Markussen v. Warner et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 21 Objections to Report and Recommendation filed by Mark Markussen. **3 PAGE(S), PRINT ALL**(Mark Markussen, Prisoner ID: 355143)(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 MARK A. MARKUSSEN, 8 9 10 Plaintiff, v. BERNARD WARNER, et al., 11 Defendant. CASE NO. C16-5251BHS-DWC ORDER DENYING PLAINTIFF’S MOTION TO ADD ADDITIONAL EVIDENCE AND ADOPTING REPORT AND RECOMMENDATION 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 15), Plaintiff 15 Mark Markussen’s (“Markussen”) objections to the R&R (Dkt. 21), and Markussen’s 16 motion to add additional evidence (Dkt. 22). 17 On August 16, 2016, Judge Christel issued the R&R recommending that the Court 18 grant Defendants’ motion for summary judgment because Markussen failed to submit 19 sufficient evidence in support of his claims and failed to show that three of the four 20 defendants personally participated in the alleged unlawful conduct. Dkt. 15. On 21 November 9, 2016, Markussen filed objections, Dkt. 21, and a motion to add additional 22 evidence, Dkt. 22. On November 17, 2016, Defendants responded. Dkt. 24. ORDER - 1 1 A. 2 Although Markussen’s motion is titled as a motion to add additional evidence, he Additional Evidence 3 fails to identify what additional evidence he seeks to add in support of his claims. 4 Instead, he set forth conclusory government conspiracy allegations and requests that he 5 should be exonerated, immediately released, and compensated for false imprisonment. 6 Dkt. 22 at 1–2. The Court concludes that the motion is wholly without merit and denies 7 the motion. 8 B. 9 The district judge must determine de novo any part of the magistrate judge’s R&R 10 disposition that has been properly objected to. The district judge may accept, reject, or 11 modify the recommended disposition; receive further evidence; or return the matter to the 12 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 13 In this case, Markussen has failed to show any error in the R&R. First, Defendant 14 David Bailey is the only individual that personally participated in the allegedly improper 15 act of opening Markussen’s legal mail. Markussen failed to submit any evidence to 16 counter this finding. Therefore, the Court adopts the R&R dismissing the other three 17 defendants for lack of personal participation. 18 Second, Markussen fails to show that Judge Christel’s conclusions on the merits of 19 his claims are erroneous. Markussen failed to establish a First Amendment claim because 20 he failed to show interference with a legal proceeding or repeated interference with his 21 allegedly legal mail. See, e.g., Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (“Davis 22 fails to state a constitutional claim for violating his right to send and receive legal mail ORDER - 2 1 because he alleges neither the establishment of an ongoing practice by prison officials of 2 interfering with his mail nor any harm suffered by him from the tampering.”). Markussen 3 failed to establish a Due Process claim because the evidence in the record shows that he 4 was provided at least two opportunities to remove the rejected material from his mail 5 before sending and that he refused to remove it. Markussen failed to show what more 6 process is due. Markussen’s retaliation claim fails because he failed to establish any 7 dispute of material fact on every element of this claim. Dkt. 15 at 14–15. Therefore, the 8 Court having considered the R&R, Markussen’s objections, and the remaining record, 9 does hereby find and order as follows: 10 (1) The Court DENIES Markussen’s motion (Dkt. 22); 11 (2) The R&R is ADOPTED; 12 (3) Defendants’ motion for summary judgment is GRANTED; 13 (4) Markussen’s in forma pauperis status is REVOKED; and 14 (5) The Clerk shall enter JUDGMENT for Defendants and close this case. 15 Dated this 27th day of January, 2017. A 16 17 BENJAMIN H. SETTLE United States District Judge 18 19 20 21 22 ORDER - 3

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