Marble v. Strecker et al
Filing
47
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 44 in full; denying 23 Motion for Summary Judgment; granting 26 Motion for Summary Judgment Signed by Judge Donald W. Molloy on 2/25/2016. Mailed to Marble. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FILED
FEB 2 5 2016
Clerk, U S District Court
District Of Montana
Missoula
CV 13-186-M-DWM-JCL
CODY WILLIAM MARBLE,
Plaintiff,
ORDER
vs.
JARED POOLE and HEATHER
SMITH,
Defendants.
Plaintiff Cody William Marble brings this action under 42 U.S.C. § 1983
against two state parole officers, Jared Poole and Heather Smith, alleging they
violated his right to due process with respect to a preliminary parole revocation
hearing. Poole and Smith filed motions for summary judgment, asserting qualified
immunity and that Marble was afforded an adequate postdeprivation remedy
through a grievance process. (Docs. 23, 26.) The Court referred both issues to
Magistrate Judge Jeremiah Lynch. (Doc. 40.) Judge Lynch entered Findings and
Recommendations on November 16, 2015, recommending that Poole's motion be
granted and that Smith's motion be denied. (Doc. 44.) Smith and Marble filed
timely objections. (Docs. 45, 46.) The objections are reviewed de novo. 28
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u.s.c. § 636(b)(l).
Smith argues she is entitled to qualified immunity and that Marble was
afforded an adequate postdeprivation remedy. Her objections are overruled.
Marble argues Poole is not entitled to qualified immunity. His objection is
overruled.
I.
Qualified Immunity
"Determining whether officials are owed qualified immunity involves two
inquiries: (1) whether, taken in the light most favorable to the party asserting the
injury, the facts alleged show the official's conduct violated a constitutional right;
and (2) if so, whether the right was clearly established in light of the specific
context of the case." Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009). The
second prong will be addressed first. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
A.
Whether the Right Was Clearly Established
According to the leading case on parole revocation, parolees are entitled to
due process in the revocation of their parole. Morrissey v. Brewer, 408 U.S. 471,
481 (1972). Due process requires that a "preliminary hearing" be conducted "to
determine whether there is probable cause or reasonable ground to believe that the
arrested parolee has committed acts that would constitute a violation of parole
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conditions." Id. at 485. Due process allows for the presence of witnesses at the
preliminary hearing. First, the parolee "may bring ... individuals who can give
relevant information to the hearing officer." Id. at 487. Second, "[o]n request of
the parolee, [a] person who has given adverse information on which parole
revocation is to be based is to be made available for questioning in his presence.
However, ifthe hearing officer determines that an informant would be subjected to
risk of harm if his identity were disclosed, he need not be subjected to
confrontation and cross-examination." Id. The test for the confrontation right has
been clarified since Morrissey and provides that "in determining whether the
admission of hearsay evidence violates the releasee' s right to confrontation in a
particular case, the court must weigh the releasee's interest in his constitutionally
guaranteed right to confrontation against the Government's good cause for
denying it." United States v. Comito, 177 F .3d 1166, 11 70 (9th Cir. 1999).
Montana established a regulatory scheme in line with Morrissey, and under
that scheme a parolee is entitled to a preliminary hearing after arrest for an alleged
violation of parole. Mont. Code Ann. § 46-23-1024. According to that statute,
"[t]he parolee ... must be allowed to ... introduce relevant information to the
hearings officer." § 46-23-1024(2). Pursuant to Administrative Rule of Montana
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20.2.208, 1 the parolee shall be served with notice of the preliminary hearing
apprising him that he "may bring ... individuals that can give relevant information
to the hearing officer," that "[u]pon [his] request, persons who have given adverse
information ... will be made available for questioning in [his] presence," and that
he "is entitled to legal counsel at the hearing, however, counsel and witnesses
must be notified by the parolee and secured at [his] own expense." (Doc. 33-1 at
11.) Additionally, rule 20.2.209 specifies that "[i]f 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." (Jd.)
Accordingly, at the time of the preliminary hearing, it was clearly
established that a parolee has the right to present evidentiary witnesses at the
preliminary hearing and, ifthe parolee is in custody, the parole officer will notify
his requested witnesses. Additionally, it was clearly established that a parolee has
the right to question adverse witnesses and that the government must present
requested witnesses for questioning at the preliminary hearing, absent a showing
of good cause.
Smith argues that the good cause balancing test is not clearly required for
1
Rules 20.2.208 and 20.2.209 were repealed on August 10, 2012, but in effect at the time
of the September 22, 2011 hearing.
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preliminary hearings if reliable documentary hearsay evidence is presented. The
Ninth Circuit, however, has made it clear that "[t]he application of a balancing test
to the admission of hearsay evidence in parole revocation hearings is not an open
question in this circuit." Valdivia v. Schwarzenegger, 599 F.3d 984, 990 (9th Cir.
2010). Indeed, a majority of circuits apply the balancing test, see Curtis v.
Chester, 626 F.3d 540, 545 (10th Cir. 2010) (collecting cases), and Smith does not
present any applicable authority indicating that the balancing test does not apply
with equal force to preliminary hearings. See Farrish v. Miss. St. Parole Bd., 836
F.2d 969, 977-78 (5th Cir. 1988) (declining to read Morrissey as allowing for a
more lenient standard and citing the balancing test for preliminary hearings).
B.
Whether the Facts Alleged Show the Right Was Violated
The due process right to present evidentiary witnesses who can offer
relevant information at a preliminary hearing is absolute. See Morrissey, 408 U.S.
at 487 (no conditions placed on right to present evidentiary witnesses, unlike
adverse witnesses); Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (referring to the
right to call witnesses at a revocation hearing as "basic to a fair hearing" and
"unqualified"). Here, it is undisputed that Marble was incarcerated and he
requested the presence of Jerry Marble, Blaine Marble, and Brittany Wells.
Construing the facts in Marble's favor, these witnesses would have offered
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relevant, exculpatory information, and although Smith undertook to contact them
on Marble's behalf, she did not inform them of the hearing. A reasonable jury
could find that Smith violated Marble's right to present these witnesses by failing
to notify them of the hearing.
As stated above, the due process right to question adverse witnesses at a
preliminary hearing is conditional: the parolee must request their presence, and the
government need not present them if the government's good cause for not
presenting them outweighs the parolee's interest in his right to confrontation.
Valdivia, 599 F.3d at 989. Here, it is undisputed that Marble requested the
presence ofDontigny and that Marble knew Dontigny's identity. See Morrissey,
408 U.S. at 487. Construing the facts in Marble's favor, Smith made two phone
calls to Dontigny but did not inform Dontigny that her presence was necessary at
the preliminary hearing. Because Smith relied solely on hearsay evidence in
finding probable cause that Marble assaulted Dontigny, a reasonable jury could
find that Smith violated Marble's right to confront Dontigny because Smith did
not have good cause for failing to notify Dontigny to maker her available for
questioning.
Relying on two inapposite district court habeas corpus cases, Smith argues
that the reports of Officers Erickson and Bethel as well as the charges against
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Marble were sufficiently reliable to support a finding of probable cause. Smith's
argument lacks merit because the balancing test is the relevant inquiry, not
reliability. In applying the balancing test, courts look to the government's reasons
for not presenting an adverse witness and relying on hearsay evidence against "the
importance of the hearsay evidence to the court's ultimate finding and the nature
of the facts to be proven by the evidence." Id. (quoting Comito, 177 F.3d at 1171).
Here, Smith's post-hearing reasoning for Dontigny's absence being that Dontigny
was afraid to testify does not weigh heavily in Smith's favor, as Smith never spoke
to Dontigny and there is no evidence Dontigny would have been subject to a risk
of harm by testifying. Also, Smith relied solely on hearsay evidence to find
probable cause that Marble assaulted Dontigny, which precluded Marble from
cross-examining Dontigny about her statements to Officer Erickson regarding the
alleged assault. Poole was an inadequate substitute. Despite the reports and
charges, 2 a reasonable jury could find Marble's right to question Dontigny was
violated.
Marble argues that because the responsibility for contacting witnesses on
behalf of parolees in custody is placed on the supervising parole officer, a
2
Moreover, the State of Montana Probation and Parole Bureau Standard Operating
Procedure No. P&P 140-2, last revised August 20, 2007, provides that only when a parolee has
been convicted of new charges is probable cause clearly established. (Doc. 33-1at13, 14, 17.)
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reasonable jury could find that Poole also violated Marble's rights by failing to
notify Marble's witnesses. The Court disagrees. The Court in Morrissey
established that "due process is flexible and calls for such procedural protections
as the particular situation demands." 408 U.S. at 481. Although rule 20.2.209 and
Procedure No. 140-2 place the duty to contact witnesses on the supervising
officer, Smith (Poole's supervisor) relinquished Poole of his duty by undertaking
the task herself. Established law at the time of the preliminary hearing required
nothing more.
II.
Postdeprivation Remedy
"[A] state can cure what would otherwise be an unconstitutional deprivation
of 'life, liberty or property' by providing adequate postdeprivation remedies."
Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001). The United
States Supreme Court established this postdeprivation remedy rule in Parratt v.
Taylor, 451U.S.527 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984), cases in
which officials "acted in random, unpredictable, and unauthorized ways."
Zimmerman, 255 F.3d at 738. Therefore, Parratt and Hudson did not apply to the
Court's later decisions in Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982),
and Zinermon v. Burch, 494 U.S. 113 (1990), where officials acted "pursuant to
some established procedure." Zimmerman, 255 F .3d at 738.
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Smith argues that Parratt and Hudson apply here because Smith "violated"
the procedures she was acting under, rendering her actions random, unpredictable,
and unauthorized. Her argument, however, is unpersuasive according to Logan
and Zinermon, which apply in this case. In each of those cases, officials were
acting according to an established procedure, but they failed to adequately follow
the procedure and take notice of the error. Logan, 455 U.S. at 1152 (failure to
convene a factfinding conference within statutorily-required 120 days); Zinermon,
494 U.S. at 118-19 (procedural admission of mental patient as "voluntary"
without recognizing his incompetence to sign admission forms). Similarly, Smith
was acting according to the established procedures for conducting preliminary
hearings when she undertook to contact Marble's requested witnesses but failed to
inform them of the hearing and the necessity of their presence.
In accordance with Zinermon, the deprivation here took place at a
predictable time in the parole revocation process, that is when parole violations
have been reported and the preliminary hearing is to be conducted. 494 U.S. at
136. Also, predeprivation process was not impossible here because the parole
revocation procedures are themselves that process. Id. at 136-37. Finally,
Smith's conduct was not unauthorized given that Montana's statutes, rules, and
procedures addressing the parole revocation process delegate to parole officers the
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authority to report violations, conduct hearings, and initiate the necessary
procedural safeguards. Id. at 137. Because Parratt and Hudson do not apply, they
do not foreclose Marble's due process challenge.
Accordingly, IT IS ORDERED that the Findings and Recommendations
(Doc. 44) are ADOPTED IN FULL. Defendant Smith's motion for summary
judgment (Doc. 23) is DENIED as to Plaintiff Marble's witness notification claim,
and Defendant Poole's motion for summary judgment (Doc. 26) is GRANTED.
DATED this lJs4day of February, 2016.
loy, District Judge
istrict Court
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