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1 2 3 4 5 6 7 8 9 10 11 12 13 Mr. Jennings has not been properly served and therefore, the court lacks personal jurisdiction, 14 15 16 17 18 19 20 21 22 23 24 25 26 A. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff's Allegations and Summary Judgment in Favor of GEO Defendants Mr. Hernandez is a detainee at NWDC, a federal immigration detention facility administered under contract by The GEO Group, Inc. (See http://www.thegeogroupinc.com/ northamerica.asp?fid=105; http://www.ice.gov/pi/dro/facilities/tacoma.htm). Mr. Hernandez REPORT AND RECOMMENDATION - 1 and (2) Plaintiff's claims are moot and fail to state a claim in light of this court's previous grant of summary judgment. Id. Plaintiff Erick Hernandez has not filed a reply. His failure to do so may be viewed by the court as an admission that Defendant Jennings' motion has merit. Local Rule 7 (b)(2). Having carefully reviewed Defendant Jennings' motion and the balance of the record, the court recommends that the motion to dismiss be granted. v. DALE NELSON, et al., Defendants. Before the Court is the motion to dismiss of Defendant David W. Jennings. Dkt. 27. Defendant Jennings argues that Plaintiff's claims against him should be dismissed because (1) ERICK HERNANDEZ, No. C08-5242 FDB/KLS Plaintiff, REPORT AND RECOMMENDATION Noted for: February 12, 2010 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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alleges that he placed a sealed envelope in the mail addressed to a former detainee, Aboulaye Diallo, which contained an invoice from U.S. News and World Report. Dkt. 8, p. 5. The invoice belongs to a fellow detainee, Antolin Andrew Marks. Id. Mr. Hernandez alleges that Defendants Dale Nelson, George Wigen, B. Gabalis and [Carl] Jason Sadler ("the GEO Defendants") opened and read his mail outside of his presence in violation of the written

6 7 8 9 10 11 12 13 prejudiced because the GEO Defendants have been opening his legal mail as well as his regular 14 15 16 17 18 19 20 21 22 23 24 25 26 rights. Dkt. 8, p. 7.4. Defendants Dale Nelson, George Wigen, B. Gabalis and [Carl] Jason Sadler (collectively the "GEO Defendants") moved for summary judgment. Dkt. 12. By Order entered on July 21, 2009, this court granted the GEO Defendants' motion for summary judgment, finding that "the evidence, viewed in the light most favorable to Mr. Hernandez, reflects that the GEO Defendants REPORT AND RECOMMENDATION - 2 correspondence. Id., p. 7. Mr. Hernandez alleges that the GEO Defendants have failed to follow their own rules and by their actions, Defendants threaten the "sanctity of the ICE National Standards and they have no penological interest in opening the outgoing correspondence of the Plaintiff where it was clear that there was no contraband." Dkt. 8, pp. 7-8. Mr. Hernandez argues that the GEO Defendants' failure to follow their own rules resulted in a violation of his First Amendment policies set forth in the ICE National Detainee Handbook. He also asserts that his mail was opened in retaliation against him because he previously assisted Mr. Marks by submitting a declaration in litigation being pursued by Mr. Marks in an unrelated case (Antolin Andrew Marks v. John P. Torres, No. 07-1660 EGS). Id., pp. 7-8. Mr. Hernandez alleges that the GEO Defendants opened his mail with the specific intent to find evidence to prevent Mr. Marks from assisting him and others in the legal library. Id., p. 8. He also alleges that he has been

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were `adher[ing] to their written rules and policies,' in the handling of Mr. Hernandez's mail." Dkt. 25, pp. 23-24. B. Plaintiff's Allegations As To Defendant Jennings As to Defendant Jennings, Plaintiff alleges that: It is claimed that [Mr. Jennings] created an environment where Geo Group routinely violate the ICE National Standards and has failed to ensure that the contract between Geo and ICE where such contract stipulates that the ICE National Standards would be followed. It is claimed that [Mr. Jennings] actually encouraged the Geo Group, Inc. employees to skirt the policies." Dkt. 8, p. 8,

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