Starns v. Williamson et al

Filing 35

ORDER: Granting Motion for Summary Judgment 30 . No genuine issues of material fact remaining in this case and the defendants are entitled to judgment as a matter of law. Clerk is directed to enter a judgment dismissing this action with prejudice. Signed on 12/3/2013 by Chief Judge Ann L. Aiken. Copy of this order and judgment sent to Pro Se plaintiff. (rh)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
KYLE STEARNS,
Plaintiff ,

2:13-cv-00479-AA

v.

ORDER

LEONARD WILLIAMSON, et al.,
Defendants.
AIKEN, District Judge.
Plaintiff,
Department
Eastern

of

an

inmate

Corrections

Oregon

in

the

(ODOC),

Correctional

custody
was

a

Correctional

Officer

at

EOCI,

the

disciplined

Institution

unilaterally assaulted another inmate.

of

(EOCI)

Oregon
at

the

after

he

Defendant Dave Powell,
relied

on

credible

confidential informants at the hearing and assessed sanctions
against plaintiff.
Plaintiff filed a complaint pursuant to 42 U.S.C.

§

1983

alleging that defendants violated his due process rights and
his rights under the Oregon Constitution (for injury to his

1 - ORDER

reputation)

and

at

common

now

move

law

for

libel,

slander

and

defamation.
Defendants
Plaintiff -

who

has

for

summary

received the

judgment

(#30) .

Summary Judgment

advice

notice - has not filed a response.
The facts giving rise to plaintiff's claims are set forth
in defendant's Memorandum in Support
declarations.

(#31)

and supporting

As noted above, they have not been controverted

or contested by plaintiff.
The
hearing,

record
the

reflects

that

at

plaintiff's disciplinary

disciplinary hearings

officer

statements of two confidential informants.
that

the

confidential

disclosing

the

informants

confidential

were

informants'

( DHO) relied on

The DHO determined
reliable

and

identities

that
would

endanger them.
The record further reflects that plaintiff's request to
call

witnesses

plaintiff's
However,

was

request

defendant

denied.
to

review

Powell

was

Defendant

Powell

surveillance
informed by

agreed

camera
a

to

video.

correctional

officer that there was no usable video.
alleges

Petitioner

that

defendants

violated

his

substantive due process rights in that he was not convicted by
proof beyond a reasonable doubt.
However,

2 - ORDER

in

the

context

of

priison

disciplinary

proceedings,

due process requires

only "some evidence" to

support the disciplinary decision. Superintendent v. Hill, 472
U.S. 445, 454 (1985).
relevant

Under the "some evidence" standard, the

inquiry is whether there

is

any evidence in the

record that could support the decision.
F.3d 1283,

1287

(9th Cir.

2003)

Bruce v.

Ylst,

351

(quoting Superintendent v.

Hill, 472 U.S. at 455-456).
In this case, there was confidential eyewitness testimony
from

two

credible

sources

victim's assailant.

identifying

plaintiff

as

his

The evidence also established that the

victim was transported to the hospital and treated for serious
wounds. The witness accounts linking plaintiff to the victim
and the evidence of serious wounds constitutes "some evidence"
to support
"Inmate

a

finding that plaintiff committed the act

Assault

I."

Accordingly

the

DHO

decision

of
to

discipline plaintiff for his conduct was supported by "some
evidence" and did not violate plaintiff's

substantive due

process rights.
The Supreme Court has outlined the constitutional due
process requirements for prison disciplinary proceedings as
follows:

" ( 1)

written notice of the charged misconduct at

least 24 hours before the hearing;
body;

(2)

an impartial hearing

(3) an opportunity to present witnesses and documentary

evidence; (4) assistance for illiterate inmates, or in complex

3 - ORDER

cases, and (5) a written statement of the evidence relied upon
and

the

reasons

McDonnell,

for

418 U.S.

the

539,

sanction
563-72

imposed."

(1974).

Wolff

see

v.

Although an inmate

has the right to call witnesses at a disciplinary hearing,
that

right

witnesses

is

not

must

safety or

unlimited.

"not

be

correctional

An

unduly
goals"

inmates's

hazardous
and

a

right

to

to

call

institutional

hearings

officer may

decline an inmate's request to call a witness "whether it be
for irrelevance, lack of necessity, or the hazards present in
individual cases. Id. at 566.
Plaintiff alleges that his procedural due process rights
were violated because he was not permitted to call his victim
as

a

witness

to

support his

defense.

However,

it is

well

established that a DHO may deny an inmate's request to call a
witness in light of security concerns.
reasonably

concluded

that

allowing

In this case the DHO

plaintiff

to

call

his

victim as a witness would have posed hazards to the victim and
exercised

his

Supplemental

discretion

Powell

to

exclude

Declaration

the

(submitted

witness.
for

In

See

Camera

inspection) explaining the decision.
Plaintiff also alleges that his due process rights were
violated

because

he

was

not

permitted

to

produce

video

surveillance video tape at his hearing.
However,

4 - ORDER

as

noted

above,

it

was

determined

that

no

surveillance video of the assault existed. Defendants cannot
be liable for failing to produce evidence that did not exist.
In addition, plaintiff has not established that the outcome of
his hearing would have been different if the video tape had
been available.
Plaintiff allegs that the DHO should have summarized the
confidential informant statements for him so that he could
rebut the statements at his hearing.
inmates

do

not

have

a

However, as noted above,

constitutional

right

to

confront

confidential informant witnesses or otherwise cross examine
witnesses at disciplinary hearings.
The

record is

clear

that

plaintiff was

afforded the

constitutional due process guarantees outlined in Wolff, and
that there was some evidence to support the DHO decision.
Accordingly, I find that defendants are entitled to judgment
as

a

matter

of

lw

and

it

is

not

necessary

to

address

defendants other arguments in detail.
However, for the sake of the record, I find as follows:
Defendants
liability

are

for

entitled

damages

to

because

qualified
they

did

immunity
not

from

violate

plaintiff's clearly established constitutional rights.

See,

Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Saucier v. Katz,
533

u.s. 194, 206 (2001).
There

5 - ORDER

are

no

alleged

facts

from

which

it

could

be

concluded

that

defendants

Williamson

or

Coursey

were

personally involved in any deprivation of plaintiff's rights.
See,

Stevenson v. Koskey, 877 F.2d 1435, 1439 (9th Cir. 1989);

Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978).
Plaintiff has no private right of action to sue for money
damages

under

the

Oregon

Constitution.

Eugene, 309 Or. 298, 303-04
Or. 174

Hunter

v.

City

of

(1990); Barcik v. Kubiaczyk, 321

(1995).

Plaintiff's common law claims are barred by the Eleventh
Amendment because under the Oregon Tort Claims Act, the State
of Oregon - not the individual parties - are the only proper
defendants.

ORS 30.265(3).

Based on all of the foregoing,

I find that there are no

genuine issues of material fact remaining in this case and
that defendants are entitled to judgment as a matter of law.
Defendants' Motion. for Summary Judgment (#30) is allowed.

The

Clerk is directed to enter a judgment dismissing this action
with prejudice.
Any appeal from this order or judgment of dismissal would
be frivolous and not taken in good faith.
DATED

this~ay

of December, 2013.

Ann Aiken
United State District Judge

6 - ORDER