Terwilleger v. Washington, CASE NO. 3:17-CV-05360-RJB-DWC

• Decision Date: 30 October 2018
• Docket Number: CASE NO. 3:17-CV-05360-RJB-DWC
• Court: U.S. District Court — Western District of Washington
• Parties: BRIAN TERWILLEGER, Plaintiff, v. STATE OF WASHINGTON, et al., Defendants.

BRIAN TERWILLEGER, Plaintiff, v. STATE OF WASHINGTON, et al., Defendants.

CASE NO. 3:17-CV-05360-RJB-DWC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

October 30, 2018

REPORT AND RECOMMENDATION

Noting Date: November 16, 2018

The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel.PlaintiffBrian Terwilleger, proceeding pro se and in forma pauperis, initiated this civil rights action on May 15, 2017.Dkt. 1.

Plaintiff argues his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when Defendants failed to provide him access to the courts, confiscated some of his legal documents, and failed to adequately respond to his grievances.However, the undisputed evidence shows Plaintiff had access to an attorney for his underlying criminal trial and Plaintiff has failed to show he was frustrated in his attempt to file a nonfrivolous or arguable civil claim.Moreover, Plaintiff has not shown the confiscation of his legal documents implicates the Fourth Amendment, that it otherwise constitutes a violation of his right to counsel, or that any Defendant failed to adequately respond to his grievance.Therefore, the Court recommends Defendants' Motion for Summary Judgment("Motion")(Dkt. 76) be granted and Plaintiff's action be dismissed with prejudice.¹

I.Background

Plaintiff argues Defendants violated his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights.SeeDkt. 26.He argues Defendants failed to provide him adequate access to legal resources to litigate his underlying criminal trial -- despite having assigned counsel -- unlawfully seized legal documentation regarding federal civil lawsuit, and failed to adequately respond to his grievances.Id.Because Plaintiff has named Grays Harbor County as a Defendant, the Court interprets' Plaintiff's Complaint to argue Grays Harbor County also instituted a policy that failed to provide Plaintiff with adequate access to the courts.Id.

Defendants have now filed their Motion, arguing Plaintiff received adequate access to legal resources because he was represented for his underlying criminal trial, the Fourth Amendment was not violated when Defendants confiscated Plaintiff's legal documents regarding his civil lawsuit, and Defendants adequately responded to Plaintiff's grievances and grievance appeals.Dkt. 76.Defendants also argue the policy implemented by Grays Harbor County was not the moving force behind any alleged constitutional violation.Id.

Plaintiff opposes Defendants' Motion, raising new arguments that Defendants interfered not only with Plaintiff's underlying criminal trial, but also with a civil case Plaintiff attempted to file while he was a pretrial detainee.SeeDkt. 83.Defendants argue Plaintiff's new arguments were not raised in the original Complaint and so need not be addressed by the Court, but nonetheless address them on their merits.Dkt. 88.

II.Standard of Review

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."A party asserting a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).All facts and reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party.Furnace v. Sullivan, 705 F.3d 1021, 1026(9th Cir.2013) (citing Torres v. City of Madera, 648 F.3d 1119, 1123(9th Cir.2011);Tarin v. County of Los Angeles, 123 F.3d 1259, 1263(9th Cir.1997).

As the party moving for summary judgment, Defendants have the initial burden to demonstrate no genuine issue of material fact remains in this case.Celotex Corp. v. Catrett, 477 U.S. 317, 325(1986);In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387(9th Cir.2010).The movant"always bears the initial responsibility of informing the district court of the basis for its motion," and identifying those portions of the record, including pleadings, discovery materials, and affidavits, "which it believes demonstrate the absence of a genuine issue ofmaterial fact."Celotex, 477 U.S. at 323.Mere disagreement or the bald assertion stating a genuine issue of material fact exists does not preclude summary judgment.California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468(9th Cir.1987).A "material" fact is one which is "relevant to an element of a claim or defense and whose existence might affect the outcome of the suit," and the materiality of which is "determined by the substantive law governing the claim."T.W. Electrical Serv., Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630(9th Cir.1987).

Mere "[d]isputes over irrelevant or unnecessary facts," therefore, "will not preclude a grant of summary judgment."Id.Rather, the nonmoving party"must produce at least some 'significant probative evidence tending to support the complaint.'"Id.(quotingAnderson, 477 U.S. at 290);see alsoCalifornia Architectural Building Products, Inc., 818 F.2d at 1468("No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.").In other words, the purpose of summary judgment "is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."Lujan v. National Wildlife Federation, 497 U.S. 871, 888(1990)."If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it[.]"Fed R. Civ. P. 56(e)(3).

III.Discussion

A.Fifth Amendment Access to Courts

Plaintiff argues he was denied adequate access to the Courts under the Fifth Amendment because Defendants allegedly failed to provide Plaintiff adequate legal resources.Prisoners have a constitutional right under the Fifth Amendment to access to the courts.Bounds v. Smith, 430U.S. 817, 821(1977);Lewis v. Casey, 518 U.S. 343, 346(1996).This right of access to courts helps ensure that the unlawfully detained obtain their freedom, and that those lawfully detained have recourse for violations of their constitutional rights.Johnson v. Avery, 393 U.S. 483, 485(1969);Wolff v. McDonnell, 418 U.S. 539, 579(1974).

The Supreme Court has identified two types of access to courts claims: forward-looking and backward-looking.Christopher v. Harbury, 536 U.S. 403, 412-13(2002).In forward-looking cases, the plaintiff seeks to remove present roadblocks to presentation of a grievance to a court.Id. at 412-13.In backward-looking cases, the plaintiff seeks redress for as past inability to litigate a case caused by official action, and thus "the loss or inadequate settlement of a meritorious case."Id. at 413.In either instance, to prevail on a right to access claim, a plaintiff must provide sufficient information establishing a "nonfrivolous" or "arguable" underlying claim.Id. at 415.Here, Plaintiff argues a backward-looking access to rights claim.

"[M]eaningful access to the courts is the touchstone,"id. at 823, and "the inmate must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim,"Lewis, 518 U.S. at 351.Further, "[a]n inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense."Lewis, 518 U.S. at 351.

However, the scope of the right to access to the courts is limited and prisoners only need to have the "minimal help necessary" to file legal claims.Id. at 360.The right of access to the courts does not extend to a right to discover claims or litigate them once filed with a court.Id. at 354-55.Further, the Constitution does not mandate "that prisoners (literate or illiterate) be able to conduct generalized research, but only that they be able to present their grievances to the courts."Id. at 360(emphasis added);see alsoMadrid v. Gomez, 190 F.3d 990, 995(9th Cir.1999);Cornett v. Donovan, 51 F.3d 894, 898(1995), cert. denied sub nomHenry v. Caballero, 518 U.S. 1033(1996);Exmundo v. Kevorkian, 2009 WL 3416236, *3(E.D. Cal.Oct.22, 2009)(holding that litigating a case effectively is not a constitutionally protected right, and finding the plaintiff did not state an access claim when he alleged he had to secure extensions and speculated the outcome of a case may have been different had he been able to litigate more effectively);Ruth v. Glebe, 2015 WL 5156339, at *4(W.D. Wash.May 19, 2015)report and recommendation adopted, 2015 WL 5156362(W.D. Wash.Sept. 2, 2015).

Importantly, the Ninth Circuit has held the offer of appointed counsel, even if a prisoner does not avail himself of that counsel, is sufficient to prove a prisoner was provided adequate access to the courts pursuant to the Fifth Amendment.United States v. Wilson, 690 F.2d 1267, 1272(9th Cir.1982)(no Fifth Amendment violation when prisoner was denied access to law library to research underlying criminal charge, but had access to counsel appointed to represent him in the underlying criminal proceeding).The Fifth...