Opinion
Case No. C09-1546-RSM
09-04-2012
GREGORY TYREE BROWN, Plaintiff, v. ELDON VAIL, et al., Defendants.
ORDER
The Court, having reviewed the renewed cross-motions for summary judgment, the Report and Recommendation of United States Magistrate Judge Brian A. Tsuchida, the governing law, and the balance of the record, does hereby find and ORDER:
(1) The Report and Recommendation is ADOPTED IN PART as set forth below;
(2) Department of Corrections ("DOC") Secretary Bernard Warner (in his official capacity) is substituted as defendant for former DOC Secretary Eldon Vail (in his official capacity);
(3) Summary judgment is GRANTED on the procedural due process claim in favor of plaintiff and against defendants with respect to (a) Sergeant Lopez (in his individual and official capacity), and (b) DOC Secretary Warner (in his official capacity);
(4) Summary judgment is GRANTED on the procedural due process claim in favor of defendants and against plaintiff with respect to (a) former DOC Secretary Vail (in his individual capacity, (b) Sergeant Lopez (in his official capacity) for damages, and (c) DOC Secretary Warner (in his official capacity) for damages;
(5) The Court DECLINES TO ADOPT the prospective declaratory and injunctive relief recommended by Magistrate Judge Tsuchida in favor of plaintiff and against Sergeant Lopez (in his official capacity) and DOC Secretary Warner (in his official capacity). DOC has determined that it will amend the definition of nuisance contraband and DOC policy 420.375 to address the concerns expressed in the Magistrate Judge's Report and Recommendation. See Dkt. #65. The parties have not fully briefed the adequacy of the proposed changes to DOC policy. Therefore, the Court declines to decide as a matter of law at this time whether Plaintiff is entitled to additional declaratory and/or injunctive relief.
(6) Supplemental jurisdiction is EXERCISED over plaintiff's state-law claims;
(7) Summary judgment is GRANTED in favor of defendants on plaintiff's other federal claims regarding (a) the First Amendment, (b) the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), (c) takings, (d) facial vagueness/overbreadth under the First Amendment, and (e) void for vagueness as-applied under the Due Process Clause;
(8) Plaintiff is INVITED to file a motion for appointment of pro bono counsel within thirty (30) days of the date of this Order to assist with all further proceedings, including submission of a joint status report regarding a schedule for mediation, settlement, supplemental dispositive motions, and trial with respect to (a) damages and (b) state-law claims; and
(9) The Clerk of Court is directed to send copies of this Order to plaintiff and to Magistrate Judge Brian A. Tsuchida.
_______________
RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE