Remington v. Myrick et al
OPINION & ORDER: Plaintiff's Motion for Leave to Amend 22 is Granted and Defendants' Motion to Dismiss 15 is Granted. This action is Dismissed with prejudice. Signed on 8/3/17 by Magistrate Judge Paul Papak. (gm)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OPINION AND ORDER
MYRICK, et al.,
PAPAK, Magistrate Judge:
Prose plaintiff Nicholas Remington brings this civil rights action under 42 U.S.C. §1983
against prison officials at the Two Rivers Correctional Institution (TRCI), including
Superintendent John Myrick, Lt. Cam A. Bauer, Cap't David Pedro, Larry P. Lytle, OIC, and
C.O. Lavelle Braun. Plaintiff alleges that while he was in custody at TRCI, he was placed in the
Disciplinary Segregation Unit (DSU) for six days, violating his rights to procedural due process
under the Fourteenth Amendment. Plaintiff also alleges that in DSU, lights were left on
constantly, and excessive noise from other inmates and from loud faucets made sleeping difficult,
violating his rights to be free from cruel and unusual punishment under the Eighth Amendment.
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Defendants move to dismiss for failure to state a claim. Plaintiff moves to file an
amended complaint. For the following reasons, I grant Plaintiffs motion to file an amended
complaint and Defendants' motion to dismiss, and dismiss this action with prejudice.
The following background is from Plaintiffs proposed First Amended Civil Rights
Complaint (Am. Compl.). 1 Plaintiff was housed in the Administrative Housing Unit at TRCI on
May 25, 2016, when a corrections officer told him that an inmate named Daniel Garges 2 was
scheduled to be placed in the unit that afternoon. The officer told Plaintiff that TRCI staff were
aware of a 2008 "conflict order" that the Oregon Depmiment of Corrections (ODOC) had issued
for Plaintiff and Garges. The officer showed Plaintiff a photo of Garges, but Plaintiff did not
remember him or what Plaintiff describes as the "minor verbal incident" that gave rise to the
2008 conflict order. Am. Comp!.
That afternoon in a common area, Garges and
Plaintiff talked amicably. Plaintiff describes Garges as "empathetic." Am. Comp!.
The next day, Plaintiff and Garges were moved to the Disciplinary Segregation Unit
(DSU) without justification and in violation of ODOC rules. Am. Comp!.
document requesting the administrative hold for Plaintiff stated that Plaintiff and Garges "have
an institution separation that expired after their release from prison. This conflict is ongoing.
Both Inmates will be placed in ... Segregation until a solution can be determined." Comp!., Ex.
1, at 1, ECF No. 2-1.
Defendants state that their arguments for dismissal apply equally to Plaintiffs initial complaint,
ECF No. 2, and to Plaintiff's proposed first amended complaint, ECF No. 15. Defs.' Reply 1 n.1, ECF
No. 29. I agree with Defendants that there is no substantive difference between the two complaints.
Sometimes spelled "Garages" by Plaintiff.
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Plaintiff alleges that during his six days in DSU, he was subjected to "24 hour in cell
illumination uncontrollable by Plaintiff that was sufficient to [interfere] with Plaintiffs sleeping
patterns." Am. Comp!.
25. He alleges that he also experienced "[e]xtreme noise levels at all
hours" from inmates "yelling from cell to cell, tier to tier, and section to section," and from leaky
faucets that made a "loud sucking noise sufficient to wake anyone up from a sound sleep without
Plaintiff alleges that he has exhausted his administrative remedies. Plaintiff submits as
exhibits his initial grievance, ODOC's responses to his grievance, and his appeals of the
responses. Am. Comp!., Ex. 1. Plaintiffs grievance complained that his placement in DSU
violated ODOC rules, but did not mention conditions of confinement such as lighting or noise.
A complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard ... asks for more than a
sheer possibility that a defendant has acted unlawfully." kl (citations omitted). The comt is not
required to accept legal conclusions, unsuppmied by alleged facts, as true. Id.
The comi should construe the pleadings of a pro se litigant more leniently than those
drafted by a lawyer. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). '"Unless it is
absolutely clear that no amendment can cure the defect, ... a pro se litigant is entitled to notice
of the complaint's deficiencies and an oppo1iunity to amend prior to dismissal of the action."'
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Garity v. APWU Nat'! Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original)
(quoting Lucas v. Dep 't ofCorr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)).
I. Plaintiffs Eighth Amendment Claims
Plaintiff asserts that conditions in DSU violated his Eighth Amendment rights.
Defendants move to dismiss Plaintiffs Eighth Amendment claim, arguing that he failed to
exhaust administrative remedies for this claim. Plaintiff responds that ODOC rules would have
prohibited him from filing a second grievance about conditions at DSU in addition to his
grievance about the alleged due process violations.
A. The Prison Litigation Reform Act's Exhaustion Requirement
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires that prisoners
exhaust "such administrative remedies as are available" before bringing an action challenging
prison conditions. See Ross v. Blake,_ U.S. _ _, 136 S. Ct. 1850, 1856 (2016). "Requiring
exhaustion provides prison officials a 'fair opportunity to correct their own errors' and creates an
administrative record for grievances that eventually become the subject of federal court
complaints." Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (quoting Wood.fordv. Ngo, 548
U.S. 81, 94 (2006)). The PLRA's "exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). An
inmate must complete any prison administrative process that could address his complaint and
provide some relief, even if the grievance process does not pennit the relief the inmate seeks,
such as money damages. Id. at 524. Because Congress created the PLRA's exhaustion
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requirement, comts may not create exceptions to it. See Ross, 136 S. Ct. at 1857-58 (rejecting
"special circumstances" exception to exhaustion requirement).
Failure to exhaust administrative remedies is an affirmative defense that the defendant
must plead and prove. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en bane). "Once the
defendant has carried that burden, the prisoner has the burden ... to come forward with evidence
showing that there is something in his particular case that made the existing and generally
available administrative remedies effectively unavailable to him." Id. at 1172. "However, ...
the ultimate burden of proof remains with the defendant." Id.
B. Applying the Exhaustion Requirement
Here, Defendants have met their initial burden of showing that Plaintiff failed to exhaust
administrative remedies as to conditions in DSU. Plaintiff contends that he should be excused
from exhausting administrative remedies because he has shown that the administrative remedies
were "effectively unavailable to him." Id.
Construing the word "available" as used in the PLRA, the Supreme Comt has explained
that "an inmate is required to exhaust those, but only those, grievance procedures that are
'capable of use' to obtain 'some relief for the action complained of."' Ross, 136 S. Ct. at 1859
(quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). An imnate may show that an
administrative remedy, "although officially on the books," is not available if (1) "it operates as a
simple dead end," with officers "unable or consistently unwilling to provide relief"; or (2) the
"administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use"; or
(3) the prison administrators, tln·ough "machination, misrepresentation, or intimidation," "thwart
inmates from taking advantage of a grievance process." Id. at 1859-60. "Under the PLRA,
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futility does not excuse a failure to exhaust; there is no futility exception to the PLRA exhaustion
requirement." 1\;JcClure v. ODOC, No. 02-cv-1011-AS, 2005 WL 425469, at *7 (D. Or. Feb. 23,
2005); Booth, 532 U.S. at 741 n.6 ("we will not read futility or other exceptions into statutory
exhaustion requirements where Congress has provided otherwise").
In arguing that administrative remedies were not available to him, Plaintiff contends that
a grievance about conditions in DSU would be barred by Oregon Administrative Rule (OAR)
291-109-01403(e), which prohibits inmates from grieving "[m]isconduct repo1is, investigation
leading to or arising from misconduct reports, or disciplinmy hearings, findings and sanctions."
But here ODOC placed Plaintiff in DSU for administrative, not disciplinary reasons, and the
prison accepted Plaintiffs grievance challenging his placement in DSU. Plaintiff cannot show
that a grievance concerning conditions in DSU would have been barred by OAR 291-10901403(e) as concerning disciplinmy proceedings.
Plaintiff also contends that he could not file a grievance challenging conditions in DSU
because of OAR 291-109-0140(2), which prohibits inmates from filing more than one grievance
per incident. Plaintiff does not explain why he did not mention conditions in DSU in the
grievance he filed. Plaintiff does not allege that prison officials improperly rejected a grievance
on DSU conditions, or prevented him from filing such a grievance. "[A]n inmate's reasonable
mistake about, misunderstanding of, or disagreement with a prison's grievance procedure" does
not show that the grievance procedure was unavailable. Crum v. Beal, No. 6: l 6-cv-0600-HZ,
2017 WL 1946314, at *4 (D. Or. May 8, 2017) (citing Ross, 136 S. Ct. at 1858). An inmate's
"misinterpretation of the regulation is insufficient to prove that a regulation is so 'opaque' that, in
a practical sense, it is unavailable." Id. at *5. Here, as in Crum, "There is no dispute . . . that
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Plaintiff was aware of the grievance procedure and that he failed to file one." Id. I conclude as a
matter oflaw that Plaintiff has failed to show exhaustion of remedies as to his Eighth
Amendment claim, requiring dismissal of that claim. See Albino, 747 F.3d at 1169 (in "rare
cases," failure to exhaust "is clear on the face of the complaint").
Defendants also contend that Plaintiff has failed to allege facts showing that any
individual defendant was personally responsible for the alleged deprivation of his Eighth
Amendment rights. I need not address this argument because of my ruling on the exhaustion of
II. Plaintiff's Fourteenth Amendment Due Process Claim
Defendants concede that Plaintiff exhausted his administrative remedies as to his
Fomteenth Amendment due process claim. Defendants contend, however, that they are entitled
to qualified immunity on the due process claim.
A. Qualified Immunity
Coutts should resolve qualified immunity issues as soon as possible because immunity is
intended to shield officials from the burdens oflitigation. Pearson v. Callahan, 555 U.S. 223,
232 (2009). "Qualified immunity shields government actors from civil liability under 42 U.S.C.
§ 1983 if 'their conduct does not violate clearly established statuto1y or constitutional rights of
which a reasonable person would have known."' Castro v. Cty. ofLos Angeles, 833 F.3d 1060,
1066-67 (9th Cir. 2016) (en bane) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
ruling on qualified immunity, the court asks"( 1) whether the officer's conduct violated a
constitutional right, and (2) whether that right was clearly established at the time of the incident."
Id. (citing Pearson, 555 U.S. at 232). Qualified immunity protects '"all but the plainly
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incompetent or those who knowingly violate the law."' Burns v. Reed, 500 U.S. 478, 494-95
(1991) (quoting 1'1alley v. Briggs, 475 U.S. 335, 341 (1986)).
B. Plaintiff's Due Process Claim
The Fomieenth Amendment provides that no State shall "deprive any person of life,
liberty, or property, without due process of law." "Due process 'is a flexible concept that varies
with the particular situation."' Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015) (quoting
Zinermon v. Burch, 494 U.S. 113, 127 (1990)). "Due process protections extend only to
deprivations of protected interests." Id.
Here, Defendants argue that Plaintiff has not alleged facts showing that he had a protected
liberty interest in avoiding the six-day placement in DSU. An inmate has "a liberty interest under
the federal constitution when a change occurs in confinement that imposes an 'atypical and
significant hardship ... in relation to the ordinary incidents of prison life."' Resnick v. Hayes,
213 F.3d 443, 448 (9th Cir. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). In
"determining whether a prison hardship is atypical and significant," '"courts look to a "condition
or combination of conditions or factors [that] requires case by case, fact by fact consideration."'
Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir.2003) (quoting Keenan v. Hall, 83 F.3d 1083,
1089 (9th Cir.1996) ). In making this determination, courts are guided by the t1u·ee factors
named in Sandin: "( 1) disciplinary segregation was essentially the same as discretionary forms
of segregation; (2) a comparison between the plaintiff's confinement and conditions in the
general population showed that the plaintiff suffered no 'major disruption in his environment';
and (3) the length of the plaintiff's sentence was not affected." Sandin, 515 U.S. at 486-87.
Applying the Sandin factors here, I conclude that Defendants have shown that the due
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process right Plaintiff asse1ts was not clearly established. "Typically, administrative segregation
in and of itself does not implicate a protected liberty interest." Serrano v. Francis, 345 F.3d
1071, 1078 (9th Cir.2003). For example, an inmate had "no protected libe1ty interest" in
avoiding placement in segregated housing pending a disciplinary hearing. Resnick, 213 F.3d at
448; Sandin, 515 U.S. at 487 (inmate had no liberty interest in being free from 30 days'
confinement in disciplinary segregation). Plaintiffs six days in DSU, without more, would not
give rise to a protected liberty interest.
However, in addition to the confinement itself, Plaintiff also alleges that constant noise
and lighting in DSU made sleep difficult. In Serrano, the Ninth Circuit explained that an inmate
in segregation may show a protected liberty interest based on an atypical, significant deprivation.
In Serrano, the inmate was paralyzed and alleged that he was held for nearly two months in
segregation, where he was denied use of the wheelchair he had used while in the general
population, "could not take a proper shower," "could not use the toilet without hoisting himself
up by the seat," "had to crawl into bed by his arms," "could not partake in outdoor exercise," and
"was forced to drag himself around a vermin and cockroach-infested floor." Serrano, 345 F.3d at
1078. The Ninth Circuit determined that the inmate's allegations, if true, showed that he had
been forced "to endure a situation far worse than a non-disabled prisoner sent to the SHU would
have to face," so his confinement "'worked a major disruption in his envirorunent' and ceased to
mirror those conditions imposed upon inmates in administrative segregation and protective
custody." Id. (quoting Sandin, 515 U.S. at 486). The Ninth Circuit concluded that "it is not [the
plaintiff's] administrative segregation alone that potentially implicates a protected liberty
interest," but the im1iate's "disability--coupled with administrative segregation in an SHU that
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was not designed for disabled persons--gives rise to a protected liberty interest." Id, 345 F.3d at
1079; see also Brown v. Or. Dep'I of Corr., 751F.3d983, 988 (9th Cir.2014) (liberty interest
arose when inmate was held for 27 months in solitary confinement for 23 hours per day, with
nearly no interpersonal contact and a denial of most privileges afforded to those in the general
The Ninth Circuit noted in Serrano that the facts there presented a "novel situation," and
the court has since emphasized that "[o]nly the most extreme change in conditions of
confinement have been found to directly invoke the protections of the Due Process Clause .... "
Chappell v. lvfandeville, 706 F.3d 1052, 1063 (9th Cir. 2013). 4 As one district court has
explained, "Showing that a deprivation is 'atypical' with respect to the hardships of ordinary
prison life is difficult, because prison conditions are typically harsh." Hernandez v. Cox, 989 F.
Supp. 2d 1062, 1069 (D. Nev. 2013).
In arguing that the law on this issue is not clearly established for qualified immunity
purposes, Defendants cite two post-Serrano decisions. In Barboza v. Kelsey, No. 03-cv-3855
AHM (AJW), 2011 WL 6091079 (C.D. Cal. Mar. 18, 2011), adopted, 2011WL6090154 (C.D.
Cal. Dec. 5, 2011 ), the plaintiff was held in administrative segregation while prison officials
detem1ined whether he was a security risk. The plaintiff was double-celled with an inmate who
In Brown, the Ninth Circuit concluded that the defendants were entitled to qualified immunity.
751 F.3d at 989-90.
In Chappell, the court held that the defendant prison officials were entitled to qualified
immunity when they held an inmate on a seven-day contraband watch under conditions including 24-hour
lighting, mattress deprivation, taping the inmate into two pairs of underwear and jumpsuits, placing him
in a hot cell with no ventilation, chaining him to an iron bed, shackling him at his ankles and waist, and
forcing him to eat like a dog. 706 F.3d at 1061.
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later attacked him; "he received only a jumpsuit, tee-shiti, boxers and socks to wear in his cell on
cold winter nights"; and he was held in segregation for four months. Id at * 11-* 14. The
Barboza court concluded that Plaintiff had not met his burden of showing a protected liberty
interest because he failed to present evidence "establishing that, due to a 'novel situation' or
unusual personal characteristics, his placement in administrative segregation presented an
atypical and significant hardship compared to the level of hardship routinely faced by other
inmates in the same setting." Id at * 10.
Defendants also cite Kenner v. Vidaurri, 2010 WL 2947573, at *3 (D. Nev. June 10,
2010), adopted, 2010 WL 2947513 (D. Nev. July 22, 2010), ajf'd, 465 F. App'x 726 (9th Cir.
2012). In Kenner, the comi detem1ined that "neither the duration nor the degree of restraint
imposed on Plaintiff in administrative segregation is significant enough to weigh in favor of
finding a liberty interest" when the plaintiff alleged he was held in "solitaiy confinement" for 28
days without a prior hearing. The comi held that the imnate had not presented evidence that the
conditions he faced "were any different from those of other inmates in administrative
In light of the legal decisions addressing whether an inmate has shown an atypical and
significant hardship establishing a protected libe1iy interest, I conclude that Defendants are
entitled to qualified immunity. Although courts evaluating a qualified immunity defense "do not
require a case directly on point, ... existing precedent must have placed the statut01y or
constitutional question beyond debate." Ashcroft v. al-Kidd, 573 U.S. 731, 741 (2011 ). I have
not found any decisions holding that an inmate had a protected libeiiy interest based on
conditions of confinement similar in severity to those Plaintiff alleges here. Accepting Plaintiffs
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allegations as true, he was confined under the same conditions as other inmates in DSU. He does
not allege that he suffered from any personal characteristics that would have made conditions in
DSU particularly difficult for him. He was kept in DSU for six days, a relatively brief time. I
conclude that Defendants' alleged treatment of Plaintiff did not violate clearly established law.
Plaintiff argues that after Garges had been placed in DSU, there was no need for Plaintiff
to be held there. Plaintiff also submits an affidavit from Michael J. Evans, a fellow inmate, who
states that the prison has separated potentially hostile inmates through "in-cell status," confining
inmates to their cells except to shower. Am. Comp!., Ex. 2, at 1. Generally, however, prison
officials have complete discretion in housing assignments for inmates. See Olim v. Wakinekona,
461 U.S. 238, 245 (1983). I conclude that regardless of whether Defendants could have used a
different method to separate Plaintiff from Garges, Defendants are entitled to qualified immunity.
I conclude that allowing Plaintiff to amend his complaint again would be futile.
Dismissal therefore must be with prejudice.
For the reasons provided above, Plaintiffs Motion for Leave to Amend, ECF No. 22, is
GRANTED, and Defendants' Motion to Dismiss, ECF No. 15, is GRANTED. This action is
DISMISSED with prejudice.
Honorable Paul Papal<
United States Magistrate Judge
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