.S. at 265-66, because the
additional violations were supported by urinalyses of two urine samples taken
from Marble and examined by the State Crime Lab. (Doc. 27 at 12.)
Marble does not dispute that the test results provided proof that he had used
marijuana in August 2011 or that those test results constitute probable cause.
Rather, Marble argues that because he possessed a valid medical marijuana
registration card, "using the medical marijuana wasn't a violation of Marble's
parole conditions." (Doc. 39 at 4.) Marble's argument is factually and legally
incorrect. Marble was expressly prohibited from participating in the medical
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marijuana program as a term of his parole on July 26, 2011, (Doc. 33 at 3), before
either of the urine samples was taken in August 2011. Marble's new medical
marijuana registration card did not trump the condition placed upon the terms of
his parole. Because the test results that provided evidence of Marble's marijuana
use in August 2011 constitute probable cause for Poole's report of additional
violations, a reasonable jury would not find that Poole retaliated against Marble
for his use of the grievance process. Marble's objection is overruled, and Poole is
entitled to qualified immunity on this claim.
III.
Post-Deprivation Remedy
According to Smith and Poole, Marble cannot prevail on his due process
claim because he was afforded an adequate post-deprivation remedy in the form of
the grievance process. (Doc. 36 at 2.) The Findings and Recommendations did
not address this issue. Therefore, the issue is referred back to Judge Lynch to
review in the first instance.
Accordingly, IT IS ORDERED that the Findings and Recommendations
(Doc. 38) are ADOPTED IN PART as to the conclusions regarding Plaintiffs
prompt preliminary hearing and retaliation claims.
IT IS FURTHER ORDERED that Defendants' motions for summary
judgment (Docs. 23, 26) are GRANTED IN PART and DENIED IN PART.
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Defendant Smith is not entitled to absolute quasi-judicial immunity. Defendants
Smith and Poole are entitled to qualified immunity on Plaintiff's prompt
preliminary hearing claim. Defendant Poole is entitled to qualified immunity on
Plaintiff's retaliation claim.
IT IS FURTHER ORDERED that Defendants' motions for summary
judgment (Docs. 23, 26) are REFERRED back to Judge Lynch for further findings
and recommendations as to ( 1) whether Defendants Smith and Poole are entitled to
qualified immunity on Plaintiff's witness notification claim; and (2) whether
Plaintiff had an adequate post-deprivation remedy.
DATED this
_it day of May, 2015.
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