Vega, Jr v. United States of America et al

Filing 102

ORDER denying pltf's 93 Motion for Reconsideration ; renoting dfts' 92 MOTION for Reconsideration : Noting Date 2/15/2013, by Judge Ricardo S Martinez.(RS)cc Vega

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JUAN D. VEGA, JR.,
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Plaintiff,
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v.

Case No. C11-632-RSM

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UNITED STATES OF AMERICA, et al.,
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Defendants.

ORDER DIRECTING RESPONSE TO
DEFENDANTS’ MOTION FOR
RECONSIDERATION AND DENYING
PLAINTIFF’S MOTION FOR
RECONSIDERATION

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This matter is before the Court on Plaintiff and federal Defendants’ motions for
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reconsideration (Dkt. ## 92, 93). For the reasons that follow, the Court directs Plaintiff to
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respond to Defendants’ motion and DENIES Plaintiff’s motion.
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I. FEDERAL DEFENDANTS’ MOTION FOR RECONSIDERATION
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Federal Defendants request reconsideration of the Court’s November 1, 2012 Order (Dkt.
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# 91) dismissing all but Plaintiff’s procedural due process claim against them. Pursuant to Local
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Civil Rule 7(h)(3), the Court directs Plaintiff to respond to federal Defendants’ argument that
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ORDER DIRECTING RESPONSE TO MOTION FOR RECONSIDERATION - 1

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they are protected under the doctrine of qualified immunity. The government argues that even if

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Plaintiff was denied procedural due process, a governmental entity’s failure to follow a rule or

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regulation, by itself, does not support a claim for violation of a plaintiff’s constitutional rights.

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Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2009). The Defendants further contend that while the

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right to procedural due process is clearly established, the right of a convicted prisoner to a

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hearing prior to disciplinary action is not, and for that reason, they should be entitled to qualified

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immunity.

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The determination of whether a right was clearly established “must be undertaken in light

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of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S.

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194, 201 (2001). The individual circumstances of the case do not, however, provide a basis for

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qualified immunity if “the unlawfulness was apparent in light of preexisting law.” Jensen v. City

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of Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998) (internal citation omitted). Therefore, the

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question is “whether the state of the law” in 2008 gave Defendants “fair warning” that Plaintiff’s

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transfer was unconstitutional. Id.

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Plaintiff’s response brief shall be no longer than seven pages in length and shall be filed

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by February 11, 2013. Federal Defendants’ reply brief shall be no longer than five pages in

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length and shall be filed by February 15, 2013.

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II. PLAINTIFF’S MOTION FOR RECONSIDERATION
“Motions for reconsideration are disfavored.” Local Civil Rule 7(h)(1). “The court will

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ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or

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a showing of new facts or legal authority which could not have been brought to its attention

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earlier with reasonable diligence.” Id.

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ORDER DIRECTING RESPONSE TO MOTION FOR RECONSIDERATION - 2

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Plaintiff argues that “[h]ad the Court used the correct regulations in effect on October 16,

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2008, Plaintiff’s claim that the disciplinary hearing held on October 23, 2008, violated his rights

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to a timely hearing pursuant to ‘FBOP’ regulations would have been confirmed.” The Court

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disagrees. Dkt. # 93, p. 9. While the Court considered Plaintiff’s argument under 28 C.F.R. §

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541.7(c) and 28 C.F.R. § 541.8(c)—regulations that did not become effective until March 1,

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2011—application of the 2008 regulations provided by Plaintiff does not change the outcome.

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Plaintiff contends that under 28 C.F.R. § 541.11 and 28 C.F.R. § 541.15(b), he was entitled to a

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hearing within three work days after the incident report was created. However, 28 C.F.R. §

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541.15(b) states: “[e]ach inmate so charged is entitled to an initial hearing before the UDC,

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ordinarily held within three work days…” (emphasis added). The regulation simply suggests

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that the hearing occurs within three work days, it does not require it. Likewise, table 2 of 28

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C.F.R. § 541.11 also includes the word ordinarily. The Court appreciates Plaintiff’s readiness to

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point out its use of the timely inappropriate regulation. The Court finds that the inaccuracy does

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not amount to manifest error, as it was not decisive of the Court’s Order. The language of the

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regulation was cited in the previous order as an illustration that the hearing was conducted within

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the suggested, not mandatory, time frame. Dkt. # 91, p. 7.

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Plaintiff also contends that it was his belief that upon completion of the institutional

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residential drug abuse treatment program, he would be released from prison on his “presumptive

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release date of February 15, 2009.” Dkt. # 93, p. 15. In support, Plaintiff cites to 28 C.F.R.

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550.58, which states in part, “[a]n inmate who . . . completes a residential drug treatment

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program during his or her current commitment may be eligible . . . for early release . . . .”

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(emphasis added). Dkt. # 94, p. 15. The word may “means a discretionary right, privilege, or

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ORDER DIRECTING RESPONSE TO MOTION FOR RECONSIDERATION - 3

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power.” 28 C.F.R. 500.1(f) (emphasis added); Dkt. # 94, p. 2. Furthermore, a “prisoner has no

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independent constitutional right to conditional release before the expiration of a valid sentence.”

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Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979).

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Therefore, the Court finds that Plaintiff failed to establish that he had a right to be released on his

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presumptive release date. Accordingly, Plaintiff’s motion for reconsideration is DENIED.

III. CONCLUSION

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Having reviewed the motions and the remainder of the record, the Court hereby finds and
ORDERS:
(1) Plaintiff’s motion for reconsideration (Dkt. # 93) is DENIED.
(2) The parties are directed to respond to the federal Defendants’ motion for
reconsideration (Dkt. # 92) according to the briefing schedule set forth above.

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(3) The Clerk is directed to re-note Defendants’ motion (Dkt. # 92) for February 15, 2013

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and send a copy of this Order to Plaintiff and counsel for Defendants William Brown,

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Oranda Phillips, and Kevin Straight.

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DATED this 17th day of January 2013.

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A

RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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