Keodara v. Boe

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA SAY SULIN KEODARA, CASE NO. 3:21-cv-5129 TMC-TLF Plaintiff, ORDER ON REPORT AND v. RECOMMENDATION JERI BOE and ROBERT HERZOG, Defendants.

This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge Theresa L. Fricke. Dkt. 66. The Court has considered the Report and Recommendation, objections, and responses to the objections and the remaining file. It is fully advised. On March 9, 2021, Plaintiff Say Keodara, a pro se prisoner, filed this case alleging that Defendants Jeri Boe and Robert Herzog violated his federal civil rights when they restricted his ability to have contact with or marry Melissa Mesa, a woman he maintains is his fiancée. Dkt. 8. He alleges that Ms. Mesa was not connected to the prison drug smuggling ring for which he was sanctioned. Id. He contends Defendants retaliated against him for filing prison grievances. Id. He asserts claims under the First Amendment, the Fourteenth Amendment, and the Eighth Amendment. Id. He seeks declaratory and injunctive relief as well as damages. Id. On February 4, 2022, Defendants Boe (the Superintendent of Clallam Bay Corrections

Center (“CBCC”), the prison where Mr. Keodara is housed) and Herzog (Washington’s Assistant Secretary for Prisons) filed a motion for summary judgment with supporting declarations. Dkts. 25–27. Later, on Defendants’ Motion, the Court sealed their initial motion for summary judgment and supporting declarations (id.) and those pleadings were not considered. Dkt. 58. Defendants were permitted to refile their Motion and supporting pleadings. Id. Defendants did so. Dkts. 60–64. The Court granted Mr. Keodara an extension of time to respond (see Dkt. 66), which he did, and he cross-moved for summary judgment. Dkt. 50. Defendants filed a reply (Dkt. 44) and supplemental reply (Dkt. 53). On September 15, 2022, the Report and Recommendation was filed. Dkt. 66. It recommends granting Defendants’ Motion for Summary Judgment (Dkt. 60), in part, and

dismissing all of Mr. Keodara’s claims for damages. Id. The Report and Recommendation recommends denying Defendants’ Motion on Mr. Keodara’s request for declaratory and injunctive relief as to his First Amendment retaliation and Fourteenth Amendment substantive due process right to marry claims against Defendant Boe. Id. It recommends finding that Mr. Keodara is not entitled to a jury trial on these two remaining claims and that he should be given a bench trial on them. Id. All parties filed objections to the Report and Recommendation. Dkts. 68 and 75. Defendants filed a response to Mr. Keodara’s objections. Dkt. 76. The case was reassigned to the undersigned on August 31, 2023. The Report and Recommendation (Dkt. 66) is ready for decision.

The Court adopts the Report and Recommendation in part and rejects it in part. Because Mr. Keodara has failed to put forth evidence creating genuine issues of fact, Defendants are entitled to summary judgment dismissal of all his claims as a matter of law. Defendants’ Motion for Summary Judgment (Dkt. 60) is granted, Mr. Keodara’s Motion for Summary Judgment

(Dkt. 50) is denied, and the case is dismissed. Since 2013, Mr. Keodara has been serving a prison sentence for first degree murder and three first degree assault convictions. Dkt. 61 at 5. At the time of these events, he was incarcerated at CBCC. Id. In April 2020, CBCC’s investigative unit received confidential information that inmates, persons in the community, and a prison staff member were buying and selling drugs in the community and buying, selling, and smuggling drugs into CBCC. Dkt. 61 at 5. The Federal Bureau of Investigation (“FBI”) and Olympic Peninsula Narcotics Enforcement Team (“OPNET”) joined CBCC in the investigation. Id.

According to Superintendent Boe and the CBCC’s primary investigator Conrad Artis, through review of confidential information, phone calls, JPay messages1, JPay pictures, and JPay videos, Mr. Keodara was identified as a “key member” of the drug operation. Dkts. 61 at 6 and 63 at 2. Melissa Mesa, Mr. Keodara’s alleged girlfriend/fiancée, was identified as the primary person in the community responsible for buying and selling the drugs. Id. Mesa was a U.S. Customs and Border Patrol agent. Id. Investigator Artis indicated that in coming to these conclusions about Mr. Keodara and Mesa, he reviewed hundreds of phone calls between the two of them, as well as calls between Mr. Keodara and other individuals where Mr. Keodara

1 JPay is the prison’s electronic messaging system. Dkt. 61 at 2. discussed Mesa. Dkt. 63 at 2. Superintendent Boe determined that Mesa’s position as a federal law enforcement officer posed “an even greater risk to security of the facility.” Dkt. 61 at 6. Other community members were also identified as working with Mr. Keodara in the drug operation. Dkt. 61 at 6.

The investigation continued. Dkt. 63 at 3. According to Investigator Artis, at the beginning of May 2020, the investigative team confirmed an incident where Mr. Keodara coordinated with Mesa and another community member to allow Mesa to purchase drugs, which she did. Id. She then dropped them off and they were smuggled into CBCC. Id. Investigator Artis states that by the end of May 2020, Mr. Keodara informed Mesa that she would be handling his money and drug operation. Dkt. 63 at 3. Mr. Keodara gave Mesa’s phone number to other offenders and people in the community so they could contact her about other transactions. Id. By July 2020, Mesa had multiple phones, phone numbers, and CashApp accounts. Id. According to Investigator Artis, Mr. Keodara and Mesa discussed the rising price of drugs and the use of various money transferring services. Id.

On August 10, 2020, Investigator Artis overheard two telephone conversations between Mr. Keodara and two other community members (Jania Smith and Dino Nguyen) about buying, selling, and smuggling a specific shipment of drugs into the CBCC using a prison correctional officer. See Dkt. 63-1 at 2–3. (Except for legal calls, certain CBCC staff are permitted to monitor prisoner calls. Dkt. 61-3 at 9.) On August 18, 2020, a prison correctional officer admitted his involvement in the drug operation. Dkt. 63 at 3. The officer was arrested, and the inmates involved in the operation (including Mr. Keodara) were transferred to the Intensive Management Unit. Id.

Superintendent Boe states that CBCC’s actions were coordinated with outside agencies “so as not to jeopardize the other agencies’ investigations.” Dkt. 61 at 9. Accordingly, the timing of CBCC’s actions, like movement of offenders and sanctions, was in part determined by the other agencies’ (the FBI’s or OPNET’s) needs. Id.

According to Mr. Keodara, on August 18, 2020, the CBCC’s head investigator interviewed him and asked for names of the corrections officers involved in the drug smuggling ring. Dkt. 51 at 6. Mr. Keodara denied knowing any information. Id. Mr. Keodara states that the investigator told him he “would give him time to think about it.” Id. Soon thereafter, an FBI agent informed Investigator Artis that Mr. Keodara and Mesa were calling each other frequently using other offenders’ PIN2 numbers and Mesa had several phones and phone numbers to make and receive calls. Dkt. 63 at 4. The FBI requested that all numbers associated with Mesa be blocked, which CBCC did. Id. The investigator returned to interview Mr. Keodara. Dkt. 51 at 6. Mr. Keodara declined. Id. On August 29, 2020, he filed a grievance complaining that his phone PIN was shut off.

Dkt. 63-2 at 2. He asserted in the grievance that the action was taken because he refused to be interviewed. Id. The grievance counselor reached out to Investigator Artis, who in turn contacted the FBI. Dkt. 63 at 4. The FBI said the block on numbers associated with Mesa could be lifted, and Artis lifted it by September 16, 2020. Id. On September 17, Mr. Keodara received a serious infraction under Washington Administrative Code 603 for bringing or attempting to bring drugs into the facility based on his

2 PIN numbers are “personal identification numbers” which offenders must use to make calls. Dkt. 61 at 3. Offenders are responsible for all calls made with their PINs. Id. interactions with Jania Smith and Dino Nguyen. Dkt. 63-1 at 2–4. His interactions with Mesa were not listed as grounds for the infraction. Id. According to CBCC Investigator Artis, shortly after he lifted the phone number block, the FBI again asked that all numbers associated with Mesa be blocked. Dkt. 63 at 4. The FBI

contended that Mr. Keodara and Mesa were impeding their criminal investigation. Id. The CBCC blocked all numbers associated with Mesa. Id. On October 5, 2020, Mr. Keodara filed another grievance complaining that his PIN had been restricted again to call “certain family” “for no reason.” Dkt. 63-3 at 2. After consulting the FBI, by October 22, 2020, CBCC again lifted the block on numbers associated with Mesa. Dkt. 63 at 5. Mr. Keodara received a hearing on his infraction on October 28, 2020. Dkt. 63-1 at 5– 50. He was present, and both sides presented evidence and questioned witnesses. Id. CBCC also considered confidential information. Id. Mr. Keodara was found guilty. Id. As part of his sanction, he was forbidden from having contact with Jania Smith and Dino Nguyen. Id. Mr.

Keodara did not appeal the infraction. Dkt. 61 at 7. On November 4, 2020, Superintendent Boe permanently terminated Mesa’s visitation and communication privileges with all offenders at CBCC. Dkt. 61 at 7. As grounds for her action in the termination letter, Superintendent Boe pointed out that “in May 2020 it is believed that [Mesa], in concert and at the direction of incarcerated individual Keodara, assisted, aided and/or conspired to introduce contraband into CBCC.” Dkt. 61-9 at 2. Although it was not in the termination letter, Superintendent Boe states that her “decision was based on the extensive evidence [she] was provided from [CBCC’s investigative unit] and the FBI which showed that Mesa was the primary person Keodara communicated with for his money and drug activity.”

Dkt. 61 at 7. She further noted that Mesa was a federal law enforcement officer with U.S. Customs and Border Patrol, and she believed “Mesa’s position as a federal law enforcement officer, her behavior, and her criminal activity makes her a risk to the safety and security of the prison.” Id.

CBCC sent Mr. Keodara a copy of the termination letter. Dkt. 61-9 at 2. Mesa was informed that she could appeal the decision regarding visitation but not the decision regarding communication to the Assistant Secretary of Prisons (Dkt. 61-9 at 2), which Mesa did (Dkt. 61- 10). In her appeal to Assistant Secretary of Prisons Herzog, Mesa denied any wrongdoing and insisted she did not know the basis for the allegations. Dkt. 61-10. “Based on records review, due to safety and security concerns,” Hertzog denied her appeal on December 14, 2020. Dkt. 61- 11. Superintendent Boe denies knowing about Mr. Keodara’s two grievances (regarding his PIN being turned off) before she permanently terminated Mesa’s communication and visitation privileges with the facility. Dkt. 61 at 8.

In March 2021, CBCC investigators and the FBI executed a warrant on Mesa’s residence. Dkt. 61 at 8. According to CBCC Investigator Artis, whose unit assisted in executing the warrant, they found evidence of Mesa’s role not only in buying, selling, and smuggling drugs into CBCC, but also into other prisons. Dkt. 63 at 5. Superintendent Boe learned of the evidence found through the warrant. Dkt. 61 at 8. Further investigation into the activities of Jania Smith resulted in CBCC permanently terminating Ms. Smith’s communication privileges with CBCC as well. Dkt. 63 at 5. In August 2021, several months after this case was filed, the CBCC discovered that Mr. Keodara and Mesa were circumventing the permanent communication restriction. Dkt. 61 at

9. On August 2, 2021, Mr. Keodara received an infraction for violation of WAC 718 – “using the mail telephone or electronic communications in violation of any law, court order or previous written warning, direction and/or documented disciplinary action.” Dkt. 63-2. He was found guilty. Id. According to Superintendent Boe, Mr. Keodara and Mesa “continue to find ways

around the communication restrictions. Mesa uses new phone numbers, new emails, and new user accounts to contact Keodara and other offenders” at CBCC. Id. This Court reviews the Report and Recommendation de novo. 28 U.S.C. § 636(b)(1)(C). The standard for summary judgment is in the Report and Recommendation (Dkt. 66 at 2–3) and is adopted here. The Court will address the parties’ objections by claim. A. First Amendment Retaliation Claim – Defendants’ Objections

The Report and Recommendation properly states the test for a First Amendment retaliation claim in the context of a prison: “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Dkt. 66 at 8 (quoting Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)). The Report and Recommendation recommends finding issues of fact regarding the fifth element: that the decision to restrict Mesa from communicating or visiting the CBCC (including with Mr. Keodara) did not reasonably “advance legitimate correctional goals” but was in retaliation for Mr. Keodara having filed two grievances. Dkt. 66 at 8. The Report and Recommendation points to the following statement in Mr. Keodara’s Declaration: “Ms. Mesa never brought drugs into CBCC or any other DOC facility nor did I ever direct her to.” Id. (citing

Dkt. 51 at 4). Mr. Keodara reasons that if Mesa was not involved in the drug ring, restricting his access to her could not have furthered penological goals and was only done in retaliation for his grievances. Id. Defendants persuasively object that Mr. Keodara does not have personal knowledge to

support his sweeping statement that “Mesa never brought drugs into the CBCC or any other DOC facility.” It is a conclusory allegation unsupported by personal knowledge and not admissible in court. Fed. R. Ev. 602; Fed. R. Ev. 802. Mr. Keodara has been incarcerated since 2013. Although he can attest to his own communications with Mesa, he has no personal knowledge of her conduct in the community or interactions with others, and his assertion cannot create a genuine dispute with the abundant evidence submitted by Defendants of Mesa’s drug smuggling activity. A “self-serving declaration that states only conclusions and not facts that would be admissible evidence” is insufficient to create a genuine factual dispute. Nigro v. Sears, Roebuck and Co., 784 F.3d 495, 497 (9th Cir. 2015). The Court therefore declines to adopt this portion of the Report and Recommendation.

Mr. Keodara has failed to present competent evidence to support the fifth element of his retaliation claim—that the decision to ban Mesa from communicating with people at or visiting CBCC “did not reasonably advance a legitimate correctional goal.” Rhodes at 568. He has the burden to do so. Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). Defendants, in contrast, offer ample evidence that termination of Mesa’s communication and visitation privileges advanced the legitimate correctional goals of keeping the facility safe and reducing the presence of illegal drugs. Defendants had significant evidence that Mesa (once a federal law enforcement officer) was a key player in a prison drug smuggling ring. Superintendent Boe’s decision to ban Mesa from access to CBCC was reasonably calculated to

reduce the likelihood that more illegal drugs would enter the facility. “[S]ubstantial deference” is accorded to the professional judgment of prison administrators, “who bear a significant responsibility for defining the legitimate goals of a correctional system and for determining the most appropriate means to accomplish them.” Griffin v. Gomez, 741 F.3d 10, 20 (9th Cir. 2014).

They must be “free to take appropriate action to ensure the safety of inmates and corrections personnel.” Id. at 21. Defendants also persuasively object that Mr. Keodara has failed to point to issues of fact regarding the second element of his retaliation claim—the “because of” or motive element. This issue was not discussed in the Report and Recommendation. A plaintiff creates a genuine issue of material fact on the question of retaliatory motive when they produce, in addition to evidence that the defendant knew of the protected speech, at least “(1) evidence of proximity in time between the protected speech and the allegedly retaliatory decision, (2) evidence that the defendant expressed opposition to the speech or (3) evidence that the defendant’s proffered reason for the adverse action was false or pretextual.”

Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009). Mr. Keodara has offered no evidence of Superintendent Boe’s alleged retaliatory intent beyond the timeline of events. While timing can be “circumstantial evidence of retaliatory intent,” it is not enough when “there is little else to support the inference” and “insufficient evidence” that prison officials “were actually aware” of the protected speech. Pratt, 65 F.3d at 808. Superintendent Boe denies knowing of Mr. Keodara’s grievances before she terminated Mesa’s communication and visitation privileges. Mr. Keodara offers no evidence that Superintendent Boe knew of his grievances before she acted. “[M]ere speculation that

defendants acted out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). Mr. Keodara has failed to establish issues of fact on the second element of his claim. Even pro se parties, whose pleadings are liberally construed, must identify some competent evidence to support their claim. Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018).

Mr. Keodara has failed to do so on at least two elements of his First Amendment retaliation claim. The Court will dismiss this claim with prejudice. B. Substantive Due Process Right to Marry Claim – Defendants’ Objections

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). At the same time, prisoners retain only those rights that are not inconsistent with their status as prisoners or “with the legitimate penological objectives of the corrections system.” Gerber v. Hickman, 291 F.3d 617, 620 (9th Cir. 2002) (cleaned up). The Fourteenth Amendment’s due process clause protects a prisoner’s right to marry, but, like many other rights, it “is subject to substantial restrictions as a result of incarceration.” Turner, 482 U.S. at 95. Turner requires that a restriction on a prisoner’s right to marry be “reasonably related” to a legitimate penological interest. Turner at 96–97. In Turner, the Supreme Court considered the constitutionality of a regulation prohibiting inmate marriages unless the superintendent found compelling reasons to allow the marriage. While Turner held that regulation swept too broadly, the Court nonetheless recognized that “legitimate security concerns may require placing reasonable restrictions upon an inmate’s right to marry and may justify requiring the approval of the superintendent.” Id. at 97. Here, Mr. Keodara may not marry Mesa because she is banned from CBCC, and DOC policy allows inmate marriages only to individuals on the inmate’s approved visitor list, unless the Assistant Secretary for Prisons grants an exception. See Dkt. 61 at 5; Dkt. 51 at 37. The

Report and Recommendation urges finding questions of fact with Defendants’ proffered basis for banning Mesa from the facility—that is, whether the decision was reasonably related to legitimate penological objectives. Dkt. 66 at 11. It again points to the Mr. Keodara’s statement that Mesa was not involved in the drug ring. Id.

The Court declines to adopt the Report and Recommendation regarding Mr. Keodara’s Fourteenth Amendment right to marry. As stated above, Mr. Keodara does not have personal knowledge of Mesa’s conduct in the community and his statements are not sufficient to genuinely dispute the evidence of her involvement in trafficking drugs into CBCC and other DOC facilities. Given that evidence, and her position as a former federal law enforcement officer, Mesa’s permanent exclusion from CBCC was “reasonably related” and not “an exaggerated response” to the prison’s legitimate security objectives in keeping illegal drugs out of the CBCC. Turner, 482 U.S. at 97–98. While her exclusion results in an infringement on Mr. Keodara’s right to marry her, that restriction is consistent with the prison’s legitimate security concerns. The Court dismisses Mr. Keodara’s Fourteenth Amendment right to marry claim.

C. Fourteenth Amendment Procedural Due Process Claim – Plaintiff’s Objections The Court adopts the Report and Recommendation’s recommendation that Mr. Keodara’s procedural due process claim be dismissed. In his objections, Mr. Keodara points out that “the Department categorizes the termination of visitation with a specified individual as a serious violation sanction.” Dkt. 75 at 3. He asserts that Mesa’s exclusion from communicating or visiting anyone at the prison functions as a sanction against him. Id. He notes that after he and Mesa were caught violating Superintendent Boe’s communication ban, he was sanctioned. Id. Procedural due process claims require analysis of two steps: (1) whether there exists a liberty or property interest with which the State has interfered, and if so (2) “whether the procedures attendant upon that deprivation were constitutionally sufficient.” Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). As to the first step, a protected liberty interest “may arise from two sources—the Due Process Clause itself and the laws of the States.” Id. Mr. Keodara’s claim fails at the first step. He has failed to show that Defendants

infringed on a protected liberty interest when they terminated Mesa’s visitation and communication privileges at CBCC. The Constitution does not guarantee prisoners the right to contact visits, Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002), or communication with a particular visitor, Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). Further, to the extent Mr. Keodara turns to the prison’s regulations as a source of a protected liberty, courts now do not examine the language of the regulations. Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (citing Sandin v. Conner, 515 U.S. 472 (1995)). Instead, courts consider “the hardship caused by the prison’s challenged action relative to the basic conditions of life as a prisoner.” Id. (internal quotation marks and citation omitted). As the Report and Recommendation notes (Dkt. 66 at 12), a liberty interest in the prison context includes only

“freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Mitchell, 75 F.3d at 522 (quoting Sandin, 515 U.S. at 484). Mr. Keodara’s assertion that he has a liberty interest in communication or visitation with Mesa is unavailing. He has not shown that restraint from visiting or communicating with her is an “atypical and significant hardship” considering his incarceration and Ms. Mesa’s conduct. CBCC regulations provide several grounds by which DOC may exclude an individual from visiting or communicating with a prisoner. For example, Washington State DOC Policy 450.300 IX.B, “Denial, Suspension or Termination of Visits” provides that persons involved in

“attempting/conspiring to introduce . . . contraband will have their visit privileges suspended or permanently terminated.” Dkt. 61-5 at 11. Mr. Keodara fails to demonstrate that application of this policy was a relative hardship. The Court will dismiss his claim for violation of his Fourteenth Amendment procedural due process rights.

D. Fourteenth Amendment Equal Protection Claim—Plaintiff’s Objections

The Court adopts the Report and Recommendation’s decision that Mr. Keodara’s equal protection claim should be dismissed. In his objections, Mr. Keodara indicates he is asserting a “class of one” equal protection claim. Dkt. 75 at 8. He contends he had a right to procedural due process, which he maintains is non-discretionary, and that other similarly situated offenders (who were accused of some violation) were given that process and he was not. Id. at 8–9. To maintain a claim for class-of-one equal protection, Mr. Keodara must show he has been “(1) intentionally (2) treated differently from others similarly situated and that (3) there is no rational basis for the difference in treatment.” SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122–23 (9th Cir. 2022) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). As stated in the Report and Recommendation, Mr. Keodara has failed to point to issues of fact on this claim. He has not demonstrated that he was intentionally treated differently from others similarly situated. Although the record contains statements from various prisoners regarding their contacts with people outside the prison (including Mesa) and the CBCC’s alleged response, Mr. Keodara has not demonstrated these offenders were similarly situated. Nor has he shown there was “no rational basis for the difference in treatment,” given the evidence of his and Mesa’s involvement in drug smuggling discussed above. Id.

Moreover, “the class-of-one doctrine does not apply to forms of state action that ‘by their nature involve discretionary decision-making based on a vast array of subjective, individualized assessments.’” Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (quoting Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 603 (2008)). The decision to exclude an individual from

communication or visitation at a prison is, at its core, a discretionary decision by a prison administrator based on subjective assessment. Mr. Keodara fails to point to evidence that Superintendent Boe used her discretion in a pattern regarding all other offenders but treated him differently. “Absent any pattern of generally exercising the discretion in a particular manner while treating one individual differently and detrimentally, there is no basis for Equal Protection scrutiny under the class-of-one theory.” Towery, 672 F.3d at 660–61. The Court will adopt the Report and Recommendation on this point and dismiss Mr. Keodara’s equal protection claim. E. Eighth Amendment Claim—No Objections The Court adopts the Report and Recommendation with respect to dismissal of Mr. Keodara’s Eighth Amendment claim. Mr. Keodara did not meaningfully object to this

portion of the Report and Recommendation. F. Qualified Immunity—Plaintiff’s Objections The Report and Recommendation recommends granting Defendants qualified immunity for Mr. Keodara’s damages claims. Because the Court concludes Mr. Keodara has not put forth evidence showing a violation of his constitutional rights, the Court need not address qualified immunity. Pearson v. Callahan, 555 U.S. 223 (2009).

G. Plaintiff’s Remaining Objection Mr. Keodara’s remaining objection, that he is entitled to a jury trial on his claim for declaratory and injunctive relief, is without merit as stated in the Report and Recommendation. Moreover, each of his claims should be dismissed with prejudice.

The Court declines to adopt the Report and Recommendation (Dkt. 66) as to Mr. Keodara’s First Amendment retaliation and Fourteenth Amendment substantive due process right to marry claims and instead dismisses those claims. The Court adopts the Report and Recommendation as to dismissal of the remaining claims. Defendants’ Motion for Summary Judgment (Dkt. 60) is granted and Mr. Keodara’s Motion for Summary Judgment (Dkt. 50) is denied. Mr. Keodara’s claims will be dismissed with prejudice and this case closed. It is ORDERED that: • The Report and Recommendation (Dkt. 66) IS:

o NOT ADOPTED as to Plaintiff’s First Amendment retaliation and Fourteenth Amendment substantive due process right to marry claims; o ADOPTED as to the dismissal of Plaintiff’s remaining claims; • Defendants’ Motion for Summary Judgment (Dkt. 60) IS GRANTED; • Plaintiff’s Motion for Summary Judgment (Dkt. 50) IS DENIED; • All Plaintiff’s claims ARE DISMISSED WITH PREJUDICE; and • This case IS CLOSED. • Plaintiff’s IFP status should continue if he chooses to appeal.

The Clerk is directed to send uncertified copies of this Order to Judge Theresa L. Fricke, all counsel of record, and to any party appearing pro se at said party’s last known address. Dated this 29th day of September, 2023. A Tiffany M. Cartwright United States District Court Judge