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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING 

DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT - 1 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

TONY D. PENWELL, 

 Plaintiff, 

 v. 

REED HOLTGEERTS, et al, 

 Defendants. 

CASE NO. C05-2044 RSM 

ORDER DENYING PLAINTIFF’S 

MOTION FOR SUMMARY 

JUDGMENT AND GRANTING 

DEFENDANTS’ CROSS MOTION 

FOR SUMMARY JUDGMENT 

I. INTRODUCTION 

This matter comes before the Court on remand from the United States Court of Appeals 

for the Ninth Circuit. Dkt. #66. Plaintiff has alleged a due process violation and seeks money 

damages under 42 U.S.C. §1983. 

II. BACKGROUND 

Plaintiff initially claimed that an infraction placed on his disciplinary record stemming 

from his conviction for damaging a library book violated his due process rights. Plaintiff’s 

amended complaint makes additional claims for pain and suffering as a result of this alleged 

violation of his due process rights. 

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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING 

DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT - 2 

Defendants subsequently removed the infraction from Plaintiff’s disciplinary record. 

Consequently, this Court struck the parties’ cross motions for summary judgment on Plaintiff’s 

due process claims as moot, concluding that Plaintiff no longer had any substantive injury. On 

appeal, the Ninth Circuit held that Plaintiff’s claims are not moot because a claim for money 

damages survives regardless of the mootness of a claim for declaratory or injunctive relief. The 

Ninth Circuit vacated this Court’s order striking as moot the parties’ cross motions for summary 

judgment, and directed that this Court consider the merits of those motions. This Court 

subsequently requested a Joint Status Report, in which Defendants requested leave to amend 

their Motion for Summary Judgment. Plaintiff objects to Defendants’ request to amend their 

Motion for Summary Judgment. 

III. DISCUSSION 

In order to succeed on a due process claim, a Plaintiff must first establish that he has a 

liberty or property interest at stake. See Board of Regents of State Colleges v. Roth, 408 U.S. 

564 (1972); Watson v. University of Utah Medical Center, 75 F.3d 569 (10th Cir. 1996). Plaintiff 

must also establish that he has been deprived of that interest by government action and that the 

deprivation occurred via a lack of process. See Gilbert v. Homar, 520 U.S. 924 (1997). 

Moreover, a person possesses a liberty interest in not having his confinement be unduly affected 

(or extended) because of a disciplinary record. See Wolff v. McDonnell, 418 U.S. 539 (1974). 

The Supreme Court has announced due process requirements for prison disciplinary hearings. 

Wolff, 418 U.S. at 563-66. However, since the infraction is no longer included on Plaintiff’s 

disciplinary record, plaintiff cannot be subjected to the possible negative consequences of having 

the alleged infraction placed on record. Moreover, because Plaintiff was never actually 

subjected to any discipline as a result of the infraction, no deprivation in fact occurred. 

Therefore plaintiff was not deprived of a protected interest for which he may seek redress. 

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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING 

DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT - 3 

Plaintiff claims that he is entitled to damages because he suffered physical and emotional 

harm as a result of the alleged due process violation. Even if a due process violation occurred, 

Plaintiff has not met his burden of showing any link between the alleged violation and the 

emotional and physical injuries for which he claims damages. In order to state a claim for 

damages under §1983, plaintiff must show that the injury is a consequence of a violation of a 

federally protected right. Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). Plaintiff 

has not provided any evidence that would tend to show a causal link or temporal connection 

between the conduct at issue and the alleged emotional and physical damage suffered. 

IV. CONCLUSION 

Having reviewed the relevant pleadings, the declarations and exhibits attached thereto, 

and the remainder of the record, the Court hereby finds and ORDERS: 

(1) Plaintiff’s Motions for Partial Summary Judgment (Dkt. #20) and Cross Motion for 

Summary Judgment (Dkt. #40) are DENIED. 

(2) Defendants’ Cross Motion for Summary Judgment (Dkt. #24) is GRANTED. 

(3) Defendants’ Request to Amend their Motion for Summary Judgment (Dkt. #76) is 

DENIED as this Order disposes of the matter. 

(4) This action is DISMISSED. The Clerk is directed to close this case. 

(5) The Clerk is directed to forward a copy of this Order to Defendants (pro se) and to 

all counsel of record. 

Dated January 3, 2011. 

A

RICARDO S. MARTINEZ 

UNITED STATES DISTRICT JUDGE 

 

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