Smith v. Powell

Filing 80

ORDER: The Court, therefore, ADOPTS Magistrate Judge Beckerman's Findings and Recommendation 68 and, therefore, DENIES Plaintiff's Motion 42 for Partial Summary Judgment, GRANTS Defendant's Motion 46 for Summary Judgment, and DISMISSES this matter with prejudice. IT IS SO ORDERED. Signed on 3/28/2016 by Judge Anna J. Brown. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM M. SMITH,
Plaintiff,

2:14-cv-01725-SB
ORDER

v.
DAVE G. POWELL, individually
and in his official capacity
as a Hearings Officer at
Eastern Oregon Correctional
Institution,
Defendant.

BROWN, Judge.
Magistrate Judge Stacie F. Beckerman issued Findings and
Recommendation (#68) on January 25, 2016, in which she recommends
the Court deny Plaintiff’s Motion (#42) for Partial Summary
Judgment, grant Defendant’s Motion (#46) for Summary Judgment,
and dismiss this matter with prejudice.

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In addition, Magistrate

Judge Beckerman denied Plaintiff’s Motion (#59) to Stay Summary
Judgment Until Completion of Discovery and denied as moot
Defendant’s Motion (#44) to Stay Discovery.

Plaintiff filed

timely Objections to the Findings and Recommendation.

The matter

is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and
Federal Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate
Judge’s Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge’s
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).
I.

Plaintiff’s Objections to the Portion of the Findings and
Recommendation Regarding the Parties’ Cross-Motions for
Summary Judgment
When any party objects to any portion of the Magistrate

Judge’s Findings and Recommendation in which the Magistrate Judge
addresses a matter that is dispositive of a party’s claim or
defense, the district court must make a de novo determination of
that portion of the Magistrate Judge’s report.
§ 636(b)(1).

28 U.S.C.

See also Dawson v. Marshall, 561 F.3d 930, 932 (9th

Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003)(en banc).
Plaintiff contends the Magistrate Judge’s denial of his
substantive due-process claim was in error because the Magistrate
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Judge erroneously concluded the factors set out in Sandin v.
Conner, 515 U.S. 472 (1995), apply to this case.

Thus, according

to Plaintiff, the Magistrate Judge erroneously concluded
Defendant did not interfere with any recognized liberty interest,
and, therefore, Defendant was entitled to summary judgment on
Plaintiff’s substantive due-process claim.

In particular,

Plaintiff asserts the Magistrate Judge should not have applied
the Sandin factors to these circumstances and should have found
Defendant violated his due-process rights by denying Plaintiff a
fair hearing regarding his inmate disciplinary action because
Plaintiff’s alleged rule violation was not supported by any
evidence in the record.

See Burnsworth v. Gunderson, 179 F.3d

771, 774-75 (9th Cir. 1999).
Defendant, on the other hand, contends the Magistrate Judge
correctly found the Sandin factors are applicable to this case
because the reasoning of Burnsworth was rejected by the Supreme
Court in Swarthout v. Cooke, 562 U.S. 216 (2011).

Defendant also

contends Burnsworth is distinguishable because the disciplinary
action against Plaintiff was ultimately vacated and the fine
rescinded, even though it was not until after Plaintiff served
his full 120-day sentence in the Disciplinary Segregation Unit
(DSU).
In Burnsworth the Ninth Circuit held a prisoner’s dueprocess rights were violated in a disciplinary proceeding even

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though the prisoner was not deprived of any recognized liberty
interest under Sandin because the discipline was “totally
unsupported by evidence.”

179 F.3d at 775.

In Swarthout the Supreme Court addressed whether a
California state-law requirement that parole determinations must
be based on “some evidence” created a federal right protected by
the Due Process Clause.

652 U.S. 216.

After assuming the

prisoners had a liberty interest in parole, the Supreme Court
held the California “some evidence” rule did not become part of
the due-process inquiry.

Id. at 220.

The Court held the due-

process inquiry, therefore, was limited to whether the prisoners
had been provided with adequate notice of the reasons they were
denied parole and an opportunity to be heard.

Id.

The Court

specifically foreclosed the notion that the state-law “some
evidence” standard became part of the liberty interest in parole
when it observed:
It will not do to pronounce California’s “some
evidence” rule to be “a component” of the liberty
interest. . . . Such reasoning would subject to
federal-court merits review the application of all
state-prescribed procedures in cases involving liberty
or property interests, including (of course) those in
criminal prosecutions. That has never been the law.
To the contrary, we have long recognized that “a ‘mere
error of state law’ is not a denial of due process.”
Id. at 221-22 (quoting Engle v. Isaac, 456 U.S. 107, 121 n.21
(1982)).
This Court need not determine whether the Ninth Circuit’s

4 - ORDER

rationale in Burnsworth remains viable after Swarthout, however,
because Burnsworth is distinguishable from the facts of this
case.

In Burnsworth “there was no evidence” that the plaintiff

attempted to escape (179 F.3d at 773).

In this case, however,

there was at least some evidence that supported the charge.
Defendant found Plaintiff in violation of the rule regarding
“Compromising an Employee” of the Oregon Department of
Corrections (ODOC).

It is undisputed that the record before

Defendant in the hearing contained a letter written by Plaintiff
to a female county-jail volunteer religious-service provider in
which Plaintiff expressed a desire to unexpectedly visit the jail
volunteer after Plaintiff is released from prison and also
described in graphic detail multiple forcible rapes that
Plaintiff had committed in the past.

Although Defendant

erroneously concluded the county-jail volunteer was an “employee”
of ODOC within the meaning of the rule, this is not a case like
Burnsworth in which “there was no evidence” supporting the charge
because Defendant had evidence that Plaintiff wrote a sexuallythreatening letter to an individual who could conceivably be
considered an “employee” of ODOC.

See Burnsworth, 179 F.3d at

773.
To accept Plaintiff’s contention that the Sandin factors
were inapplicable to this case, therefore, would result in a
holding that any erroneous interpretation of state law (or prison

5 - ORDER

regulations) on the part of a prison hearings officer would per
se violate due process regardless whether the prisoner was
deprived of a liberty interest under Sandin.
however, is foreclosed by Swarthout.

Such a holding,

See 652 U.S. at 221-22.

Accordingly, the Court concludes the Magistrate Judge
appropriately determined the Sandin factors apply to this case.
Plaintiff does not object to the Magistrate Judge’s
conclusion that Plaintiff was not deprived of any recognized
liberty interest under the Sandin factors, and this Court does
not find any error in the Magistrate Judge’s conclusion.
Accordingly, the Court concludes the Magistrate Judge
appropriately concluded Defendant is entitled to summary judgment
on Plaintiff’s substantive due-process claim.
Thus, this Court has carefully considered Plaintiff’s
Objections and concludes Plaintiff’s Objections do not provide a
basis to modify the Findings and Recommendation.

In addition,

the Court also has reviewed the pertinent portions of the record
de novo and does not find any error in the Magistrate Judge’s
Findings and Recommendation.
II.

The Magistrate Judge’s Denial of Plaintiff’s Motion (#59) to
Stay Summary Judgment Until Completion of Discovery
In accordance with Rule 72(a), “[w]hen a pretrial matter not

dispositive of a party’s claim or defense is referred to a
magistrate judge to hear and decide, the magistrate judge must
promptly conduct the required proceedings and, when appropriate,
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issue a written order stating the decision.”

The standard of

review for a nondispositive order with objections is “clearly
erroneous” or “contrary to law.”

See also 28 U.S.C.

§ 636(b)(1)(A)(the “clearly erroneous or contrary to law”
standard of review applies to nondispositive motions).
After reviewing the record the Court concludes the
Magistrate Judge appropriately denied Plaintiff’s Motion to Stay
Summary Judgment Until Completion of Discovery because further
discovery would be futile.

CONCLUSION
The Court, therefore, ADOPTS Magistrate Judge Beckerman’s
Findings and Recommendation (#68) and, therefore, DENIES
Plaintiff’s Motion (#42) for Partial Summary Judgment, GRANTS
Defendant’s Motion (#46) for Summary Judgment, and DISMISSES this
matter with prejudice.
IT IS SO ORDERED.
DATED this 28th day of March, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

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