Alverto v. Department of Corrections et al

Filing 118

ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, re 117 Objections to Report and Recommendation filed by Jerome Ceasar Alverto.Signed by Judge Robert J. Bryan. (JL) Paper copy sent to plaintiff @ Clallam Bay address . Modified on 4/23/2013 (JL).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JEROME CEASAR ALVERTO,
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Plaintiff,
v.
No. C11-5572 RJB

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DEPARTMENT OF CORRECTIONS,
C/O FINCH, C/O PERCIFIELD, C/O
GRIJALVA, SGT. C. ROOP, HERBERT
C. PENROSE, MICHAEL ESTES,
KRISTI ENTROP, DR. JUGUILON,
STEPHEN SINCLAIR, RAYMOND
BUCHMANN, C/O ADAMIRE, RON
FRAKER, ROB JACKSON,
COUNSELOR WALKER, KURT
GRUBB, C/O DELEON, C/O PALMER,
JASON ROMERO, ADELE
WILLIAMS, BRYAN MCGARVIE,
DARREN HEAWARD, DENISE
LARSON, LT. TOM TABER, JASON
ULRICH, and STATE OF
WASHINGTON,

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Defendants.

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ORDER ADOPTING REPORT AND
RECOMMENDATION GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

This matter comes before the Court on the Report and recommendation of U.S.
Magistrate Judge Karen L. Strombom. Dkt. 114. The Magistrate Judge recommends that

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Defendants’ motion for summary judgment be granted and Plaintiff’s federal claims against

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Defendants Ethan Finch, Kim Grijalva, Robert Percifeld, Jason Ulrich, Bryan McGarvie, Herbert

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Penrose, Darren Heaward, Adelaide Williams, Ronald Fraker, Stephen Sinclair, Robert Jackson,

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Department of Corrections, and State of Washington be dismissed with prejudice and the claims

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ORDER - 1

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against Defendant Raymond Buchmann be dismissed without prejudice for failure to exhaust.1

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Dkt. 114.

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supplemental jurisdiction over Plaintiff’s state law claims and that the state law claims be

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The Magistrate Judge further recommends that the Court decline to exercise

dismissed without prejudice.

Dkt. 114.

The Plaintiff filed objections to the Report and

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Recommendation. Dkt. 117.
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The Court has reviewed the Objections and finds that they are no more than a restatement

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of Plaintiff’s arguments made in response to the motion for summary judgment. The Magistrate

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Judge considered all relevant admissible evidence and Plaintiff fails to raise a genuine issue of

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material fact supporting any federal claims against these Defendants. Dkt. 114 pp. 1-40.

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Eighth Amendment Claims

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As detailed in the Report and Recommendation, the alleged conduct of Defendant Finch -

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a distasteful comment and lustful leering at Plaintiff’s naked body - is not objectively harmful
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enough to establish a constitutional violation. See Watison v. Carter, 668 F.3d 1108, 1112 (9th

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Cir. 2012); Somers v. Thurman, 109 F.3d 614, 616 (9th Cir. 1997). Similarly, assuming the truth

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of the allegations against Defendants Grijalva, Percifeld, Penrose, and Jackson, there is no

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evidence that any of them acted with deliberate indifference or that Plaintiff suffered any

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physical harm, or future risk of harm, as a result of their conduct. See Watison, 668 F.3d at

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1112-13. Addressing the allegations against Defendant Sinclair, there is no evidence to show

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that Defendant Sinclair was personally involved or participated in any violation of his
constitutional rights. There is also insufficient evidence to raise a genuine issue of material fact

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Plaintiff’s claims against Defendants Carolee Roop, Michael Estes, Kristi Entrop, Crispin Juguilon, Lawrence
Adamire, Ronald Fraker (Eighth Amendment claim only), Shawn Walker, Kurt Grubb, Daniel DeLeon, John
Palmer, Jason Romero, and Donald Taber were dismissed with prejudice on December 11, 2012. Dkts. 106, 110.

ORDER - 2

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as to whether Defendant Williams was deliberately indifferent to a substantial risk of serious

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harm to Plaintiff.

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Failure to Exhaust – Claim Against Defendant Buchmann
In addition to failing to raise a genuine issue of material fact as to any constitutional

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violation, Plaintiff’s claims against Defendant Buchmann are subject to dismissal for failure to
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exhaust administrative remedies.

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Fourteenth Amendment Claims

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Plaintiff’s Fourteenth Amendment claims against Defendants Ulrich, McGarvie,

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Heaward, and Fraker are subject to dismissal as these claims are not cognizable under 42 U.S.C.

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§ 1983. Heck v. Humphrey, 512 U.S. 477, 481 (1994); Neal v. Shimoda, 131 F.3d 818, 824 (9th

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Cir. 1997). Plaintiff’s claim of retaliation against Defendant McGarvie is subject to dismissal

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because Plaintiff has failed to present evidence of a constitutional violation.
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Eleventh Amendment – State of Washington and DOC
The claims against the State of Washington and Department of Corrections are subject to
dismissal as these entities are not subject to liability pursuant to 42 U.S.C. § 1983.

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Supplemental Jurisdiction

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Jurisdiction over the state law claims is declined as the Court has dismissed all claims

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over which it has original jurisdiction. See 28 U.S.C. § 1367.

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Defendant Denise Larson

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On December 11, 2012, the Court adopted the Report and Recommendation (Dkt. 106)

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granting Defendants’ motion for summary judgment (Dkt. 89). This Order dismissed the claims

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against Defendants Carolee Roop, Michael Estes, Kristi Entrop, Crispin Juguilon, Lawrence

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Adamire, Ronald Fraker (Eighth Amendment claim only), Shawn Walker, Kurt Grubb, Daniel
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DeLeon, John Palmer, Jason Romero, and Donald Taber. Denise Larson was also a party to the

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motion and the claims against Ms. Larson were subject to the Report and Recommendation. See

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Dkt. 106 pp. 15-18, 44-45. Denise Larson is entitled to summary judgment and dismissal of

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Plaintiff’s claims.

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CONCLUSION
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The Court, having reviewed the Report and Recommendation of Magistrate Judge Karen

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L. Strombom, the Objections to the Report and Recommendation, and the remaining record, does

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hereby find and ORDER:

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The Court adopts the Report and Recommendation (Dkt. 114).

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2.
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Defendants’ Motion for Summary Judgment (ECF No. 87) is GRANTED.
Plaintiff’s federal claims against Defendants Ethan Finch, Kim Grijalva, Robert
Percifeld, Jason Ulrich, Bryan McGarvie, Herbert Penrose, Darren Heaward,
Adelaide Williams, Ronald Fraker, Stephen Sinclair, Robert Jackson, Department
of Corrections, and State of Washington are DISMISSED WITH PREJUDICE.

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Plaintiff’s state claims are DISMISSED WITHOUT PREJUDICE.

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Plaintiff’s claims against Defendant Raymond Buchmann are DISMISSED
WITHOUT PREJUDICE for failure to exhaust.

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Plaintiff’s claims against Defendant Denise Larson are DISMISSED WITH
PREJUDICE.

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All claims against all parties having been dismissed (Dkts. 110 and 118), this
matter may be closed.

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The Clerk is directed to send copies of this Order to Plaintiff and to the
Hon. Karen L. Strombom.

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DATED this 23rd day of April, 2013

A

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ROBERT J. BRYAN
United States District Judge

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ORDER - 4