Jones v. Taylor et al
Filing
41
OPINION AND ORDER: The Court GRANTS Plaintiff's Motion (# 39 ) to Produce Extra Legal Documentation to Defendant's Summary Judgment Claim, GRANTS Defendants' Motion (# 30 ) for Summary Judgment, DISMISSES without prejudice Plaintiff's Eighth Amendment claim, and DISMISSES with prejudice the remainder of Plaintiff's claims. Signed on 9/18/2018 by Judge Anna J. Brown. **27 PAGE(S), PRINT ALL**(Christopher Jones, Prisoner ID: 15279830) (joha)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTOPHER J. JONES,
Plaintiff,
v.
JERI TAYLOR, et al.,
Defendants.
CHRISTOPHER
#15279830
Snake River
777 Stanton
Ontario, OR
J. JONES
Correctional Institution
Blvd
97914-8335
Plaintiff, Pro Se
ELLEN F. ROSENBLUM
Attorney General
SHANNON M. VINCENT
Senior Assistant Attorney General
1162 Court Street N.E.
Salem, OR 97301-4096
(503) 947-4700
Attorneys for Defendants
1 - OPINION AND ORDER
2:17-cv-01031-BR
OPINION AND ORDER
BROWN, Senior Judge.
This matter comes before the Court on Plaintiff's Motion
(#39) to Produce Extra Legal Documentation to Defendant's Summary
Judgment Claim and Defendants' Motion (#30)
for Summary Judgment.
The Court concludes the record is sufficiently developed such
that oral argument would not be helpful to the resolution of
these Motions.
For the reasons that follow, the Court GRANTS
Plaintiff's Motion and GRANTS Defendants' Motion.
BACKGROUND
The following facts are taken from Plaintiff's Complaint and
the parties' materials related to Defendants' Motion for Summary
Judgment and are viewed in the light most favorable to Plaintiff.
At all relevant times Plaintiff Christopher J. Jones was an
inmate at Snake River Correctional Institution (SRCI).
On February 7, 2017, Defendant Lieutenant (Lt.) Rodney Carey
submitted an Oregon Department of Corrections (ODOC) Request for
Administrative Housing in which he requested Plaintiff to be
placed in involuntary administrative segregation for 30 days
through March 9, 2017, pending investigation into allegations
that Plaintiff was sexually assaulting and sexually coercing a
vulnerable inmate.
Captain J. Walker approved the 30-day
placement.
After Lt. Carey completed his investigation, he filed a
2 - OPINION AND ORDER
Misconduct Report against Plaintiff on March 9, 2017.
Lt. Carey
reported:
On 03/09/2017 I was assigned as the Assignment
Lieutenant on second shift. At approximately
4:00pm I finished my investigation into Inmate
Jones, Christopher #15279830 sexually assaulting
another inmate on F4 Housing Unit.
Multiple CI
[Confidential Informant] reports as well as Oregon
State Police documentation support the above rule
violations.
CI's [sic] stated Inmate Jones was
engaged in forceful sexual situations with [Victim
Inmate] 1 between the dates of 8/25/2016 and
1/27/2017. One CI reported there were other
inmates that Inmate Jones had forced into sexual
situations other than [Victim Inmate]. My
investigation concluded that Inmate Jones used
extortion, intimidation and physical force to gain
canteen items and sex from [Victim Inmate].
These
situations took place in the unit shower, laundry
room as well as the bunk area.
Deel. of Jason Walker, Ex. 3 at 1.
with violating four ODOC Rules:
(2) Rule 2.15, Extortion I;
Lt. Carey charged Plaintiff
(1) Rule 2.20, Sexual Assault;
(3) Rule 2.10, Disrespect I; and
(4) Rule 2.05, Inmate Assault I.
An officer-in-charge reviewed
Lt. Carey's misconduct report and found "the rule violations
. are of such a serious nature that the good order and
security of the facility" required Plaintiff to remain in
segregation on the ground that "[e]xperience has shown that
inmates who engage in assaultive conduct are a present and
1
Although Plaintiff had actual notice of the identity of
the inmate he allegedly assaulted and the parties include the
victim's name in full in their papers, the Court redacts the
victim's name in this Opinion and Order to minimize further
intrusion on the victim's privacy.
3 - OPINION AND ORDER
continuing threat to themselves, other inmates and staff members.
Therefore becoming a threat to the safety and security of the
institution."
Walker Deel., Ex. 3 at 1.
On March 14, 2017, Defendant Hearings Officer Heather Nevil
held a disciplinary hearing relating to Plaintiff's alleged rule
violations.
At the hearing Plaintiff acknowledged he had
received copies of his Notice of Rights, Notice of Hearing, and
Rules of Prohibited Conduct and that he understood those
documents, his rights in the hearing, and the rule violations
against him.
Deel. of Heather Nevil, Ex. 4 at 1.
denied he violated ODOC rules.
Plaintiff
Officer Nevil read Lt. Carey's
Misconduct Report into the record and advised Plaintiff that she
had "the Confidential Informant Packet[, which included] all of
the verbatim statements that were provided in confidence to
Lt. Carey during his investigation."
Id. at 2.
Officer Nevil
further advised Plaintiff that due to "the consistency of the
information that's been provided in those confidential informants
[sic] statements [Lt. Carey]
. has deemed that these
informants are credible and that their verbatim statements as
well as their names should be withheld in order to protect the
safety and security of the facility."
Id.
Plaintiff asked
Officer Nevil to read the CI statements at the hearing.
Officer
Nevil declined and noted the salient information from the
statements was contained in the Misconduct Report that she had
4 - OPINION AND ORDER
read into the record, she deemed the statements to be credible,
and she had determined the verbatim statements and identities of
the Cis should not be revealed due to safety concerns.
Plaintiff
provided a statement in which he denied the rule violations.
Ultimately Officer Nevil dismissed the Rule 2.05 (Inmate
Assault I) violation, substituted a violation of Rule 2.16
(Extortion II) for Rule 2.15 (Extortion I), and found Plaintiff
guilty of violating Rule 2.20 (Sexual Assault) and Rule 2.10
(Disrespect I).
Officer Nevil recommended sanctions of 120 days
in disciplinary segregation with credit for the time Plaintiff
had already served in segregation, a 28-day loss of privileges,
and a $200 fine that was suspended "pending no [additional] major
rule violations." 2
Plaintiff sought administrative review of Officer Nevil's
decision with the Oregon Inspector General's Office pursuant to
ODOC rules.
On April 11, 2017, Assistant Inspector General Melissa
Nofziger advised Plaintiff that the Inspector General's Office
had reviewed Plaintiff's disciplinary hearing and
the review indicates there was substantial
compliance with the rule, the finding was based
upon a preponderance of the evidence and the
sanction imposed was in accordance with the
2
Plaintiff did not commit any further major rule violations
during the relevant period, and, therefore, he did not have to
pay the fine.
5 - OPINION AND ORDER
provisions set forth in the rule.
291-105-0085(3) (4).
Refer to OAR
Nevil Deel., Ex. 6 at 1.
On June 30, 2017, Plaintiff filed a prose Complaint in this
Court pursuant to 42 U.S.C. § 1983 against Lt. Carey, Officer
Nevil, and SRCI Superintendant Jeri Taylor alleging (1) Lt. Carey
violated Plaintiff's Fourteenth Amendment Right to procedural due
process when he kept Plaintiff in administrative segregation from
February 7, 2017, through March 9, 2017, and continued his
administrative segregation from March 9, 2017, through March 14,
2017;
(2) administrative segregation violated Plaintiff's Eighth
Amendment right to be free from cruel and unusual punishment
because the cells do not have access to direct sunlight and
Plaintiff was unable to purchase items from the canteen,
including unidentified "religious items," during that time;
(3) Officer Nevil violated Plaintiff's right to procedural due
process when she interrupted him during the hearing, refused to
read the CI statements into the record, and found Plaintiff
guilty of the rule violations without sufficient evidence; and
(4) Superintendent Taylor violated Plaintiff's right to due
process when she "approved the sanction rather than dismiss it."
Plaintiff seeks damages, injunctive relief, and declaratory
relief.
On October 25, 2017, Defendants filed an Answer and
Affirmative Defenses to Plaintiff's Complaint in which they
6 - OPINION AND ORDER
asserted affirmative defenses of qualified immunity, Plaintiff's
failure to state a claim, and Plaintiff's failure to exhaust his
administrative remedies.
On June 15, 2018, Defendants filed their Motion seeking
summary judgment as to all of Plaintiff's claims on the grounds
that
(1)
Plaintiff did not exhaust his administrative remedies as
to his Eighth Amendment claims before filing this action,
(2)
Defendants did not violate Plaintiff's right to due process,
and (3)
Defendants are entitled to qualified immunity.
On June 18, 2018, the Court issued a Summary Judgment Advice
Notice to Plaintiff advising him that if he did not submit
evidence in opposition to Defendants' Motion, summary judgment
would be entered against him if appropriate.
On August 9, 2018, Plaintiff filed a Motion to Produce Extra
Legal Documentation to Defendant's Summary Judgment Claim.
The Court took the parties' Motions under advisement on
August 13, 2018.
PLAINTIFF'S MOTION (#39) TO PRODUCE EXTRA LEGAL
DOCUMENTATION TO DEFENDANT'S SUMMARY JUDGMENT CLAIM
In his Motion Plaintiff seeks to include additional evidence
in his Declaration in opposition to Defendants' Motion for
Summary Judgment.
Plaintiff notes he was not able to include the
information before he filed his Motion because he did not receive
the information from the Oregon State Police until after the
7 - OPINION AND ORDER
deadline for his Response to Defendants' Motion had passed.
Defendants do not object to Plaintiff's Motion, and they address
the evidence Plaintiff submits in their Response to Plaintiff's
Motion.
Because Plaintiff was unable to produce the evidence at
issue before his Response deadline through no fault of his own
and in light of the fact that Defendants do not object, the Court
GRANTS Plaintiff's Motion and will consider the recent evidence
he offers in opposition to Defendants' Motion for Summary
Judgment along with the rest of the record in resolving
Defendants' Motion.
DEFENDANTS' MOTION (#30) FOR SUMMARY JUDGMENT
As noted, Defendants move for summary judgment as to all of
Plaintiff's claims on the grounds that (1)
Plaintiff did not
exhaust his Eighth Amendment claims before filing this action,
(2) Defendants did not violate Plaintiff's right to due process,
and (3) Defendants are entitled to qualified immunity.
I.
Standards.
Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
States,
Washington Mut.
636 F.3d 1207, 1216 (9 th Cir. 2011).
Civ. P. 56(a).
Ins. v. United
See also Fed. R.
The moving party must show the absence of a
8 - OPINION AND ORDER
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9 th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
"This burden is not a light one
Id.
The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387
In
(9 th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9 th Cir. 2002) (quoting Anderson v. Liberty Lobby,
Inc.,
477 U.S. 242, 248
(1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc.,
606 F.3d 584, 587
(9 th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F.3d 948, 957
Easter v. Am. W. Fin.,
(9 th Cir. 2004) (citation omitted).
A "mere
disagreement or bald assertion" that a genuine dispute as to a
material fact exists "will not preclude the grant of summary
judgment."
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2
(citing Harper v. Wallingford,
9 - OPINION AND ORDER
(E.D. Cal., Jan. 20, 2011)
877 F.2d 728, 731 (9 th Cir.
1989)).
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9 th Cir. 2009) (citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
Prod., Inc.,
454 F.3d975,
987
Miller v. Glenn Miller
(9 th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
II.
Id.
Failure to Exhaust Administrative Remedies.
Defendants assert Plaintiff did not exhaust his
administrative remedies as to his claim that administrative
segregation violated his Eighth Amendment right to be free from
cruel and unusual punishment.
A.
Prison Litigation Reform Act (PLRA) Exhaustion
Requirement.
As noted, Plaintiff brings this action pursuant to 42
U.S.C. § 1983, which provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State .
. subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to
the party injured in an action at law.
Section 1983 creates a private right of action against persons
who, acting under color of state law, violate federal
10 - OPINION AND ORDER
constitutional or statutory rights.
Devereaux v. Abbey, 263 F.3d
10 7 0 , 10 7 4 ( 9 th Cir . 2001 ) .
The PLRA provides "[n]o action shall be brought with
respect to prison conditions under Section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted."
The PLRA "mandates that an inmate exhaust
remedies
42 U.S.C. § 1997e(a).
. administrative
. before bringing suit to challenge prison
conditions."
Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016)
(quotation omitted).
See also Booth v. Churner, 532 U.S. 731,
121 S . Ct . 1819, 18 2 5 ( 2001 ) ( same ) .
The 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).
The Supreme Court has made clear that courts "may not excuse a
failure to exhaust, even to take [special] circumstances into
account."
Ross, 136 S. Ct. at 1856.
Moreover, prisoners are
obligated to navigate the prison's administrative-review process
"regardless of the fit between a prisoner's prayer for relief and
the administrative remedies possible."
739-41.
Booth, 532 U.S. at
Accordingly, the Ninth Circuit has held "plaintiffs must
pursue a remedy through a prison grievance process as long as
11 - OPINION AND ORDER
some action can be ordered in response to the complaint."
v. Valoff,
original).
422 F.3d 926, 934
Brown
(9 th Cir. 2005) (emphasis in
Even if the relief the prisoner receives is nothing
more than "corrective action taken in response to an inmate's
grievance [that]
. improve[s] prison administration and
satisf[ies] the inmate," it is sufficient relief for an inmate to
continue with the administrative process.
Id. at 936 (quoting
Porter, 534 U.S. at 525).
An inmate's failure to exhaust administrative remedies
under 42 U.S.C. § 1997e(e) is an affirmative defense.
F.3d at 1245.
Wyatt,
280
"[D]efendants have the burden of raising and
proving the absence of exhaustion."
Id. at 1120.
Relevant evidence in so demonstrating would
include .
. regulations, and other official
directives that explain the scope of the
administrative review process; documentary or
testimonial evidence from prison officials who
administer the review process; and information
provided to the prisoner concerning the operation
of the grievance procedure in this case.
Brown, 422 F.3d at 937.
As noted, if the court concludes an
inmate has failed to exhaust administrative remedies, the proper
remedy is dismissal without prejudice.
Wyatt,
315 F.3d at
1119-20.
B.
ODOC Grievance Procedure.
Pursuant to the administrative rules of ODOC that
govern inmate grievances, inmates at ODOC facilities are required
12 - OPINION AND ORDER
to communicate with "line staff" verbally or in writing to
resolve a dispute before filing a grievance.
If communication
with line staff does not resolve an inmate's issue, the inmate
may then file a grievance form within 30 days of the incident or
conflict.
Inmates must attach copies of their previous
communications with line staff to their grievance forms to
demonstrate that they attempted to resolve the conflict
informally before filing their grievance.
If an inmate is not
satisfied with the response to his or her grievance, the inmate
may file an appeal to the functional unit manager by completing a
grievance appeal form and filing it with the grievance
coordinator within 14 days from the time the response was sent to
the inmate.
The grievance coordinator then assigns the grievance
a number and records it in the grievance log.
An inmate may appeal the functional unit manager's
decision by submitting to the assistant director an appeal form,
the original grievance, attachments, and staff responses.
The
grievance coordinator then date-stamps and logs the appeal.
The
decision of the assistant director is final and is not subject to
further review.
ODOC informs inmates of the grievance procedure at
their mandatory Admission and Orientation class held when inmates
first arrive at a facility.
In addition, information about the
procedure is contained in the inmate handbook.
13 - OPINION AND ORDER
Inmates may
obtain grievance forms and instructions from any housing-unit
officer.
C.
Plaintiff failed to exhaust the administrative remedies
for his Eighth Amendment claims.
As noted, Plaintiff alleges in his Complaint that
administrative segregation violated his Eighth Amendment right to
be free from cruel and unusual punishment because the cells do
not have access to direct sunlight, Plaintiff was unable to
purchase items from the canteen, and Plaintiff was unable to have
and/or to purchase unidentified "religious items."
Plaintiff
states in his Declaration that "towards the end of March 2017
I had sent a kite to the property officer asking for some of my
religious items out of my property," but his request was denied.
Deel. of Christopher J. Jones at~ 29-30.
Plaintiff states in
his Brief in Opposition to Defendants' Motion that "[b]etween
February 7 th ,
2017, and May 17, 2017, I kept asking D.S.U. staff
about being able to get my religious items out of my property,"
but his requests were denied.
Notably, however, Plaintiff does
not allege he filed a grievance or otherwise pursued the
administrative process.
Although the record reflects Plaintiff submitted four
property-related grievances during his time in administrative
segregation, the record also shows that in each of the grievances
Plaintiff only requested the return of various address and
telephone books seized from Plaintiff's cell.
14 - OPINION AND ORDER
Deel. of Nina
Sobotta, Exs. 4-7.
The record does not contain any grievances by
Plaintiff related to access to direct sunlight, the purchase of
items from the canteen, or the purchase or possession of
religious items.
Accordingly, on this record, the Court concludes there
are not any disputed issues of material fact and that Defendants
are entitled to summary judgment as to Plaintiff's Eighth
Amendment claim for failure to exhaust administrative remedies.
The Court, therefore, grants Defendants' Motion as to that claim
and dismisses it without prejudice.
III. Plaintiff's Due-Process Claims.
As noted, Plaintiff alleges (1) Defendants violated his
Fourteenth Amendment Right to procedural due process when they
kept him in administrative segregation from February 7, 2017,
through March 9, 2017, and continued his administrative
segregation from March 9, 2017, through March 14, 2017;
(2) Officer Nevil violated Plaintiff's right to procedural due
process when she interrupted him during the hearing, refused to
read the CI statements into the record, and found Plaintiff
guilty of rule violations without sufficient evidence; and
(3) Superintendent Taylor violated Plaintiff's right to due
process when she "approved the sanction rather than dismiss it."
A.
Due Process.
The Supreme Court has made clear that the Due Process
15 - OPINION AND ORDER
Clause of the United States Constitution "encompasses
guarantee of fair procedure."
125 (1990).
Zinermon v. Burch, 494 U.S. 113,
Accordingly, an inmate may bring an action for a
violation of procedural due process.
claims,
. a
"In procedural due process
[however,] the deprivation by state action of a
constitutionally protected interest in life, liberty, or property
is not in itself unconstitutional; what is unconstitutional is
the deprivation of such an interest without due process of law."
Id.
( quotation omitted) ( emphasis in original) .
Thus,
[t]he constitutional violation actionable under
§ 1983 is not complete when the deprivation
occurs; it is not complete unless and until the
State fails to provide due process.
Therefore, to
determine whether a constitutional violation has
occurred, it is necessary to ask what process the
State provided, and whether it was constitutionally adequate.
This inquiry would examine
the procedural safeguards built into the statutory
or administrative procedure of effecting the
deprivation.
Id.
at 126.
B.
Plaintiff's Assignment to Administrative Segregation
from February 7, 2017, through March 9, 2017.
Plaintiff alleges his assignment to administrative
segregation from February 7 through March 9, 2017, violated
procedural due process because it exceeded 30 days and he did not
have a hearing during that period.
Oregon Administrative Rule 291-046-0014 provides:
inmate may be
"An
. involuntarily assigned to administrative
housing for a period not to exceed 30 days without a hearing."
16 - OPINION AND ORDER
The Court, however, takes judicial notice of the fact that the
period from February 7, 2017, through March 9, 2017, is exactly
30 days.
Thus, Plaintiff's assignment to administrative
segregation for the 30-day period from February 7, 2017, through
March 9, 2017, did not trigger the right to a hearing and was in
accordance with ODOC regulations.
Accordingly, Plaintiff's due-
process claim as to his assignment to administrative segregation
for that period fails as a matter of law.
C.
Plaintiff's Assignment to Administrative Segregation
from March 9, 2017, through March 14, 2017.
Plaintiff also alleges his continued assignment to
administrative segregation after the expiration of 30 days
(on
March 9, 2017) through the date of his hearing on March 14, 2017,
violated his procedural due-process rights.
Defendants assert
Plaintiff was held in administrative segregation from March 9
through March 14, 2017, pursuant to Oregon Administrative Rule
291-105-0021, which provides in relevant part:
(3) Temporary Placement in Disciplinary
Segregation Status: An inmate charged with
committing a rule violation may be placed in
temporary disciplinary segregation status pending
resolution of the charge. This action will be
taken when the functional unit manager or the
officer in-charge determines that the alleged rule
violation charged is of such seriousness that the
good order and security of the facility requires
immediate removal of the inmate from the general
population, or it is determined the inmate is a
threat to the community or is likely to escape or
abscond.
17 - OPINION AND ORDER
(a) If temporary disciplinary segregation
status is ordered, the officer in charge must
complete the portion of the Department of
Corrections misconduct report specifying the
reason(s) why immediate temporary
disciplinary segregation of the inmate was
deemed necessary.
(b) A completed copy of the Department of
Corrections misconduct report will be
forwarded to the functional unit manager or
designee who will review the inmate's
prehearing detention status within 72 hours
of the inmate's placement in temporary
disciplinary segregation status.
If
approved, the functional unit manager or
designee will initial the report.
The record reflects on March 9, 2017, Lt. Carey
completed an ODOC misconduct report and specified the reasons why
Plaintiff's continued temporary disciplinary segregation was
necessary.
Specifically, Lt. Carey noted he had reviewed
"[m]ultiple CI reports" in which Cis "stated Inmate Jones was
engaged in forceful sexual situations with [Victim Inmate]
One CI reported there were other inmates that Inmate
Jones had forced into sexual situations other than [Victim
Inmate]."
Walker Deel., Ex. 3 at 1.
Lt. Carey stated his
"investigation concluded that Inmate Jones used extortion,
intimidation and physical force to gain canteen items and sex
from [Victim Inmate]."
Id.
An officer-in-charge reviewed
Lt. Carey's misconduct report and found "the rule violations
. are of such a serious nature that the good order and
security of the facility" required Plaintiff to remain in
18 - OPINION AND ORDER
segregation on the ground that "[e]xperience has shown that
inmates who engage in assaultive conduct are a present and
continuing threat to themselves, other inmates and staff members.
Therefore becoming a threat to the safety and security of the
institution."
Walker Deel., Ex. 3 at 1.
The Court concludes Defendants have established they
followed the pertinent administrative rules when they continued
Plaintiff's placement in administrative segregation and that
Plaintiff has not established the rule violations alleged against
him in the misconduct report were not sufficiently serious
to permit Defendants to place Plaintiff in administrative
segregation from March 9, 2017, through the date of his hearing
on March 14, 2017.
The Court, therefore, concludes Plaintiff's
due-process claim as to his assignment to administrative
segregation for that period fails as a matter of law.
D.
Officer Nevil.
As noted, Plaintiff asserts Officer Nevil violated
Plaintiff's right to due process when she interrupted him during
the hearing, refused to read the CI statements into the record,
did not provide Plaintiff with an independent investigation, and
found Plaintiff guilty of rule violations without sufficient
evidence.
1.
Procedural Due Process.
As noted, Plaintiff's assertions regarding Officer
19 - OPINION AND ORDER
Nevil's conduct relate to Plaintiff's procedural due-process
rights.
In Wolff v. McDonnell the Supreme Court set out
the basic procedural due-process guarantees in the context of
prison disciplinary hearings.
418 U.S. 539, 563-72 (1974).
In
Walker v. Sumner the Ninth Circuit summarized the Wolff
requirements as follows:
Wolff established five procedural requirements.
First, "written notice of the charges must be
given to the disciplinary-action defendant in
order to inform him of the charges and to enable
him to marshal the facts and prepare a defense."
Wolff, 418 U.S. at 564.
Second, "at least a brief
period of time after the notice, no less than 24
hours, should be allowed to the inmate to prepare
for the appearance before the Adjustment
Committee." Id.
Third, "there must be a 'written
statement by the factfinders as to the evidence
relied on and reasons' for the disciplinary
action." Id. (quoting Morrissey v. Brewer, 408
U.S. 471, 489 (1972)).
Fourth, "the inmate facing
disciplinary proceedings should be allowed to call
witnesses and present documentary evidence in his
defense when permitting him to do so will not be
unduly hazardous to institutional safety or
correctional goals." Id., 418 U.S. at 566.
Fifth, "[w]here an illiterate inmate is involved
. or where the complexity of the issue makes
it unlikely that the inmate will be able to
collect and present the evidence necessary for an
adequate comprehension of the case, he should be
free to seek the aid of a fellow inmate, or
. to have adequate substitute aid . . . from
the staff or from a[n]
. inmate designated by
the staff." Id. at 570.
The Court specifically
held that the Due Process Clause does not require
that prisons allow inmates to cross-examine their
accusers, id. at 567-68, nor does it give rise to
a right to counsel in the proceedings, id. at
569-70.
20 - OPINION AND ORDER
14 F.3d 1415, 1420 (9 th Cir. 1994), overruled on other grounds by
Sandin v. Conner, 515 U.S. 472, 482
(1995).
The Court has reviewed the transcript of the
disciplinary hearing and concludes it reflects Officer Nevil
provided Plaintiff with an adequate opportunity to defend himself
from the allegations and to present evidence in his defense even
though Officer Nevil occasionally interrupted Plaintiff.
On this
record, therefore, the Court concludes Plaintiff has not
established the alleged interruptions by Officer Nevil violated
Plaintiff's right to due process.
The Court notes Officer Nevil declined to read the
CI statements into the record due to concerns about the safety of
the informants.
The Supreme Court and Ninth Circuit have made
clear that "[d]ue process does not require . . . an informant's
identity be revealed to an inmate."
Zimmerlee v. Keeney,
F . 2 d 18 3 , 18 6 ( 9 th Cir . 19 8 7 ) ( citing Wo 1 ff,
831
4 18 U . S . at 5 6 8 - 6 9 ) .
In any event, Officer Nevil gave Plaintiff a synopsis of the
statements that the Court concludes was sufficient for Plaintiff
to respond to the CI's allegations.
On this record the Court
concludes Officer Nevil did not violate procedural due process
when she declined to read the CI's verbatim statements into the
record.
Finally, the Court emphasizes pursuant to Wolff,
procedural due process does not require an inmate to be provided
21 - OPINION AND ORDER
with an independent investigation.
See Picket v. Williams, No.
09-cv-689-TC, 2011 WL 4913573, at *4
(D. Or. Aug. 23, 2011)
("[t]he minimum procedural due process protections required at
prison disciplinary hearing[s] set forth in Wolff do not include
the right to an investigation.").
See also Henderson v.
Schoville, No. CV 00- 12616-MMM (JEM), 2010 WL 342596, at *8
(C.D. Cal. Jan. 28, 2010)
(Wolff "does not require prison
officials to conduct an investigation in a certain manner or
pursuant to the request of an inmate."
Citing Arguijo v. Dennis,
No. 07-CV-1908-BR, 2009 WL 393957, at *3 (D. Or. Feb. 2, 2009) );
Anthony v. County of Multnomah, No. CV 04-229-MO, 2006 WL 278193,
at *3 (D. Or. Feb. 3, 2006) (an inmate is not entitled to
investigation by a third party or to an investigation conducted
in a particular manner under Wolff); Whitford v. Boglino, 63 F.3d
527, 532
(7 th
Cir. 1995) (inmates do not have any "federal due
process right to a prehearing investigation"); Brown v. Frey, 889
F.2d 159, 170-71 (8 th Cir. 1989) (there is not a "clear
constitutional right to an 'adequate investigation"' in the
context of prison disciplinary proceedings).
In any event,
Plaintiff did not request an independent investigation.
On this
record, therefore, the Court concludes Officer Nevil did not
violate Plaintiff's procedural due-process rights when she did
not provide Plaintiff with an independent investigation.
22 - OPINION AND ORDER
2.
Substantive Due Process.
Plaintiff's allegation that Officer Nevil found
Plaintiff guilty of rule violations without sufficient evidence
implicates Plaintiff's right to substantive due process.
In the context of prison disciplinary hearings,
substantive due process requires only that there is "some
evidence" to support a disciplinary decision.
Mass. Corr. Inst., Walpole v. Hill,
See also Bruce v. Ylst,
Superintendent,
472 U.S. 445, 454
(1985).
351 F.3d 1283, 1287 (9 th Cir. 2003).
"Under Hill, we do not examine the entire record, independently
assess witness credibility, or reweigh the evidence; rather,
'the
relevant question is whether there is any evidence in the record
that could support the conclusion.'"
(quoting Hill,
472 U.S. at 455-56).
Bruce, 351 F.3d at 1287
"The fundamental fairness
guaranteed by the Due Process Clause does not require courts to
set aside decisions of prison administrators that have some basis
in fact."
Wolff,
472 U.S. at 456.
Here Officer Nevil concluded Plaintiff violated
Rules 2.16 (Extortion II), 2.20 (Sexual Assault), and 2.10
(Disrespect I).
Officer Nevil based her decision on Lt. Carey's
investigation and Misconduct Report as well as the CI statements.
The Ninth Circuit held in Zimmerlee:
[A] prison disciplinary committee's determination
derived from a statement of an unidentified inmate
informant satisfies due process when (1) the
23 - OPINION AND ORDER
record contains some factual information from
which the committee can reasonably conclude that
the information was reliable, and (2) the record
contains a prison official's affirmative statement
that safety considerations prevent the disclosure
of the informant's name.
Review of both the
reliability determination and the safety
determination should be deferential.
Reliability may be established by:
( 1) the oath
of the investigating officer appearing before
the committee as to the truth of his report
that contains confidential information,
(2) corroborating testimony, (3) a statement on
the record by the chairman of the committee that
he had firsthand knowledge of sources of
information and considered them reliable based on
the informant's past record, or (4) an in camera
review of the documentation from which credibility
was assessed.
831 F.2d at 186-87 (citation omitted).
Marshall,
See also Brown v.
538 F. App'x 825, 826 (9 th Cir. 2013) (same).
Defendants submitted the CI statements on which
Officer Nevil relied for this Court's in camera review.
The
Court finds a reasonable hearings officer could conclude these
statements were credible based on their general factual
consistency with each other as to the events at issue,
Plaintiff's other behavior, and the Cl's proximity to and
familiarity with Plaintiff and the victim inmate.
Accordingly,
on this record the Court concludes Officer Nevil did not violate
Plaintiff's right to substantive due process because she based
her decision on sufficient evidence in the record to support her
determination.
24 - OPINION AND ORDER
In summary, the Court grants Defendants' Motion for Summary
Judgment as to Plaintiff's claims for violation of procedural and
substantive due process and dismisses those claims with
prejudice.
IV.
Defendant Jeri Taylor.
Finally, Plaintiff alleges then-Superintendent Jeri Taylor
violated Plaintiff's right to due process when she "approved the
sanction [entered by Officer Nevil] rather than dismiss it."
Compl. at 5.
To establish a claim under§ 1983 against an individual
defendant, a plaintiff must plead facts sufficient to show
personal participation in the alleged constitutional deprivation
by each defendant.
See Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) ("Because vicarious liability is inapplicable to .
§ 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual acts,
has violated the Constitution.").
See also Zellmer v.
Constantine, 520 F. App'x 564, 565 (9 th Cir. 2013) ("The district
court properly dismissed defendant Constantine because Zellmer
failed to show that Constantine had any personal involvement in
the alleged violations."); Arizmendi v. City of San Jose,
No. 5:08-CV-05163 EJD, 2012 WL 5471152, at *4
(N.D. Cal. Nov. 9,
2012) ("A plaintiff must establish "integral participation" of the
individual officer in the alleged constitutional violation.
25 - OPINION AND ORDER
Summary Judgment, therefore, is proper when there is no question
of fact or dispute that specific individual defendants did not
participate personally in an allegedly unconstitutional search."
(citations omitted)).
Oregon Administrative Rule 291-105-0085(1) provides:
Any order for rule violations on Level I or Level
II of the major violation grid or, which
recommends an extension of the inmate's parole
release date or retraction of earned time,
statutory good time or extra good time credits; or
which recommends a deviation from the segregation
sanction listed on the grid is subject to review
by the Inspector General.
Plaintiff sought and received review of Officer Nevil's decision
by the Oregon Inspector General.
As noted, Assistant Inspector
General Nofziger advised Plaintiff that the Inspector General's
Office concluded "the review indicates there was substantial
compliance with the rule, the finding was based upon a
preponderance of the evidence and the sanction imposed was in
accordance with the provisions set forth in the rule."
Deel., Ex. 6 at 1.
Nevil
Defendant Taylor, however, was not involved
in any part of the administrative appeal process pursuant to Rule
291-105-0085(1).
Accordingly, the Court grants Defendants' Motion for Summary
Judgment as to Plaintiff's claim against Defendant Taylor and
dismisses that claim with prejudice.
26 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court GRANTS Plaintiff's Motion (#39)
to Produce Extra Legal Documentation to Defendant's Summary
Judgment Claim, GRANTS Defendants' Motion (#30)
for Summary
Judgment, DISMISSES without prejudice Plaintiff's Eighth
Amendment claim, and DISMISSES with prejudice the remainder of
Plaintiff's claims.
IT IS SO ORDERED.
DATED this 18 th day of September, 2018.
ANNA J. BROWN
United States Senior District Judge
27 - OPINION AND ORDER
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