Howard v. Riley et al

Filing 83

ORDER - The Court ADOPTS the Findings and Recommendation (ECF 76 ). The State Defendants' motion for summary judgment (ECF 35 ) is GRANTED. The Chase Defendants' motion to dismiss (ECF 56 ) is GRANTED. Plaintiff's motions fo r partial summary judgment (ECF 42 , 47 ) are DENIED. The Court further finds that any appeal from this Order would be frivolous and thus would not be taken in good faith as that term is used in 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, Plaintiff's in forma pauperis status should be revoked. Signed on 9/12/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

STEPHEN CRITTENDEN HOWARD,
Plaintiff,

Case No. 2:17-cv-1098-AC
ORDER

v.
RHONDA RILEY, et al.,
Defendants.
Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in
this case on August 16, 2018. ECF 76. Judge Acosta recommended that Plaintiff’s motions for
partial summary judgment be denied, the State Defendants’ motion for summary judgment be
granted, and the Chase Defendants’ motion to dismiss be granted.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate judge’s findings and recommendations,
“the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report to which no objections are filed.”); United
States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court
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must review de novo magistrate judge’s findings and recommendations if objection is made, “but
not otherwise”). Although in the absence of objections no review is required, the Magistrates Act
“does not preclude further review by the district judge[] sua sponte . . . under a de novo or any
other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.
P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate
judge’s recommendations for “clear error on the face of the record.”
Plaintiff timely filed an objection. ECF 81. Plaintiff’s objections are in two categories—
that the prison did not have sufficient evidence to make its disciplinary findings and that the
prison might have recordings of its staff’s communications with Chase despite its assertions to
the contrary. Plaintiff does not object to the remainder of the Findings and Recommendation.
For those portions of Judge Acosta’s Findings and Recommendation to which neither
party has objected, this Court follows the recommendation of the Advisory Committee and
reviews those matters for clear error on the face of the record. No such error is apparent and the
Court adopts those portions of the Findings and Recommendation.
Regarding the first category of Plaintiff’s objections, Plaintiff’s dispute with the
sufficiency of the evidence, the Court notes that the sufficiency of the State Defendants’
evidence is not the issue in Plaintiff’s due process claim before this Court. As discussed by
Judge Acosta, the issue before this Court is whether Plaintiff was afforded the appropriate
process in his disciplinary action. “The Due Process Clause forbids the governmental deprivation
of substantive rights without constitutionally adequate procedure.” Shanks v. Dressel, 540 F.3d
1082, 1090–91 (9th Cir. 2008). “Notice and a meaningful opportunity to be heard are hallmarks
of procedural due process.” Ludwig v. Astrue, 681 F. 3d 1047, 1053 (9th Cir. 2012) (quotation
marks and alterations omitted) (quoting Guenther v. Comm’r, 889 F.2d 882, 884 (9th Cir. 1989)).

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The Court has reviewed de novo those portions of Judge Acosta’s Findings and
Recommendation to which Plaintiff objects regarding his due process claim, and agrees with
Judge Acosta’s reasoning that Plaintiff was given notice and a meaningful opportunity to be
heard, and therefore was afforded sufficient process. The Court adopts those portions of the
Findings and Recommendation.
Regarding the second category of Plaintiff’s objections, the Court has reviewed
Judge Acosta’s analysis and adopts those portions of the Findings and Recommendation relating
to Plaintiff’s public records request. Plaintiff’s objection based on speculation that there might be
a recording involving a conversation between a prison official and a Chase employee is rejected
because Plaintiff offers nothing other than sheer speculation that any such recording exists and
because, as discussed by Judge Acosta, the Fourteenth Amendment does not provide a right to
access government information.
The Court ADOPTS the Findings and Recommendation (ECF 76). The State Defendants’
motion for summary judgment (ECF 35) is GRANTED. The Chase Defendants motion to
dismiss (ECF 56) is GRANTED. Plaintiff’s motions for partial summary judgment (ECF 42, 47)
are DENIED. The Court further finds that any appeal from this Order would be frivolous and
thus would not be taken in “good faith” as that term is used in 28 U.S.C. § 1915(a)(3). See
Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, Plaintiff’s in forma pauperis
status should be revoked.
IT IS SO ORDERED.
DATED this 12th day of September, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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