Greer v. Glebe et al

Filing 67

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 65 Objections to Report and Recommendation filed by Jay Greer. **3 PAGE(S), PRINT ALL**(Jay Greer, Prisoner ID: 778203)(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 JAY GREER, 8 9 10 Plaintiff, CASE NO. C14-5657BHS ORDER ADOPTING REPORT AND RECOMMENDATION v. PATRICK GLEBE, et al., 11 Defendants. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 64), and 15 Plaintiff Jay Greer’s (“Greer”) objections to the R&R (Dkt. 65). 16 On November 3, 2016, Judge Creatura issued the R&R recommending that the 17 Court grant Defendants’ motion for summary judgment because Greer has failed to 18 submit evidence to establish his claims. Dkt. 64. On November 11, 2016, Greer filed 19 objections. Dkt. 65. On November 11, 2016, Defendants responded. Dkt. 66. 20 The district judge must determine de novo any part of the magistrate judge’s 21 disposition that has been properly objected to. The district judge may accept, reject, or 22 ORDER - 1 1 modify the recommended disposition; receive further evidence; or return the matter to the 2 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 3 In this case, Greer raises three issues in his objections. First, Greer contends that 4 Defendants violated a prison policy requiring intervention when an official has a “mere 5 suspicion” that an inmate is in danger. Dkt. 65 at 1–2. Even if such a policy exists, an 6 official’s violation of the policy does not establish a constitutional violation. Sandin v. 7 Conner, 515 U.S. 472, 481–82 (1995) (a “prison regulation [is] primarily designed to 8 guide correctional officials in the administration of a prison” and is “not designed to 9 confer rights on inmates . . . .”). While Greer may have some recourse for violation of a 10 policy, violation of this alleged policy does not rise to a violation of Greer’s Eighth 11 Amendment rights. 12 Second, Greer objects to Judge Creatura’s conclusion that Greer failed to submit 13 admissible evidence on certain issues. Dkt. 65 at 2. Greer was put on notice that “[a]ny 14 affidavits or declarations submitted must be signed under penalty of perjury.” Dkt. 56 at 15 1. Greer’s allegations regarding his conversation with Defendant Ken Erb were not 16 submitted under penalty of perjury and, therefore, are not admissible evidence. While 17 Greer did not have to record the conversation, he was obligated to attest to his version of 18 the conversation under penalty of perjury, which he did not do. Thus, the Court adopts 19 Judge Creatura’s conclusion on this issue. 20 Finally, Greer requests that the Court seal the record to provide protection. Dkt. 21 65 at 3. Judge Creatura concluded that Greer failed to comply with the local rule and 22 ORDER - 2 1 declined to consider Greer’s request. Dkt. 64 at 5. The Court agrees with Judge 2 Creatura. The relevant rule provides as follows: 3 4 5 6 7 A motion to seal a document, even if it is a stipulated motion, must include the following: (A) a certification that the party has met and conferred with all other parties in an attempt to reach agreement on the need to file the document under seal, to minimize the amount of material filed under seal, and to explore redaction and other alternatives to filing under seal; this certification must list the date, manner, and participants of the conference; (B) a specific statement of the applicable legal standard and the reasons for keeping a document under seal, with evidentiary support from declarations where necessary. 8 Local Rules, W.D. Wash. LCR 5(g)(3). Greer has not filed a motion in compliance with 9 the local rule, and the Court will not seal the record based on statements in requests in 10 other documents. 11 Therefore, the Court having considered the R&R, Greer’s objections, and the 12 remaining record, does hereby find and order as follows: 13 (1) The R&R is ADOPTED; (2) Defendants’ motion for summary judgment is GRANTED; (3) The Clerk shall enter JUDGMENT for Defendants and close this case; and (4) Greer’s in forma pauperis status is REVOKED for purposes of appeal. 14 15 16 17 Dated this 18th day of January, 2017. 18 A 19 20 BENJAMIN H. SETTLE United States District Judge 21 22 ORDER - 3

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