Moe v. Bertsch et al

Filing 42

ORDER ADOPTING 37 REPORT AND RECOMMENDATIONS; finding as moot 40 Motion to Continue; and granting 32 Motion for Summary Judgment by Chief Judge Ralph R. Erickson.(SH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
David A. Moe,
Plaintiff,
Case No. 3:13-cv-30
-vsORDER ADOPTING REPORT AND
RECOMMENDATIONS

Leann K. Bertsch, Director North
Dakota Department of Corrections and
Rehabilitation, and Robyn
Schmalenberger, Warden, North Dakota
State Penitentiary,
Defendants.

On December 4, 2014, the undersigned received a Report and Recommendation
from the Honorable Karen K. Klein, United States Magistrate Judge, pursuant to 28
U.S.C. § 636, recommending that the defendants’ motion for summary judgment be
granted and Plaintiff David A. Moe’s complaint be dismissed with prejudice.1 Moe filed
an objection to the Report and Recommendation.2 In his objection, Moe reiterates his
claims that he has a property interest in the funds in his account and was deprived of
funds without due process.
It is indisputable that Moe was given a notice of disciplinary hearing for the
alleged violation of “destruction, alteration or misuse of state or personal property”.3
The notice informed Moe that he had the right to call witnesses and present

1

Doc. #37.

2

Doc. #38.

3

Doc. #33-2, p. 27.

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documentary evidence.4 The notice also informed Moe that the Warden may withdraw
funds for payment of sanctions.5 The notice stated: “This is your notification that an
administrative hearing will be held at the same time and place for the purpose of
determining whether funds may be withdrawn from your inmate accounts for payment
of sanctions.”6
Following Moe’s objections, the Court conducted a de novo review of the record.
While Moe received a copy of the incident report with an estimate for the replacement
cost, the Court appreciates Moe’s concern that the notice of disciplinary hearing states
that the hearing will encompass the alleged violation and whether the Warden may
withdraw funds for payment of sanctions, but it does not clearly state that this is his only
opportunity to contest the amount of restitution if found guilty of the alleged violation.
The Court also appreciates Moe’s concern that he was overcharged for the replacement
value and only reimbursed after he filed the present lawsuit. Despite the mistake and
arguable lack of clarity, the Court cannot conclude that Moe received inadequate
procedural protection rising to the level of a constitutional violation.
Accordingly, the Court hereby overrules Moe’s objections and adopts the Report
and Recommendation in its entirety. For the reasons set forth therein, the defendants’
motion for summary judgment is GRANTED. Moe’s complaint is DISMISSED with
prejudice.
The Court finds that any appeal would be frivolous, could not be taken in good

4

Id.

5

Id.

6

Id.

2

faith, and may not be taken in forma pauperis.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 6th day of January, 2015.
/s/ Ralph R. Erickson
Ralph R. Erickson, Chief Judge
United States District Court

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