Hardy v. Davis et al
Filing
43
OPINION & ORDER: Defendants' Motion 20 is GRANTED. See 18-page opinion & order attached. Signed on 9/27/2012 by Judge Marco A. Hernandez. Copy mailed to plaintiff Anthony Donte Hardy. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ANTHONY DONTE HARDY,
Plaintiff,
No. 03:11-cv-00518-HZ
OPINION & ORDER
v.
J. DAVIS, et al.,
Defendants.
Anthony Donte Hardy
12391336
Oregon State Penitentiary
2605 State Street
Salem, OR 97310-0505
Pro Se
John R. Kroger
Jacqueline Kamins
Andrew D. Hallman
OREGON DEPARTMENT OF JUSTICE
1 - OPINION & ORDER
CCR Section
1162 Court Street, NE
Salem, OR 97301
Attorneys for Defendants
HERNANDEZ, District Judge:
This action arises out of a physical altercation between Anthony Donte Hardy
(“Plaintiff”), a prisoner at the Oregon State Correctional Institution (“OSCI”), and Jared
Davis (“Davis”), a correctional officer at OSCI, on July 23, 2010. Based on the July 23,
2010, altercation with Plaintiff, Davis issued a misconduct report the same day, July 23,
2010, stating that Plaintiff violated three Rules of Inmate Prohibited Conduct (“RIPC”),
namely RIPC 2.01 (Staff Assault), 2.10 (Disrespect I), and 4.40 (Unauthorized Area I).
Davis Decl., ¶ 9; Id., Attach. 2, p. 1. On July 29, 2010, a disciplinary hearing regarding
Davis’s July 23, 2010, misconduct report was held before Hearing Officer Phil
Montgomery (“Montgomery”). Montgomery Decl., ¶ 6. Montgomery found that
Plaintiff had violated RIPC 2.01, 2.10, and 4.40. Id.
Plaintiff filed this action on April 25, 2011, pursuant to 42 U.S.C. § 1983 (“§
1983) against Davis, Montgomery, and other employees of the Oregon Department of
Corrections (“ODOC”): Closson, Hernandez, Sergeant Aly (“Aly”), Hannon, and Mark
Nooth (collectively, “Defendants”).1 Plaintiff alleges Defendants violated his Eighth
Amendment rights when they used excessive force to subdue him and violated his
Fourteenth Amendment rights when they denied him the opportunity to present witness
and photographs taken of him after the July 23, 2010, altercation at his July 29, 2010,
disciplinary hearing. Plaintiff seeks $20,000 from each of the Defendants, an order
1
The materials in the record do not disclose the full names of all of the Defendants.
2 - OPINION & ORDER
reinstating his good-time credits which were revoked pursuant to the July 29, 2010,
disciplinary hearing, and a “keep away” order against Davis. Compl., p. 5.
Now before me is Defendants’ Motion for Summary Judgment (“Motion”) (doc.
#20) against all of Plaintiff’s claims. For the following reasons, Defendants’ Motion is
GRANTED.
BACKGROUND
Plaintiff’s first claim for relief alleges violations of his Eighth Amendment right
to be free from cruel and unusual punishment. It alleges the following:
On July 23, 2010, Plaintiff was involved in a verbal altercation with Davis. Id., p.
3. During the altercation, Davis ordered Plaintiff to “stand in the hall” so that Davis
could call a response team to take Plaintiff to the Disciplinary Segregation Unit (“DSU”).
Id. While passing Davis to “stand in the hall”, Plaintiff told Davis, “Fuck you and the
hole.” Id. Davis “completely lost it” and pushed Plaintiff up against the wall and
punched him in the face, threw him to the ground, and continued to punch Plaintiff. Id.,
pp. 3-4. Correctional officer Closson and Aly then jumped on top of Plaintiff and
handcuffed him. Davis, however, continued to punch Plaintiff “in the face and head”
while he was handcuffed.2 Id., p. 3. Correctional officers Closson and Hernandez then
took Plaintiff to the DSU. Id., p. 4.
2
The record shows that after the July 23, 2011, altercation with Davis, Plaintiff had
“abrasions on his left elbow, the back of his left shoulder, his right shoulder, left cheek,
left temple, right cheek, and the fifth digit on his right hand”. See Rucker Decl., ¶ 7;
Hicks Decl., Attach. 9, p. 3. The record also shows there was “a scratch beneath
[Plaintiff’s] right temple area and on [sic] a small cut on his lower lip.” See Hicks Decl.,
Attach. 9, p. 3.
3 - OPINION & ORDER
Plaintiff’s second claim for relief alleges violations of his due process and equal
protection rights under the Fourteenth Amendment. Compl., p. 4. It alleges the
following:
On July 24, 2010, prior to his disciplinary hearing, Plaintiff submitted a request
that there be an investigation of the July 23, 2010, altercation, that Plaintiff be allowed to
have witnesses at the July 29, 2010, hearing, and that the photographs taken of Plaintiff
after the July 23, 2010, altercation be made available at the July 29, 2010, hearing.
On July 29, 2010, a disciplinary hearing was held before Hearing Officer Phil
Montgomery (“Montgomery”), who stated that Plaintiff’s “request’s [sic] . . . would not
change or mitigate the violation and that [Plaintiff] did not have the right to defend
[him]self if assaulted by staff.” Id.
STANDARD
Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c). The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party need only demonstrate that there is an absence of evidence to support
the non-moving party’s case. Id. at 325.
Once the moving party has met its burden, the burden shifts to the non-moving
party to “set out ‘specific facts showing a genuine issue for trial.’“ Id. at 324 (quotation
omitted). To carry this burden, the non-moving party must “do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
4 - OPINION & ORDER
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a
scintilla of evidence . . . will be insufficient; there must be evidence on which the jury
could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
In deciding a summary judgment motion, the court must view the evidence in the
light most favorable to the non-moving party and draw all justifiable inferences in its
favor. Id. at 255. “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . .
ruling on a motion for summary judgment .” Id. However, conclusory, speculative
testimony in affidavits and moving papers is insufficient to raise genuine issues of fact
and defeat summary judgment. See Thornhill Publ’n Co., Inc. v. GTE Corp., 594 F.2d
730, 738 (9th Cir. 1979).
DISCUSSION
I. Failure to Exhaust Administrative Remedies
Defendants contend Plaintiff’s claims should be dismissed because he did not
seek review of Davis’s misconduct report as required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a). Plaintiff responds that he exhausted his
administrative remedies when his “grievance” was denied by Grievance Coordinator
Teresa Hicks (“Hicks”) and when he “filed for review of his disciplinary sanction and it
went unanswered”. Opp’n, pp. 2-3. Plaintiff also asserts that a review of Davis’s
misconduct report was not “sufficiently identified” and that Defendants “have not alleged
that [P]laintiff failed to exhaust his excessive force claim and, therefore, this claim is not
subject to summary judgment for failure to exhaust.” Id. Finally, Plaintiff contends that
5 - OPINION & ORDER
a review by the Inspector General would have been “futile” because Defendants already
“assume[d] that [P]laintiff assaulted . . . Davis”. Id.
Plaintiff’s arguments are unavailing. The PLRA requires a prisoner to exhaust his
administrative remedies before filing a lawsuit concerning prison conditions. See 42
U.S.C. § 1997e(a). The PLRA provides:
No 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 .
. . correctional facility until such administrative remedies as are available
are exhausted.
Id.
The Supreme Court has held that “proper exhaustion of administrative remedies is
necessary.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). Proper exhaustion requires that a
prisoner comply “with an agency’s deadlines and other critical procedural rules because
no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90-91. There is, however, an “exception to the
PLRA’s exhaustion requirement”. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010).
The exception applies “where a prison official renders administrative remedies
effectively unavailable by improperly screening a prisoner’s grievances.” Id. To show a
prison official rendered administrative remedies “effectively unavailable”, the “prisoner
must show that he attempted to exhaust his administrative remedies but was thwarted by
improper screening.” Id.
In particular, the inmate must establish (1) that he actually filed a
grievance or grievances that, if pursued through all levels of
administrative appeals, would have sufficed to exhaust the claim that he
seeks to pursue in federal court, and (2) that prison officials screened his
grievance or grievances for reasons inconsistent with or unsupported by
applicable regulations.
6 - OPINION & ORDER
Id. at 823-24.
Relevant evidence demonstrating that relief remained available “include[s]
statutes, regulations, and other official directives that explain the scope of the
administrative review process . . . .” Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005).
Relevant evidence also includes “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 . . . .” Id. “[T]he court may look
beyond the pleadings and decide disputed issues of fact” and may determine whether “the
prisoner has [or has] not exhausted nonjudicial remedies”. See Wyatt v. Terhune, 315
F.3d 1108, 1119 (9th Cir. 2003) (citation omitted).
Noted above, Davis issued his misconduct report on July 23, 2010. The following
day, July 24, 2010, Plaintiff filed a Grievance Form grieving that Davis, Aly, and
Closson had assaulted him and used excessive force. Hicks Decl., ¶ 30; Id., Attach. 9,
pp. 2-3. Plaintiff’s July 24, 2010, Grievance Form requested that Hicks view the
photographs of his “bruised and bloody face and head” taken after his July 23, 2010,
altercation with Davis. Id., Attach. 9, p. 3. Plaintiff’s July 24, 2010, Grievance Form
also stated his intention to call witnesses and present photographs of his “bruised and
bloody face and head” at the July 29, 2010, disciplinary hearing. Id. In response to
Plaintiff’s July 24, 2010, Grievance Form, Hicks sent Plaintiff an Inmate Complaint
Receipt Memo (“Memo”) dated July 27, 2010. The Memo informed Plaintiff that his
“[i]ssue was not grievable” because it involved a misconduct report and complained
about “use of force” and therefore, “ha[d] a separate appeal/review process”. Id., p. 1.
7 - OPINION & ORDER
On July 29, 2010, Plaintiff’s disciplinary hearing was held and Montgomery
found that Plaintiff was in violation of RIPC 2.01, 2.10, and 4.40 as alleged in Davis’s
July 23, 2010, misconduct report. Montgomery Decl., ¶¶ 4-5, 6; Id., Attach. 2, p. 10.
The same day, July 29, 2010, Plaintiff sent an Inmate Communication Form to Nooth, the
Superintendent at OSCI, requesting that his case be “reopen[ed] and investigated on the
grounds that [he] . . . were [sic] denied to call upon witnesses . . . and photo’s [sic] of
[his] brused [sic] and bloody face and head . . . were not present at [his] hearing as . . .
requested.” Opp’n, Ex. 5, p. 2. Nooth responded to Plaintiff in a letter dated August 2,
2010, informing Plaintiff that he was required to “appeal through the Inspector General”,
explicitly citing and quoting Rule 291-105-0085 of the Oregon Administrative Rules
(“OAR”). Opp’n, Ex. 5, p. 1.
On August 2, 2010, Montgomery issued a Findings of Fact, Conclusions, and
Order (“Order”) finding Plaintiff had “caused physical injury to an employee” in
violation of RIPC 2.01, had “directed hostile . . ., abusive or threatening language or
gestures . . . involv[ing] a physical threat” in violation of RIPC 2.10, and “was present or
failed to be present, in [a] location not designated by assignment, programmed activity,
call out or staff directive, which create[d] a threat to the safety, security or orderly
operation of the facility” in violation of RIPC 4.40. Montgomery Decl., ¶¶ 6-7; Id.,
Attach. 2, p. 1. Based on his findings, Montgomery recommended that Plaintiff be
sanctioned “120 days disciplinary segregation with a 50% upward deviation for a total of
180 days in disciplinary segregation . . . due to the existence of the aggravating factor that
the timing and location of the misconduct directly threatened the safety, security, or
orderly operation of the facility significantly more than typical for such misconduct.” Id.,
8 - OPINION & ORDER
¶ 7; Id., Attach. 2, p. 2. Montgomery “also recommended a $100.00 disciplinary fine and
retraction of 40.77 days earned time credit”.3 Id. On August 3, 2010, the Functional Unit
Manager affirmed Montgomery’s recommendations. Id., ¶ 7; Id., Attach. 2, p. 3.
It was not until November 17, 2010, that Plaintiff filed an Inmate Communication
Form with the Inspector General, which inquired “about [his] appeal” of his sanctions
relating to his July 23, 2010, altercation with Davis. Opp’n, Ex. 2, p. 1. Although
Plaintiff’s November 17, 2010, Inmate Communication Form states that he sent a “kite
on 8/8/10” requesting an appeal of his sanctions, Plaintiff presents no evidence of the
August 8, 2010, kite he allegedly sent to the Inspector General.4 Id.; Id., Ex. 3, p. 1. To
the contrary, the evidence on which Plaintiff relies shows that Plaintiff did not send any
kite to the Inspector General on August 8, 2010, where the Inspector General responded
to Plaintiff’s November 17, 2010, inmate communication on December 3, 2010, stating
that he had “never received any paperwork” from Plaintiff and explicitly instructed
Plaintiff “to complete a . . . Petition for Administrative Review (form CD 1442) within 60
days of the final order on [Montgomery’s] finding of fact.” Opp’n, Ex. 2, p. 1.
Based on the record before me, I conclude that the screening of Plaintiff’s July 24,
2010, grievance was not inconsistent with or unsupported by the applicable regulations.
See Sapp, 623 F.3d at 823-24. OAR 291-109-0140 states that “[a]n inmate cannot grieve
the following: . . . [m]isconduct reports, investigations leading to or arising from
misconduct reports, or disciplinary hearings, findings and sanctions . . . .” OAR 291-1090140(3)(e). Because Plaintiff was grieving the July 23, 2010, misconduct report, the
3
Montgomery also recommended “28 days loss of privileges upon release from
disciplinary segregation[, but] . . . suspended this sanction pending no major rule
violation.” Montgomery Decl., ¶ 7; Id., Attach. 2, p. 2.
4
The term “kite” means “an inmate communication”. Reply, p. 4.
9 - OPINION & ORDER
denial of his complaint in his July 24, 2010, Grievance Form was not improper. See
OAR 291-109-0140(3)(e).
In addition, Plaintiff failed to exhaust his administrative remedies before filing
this action as required under the PLRA. OAR 291-105-0085 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.
OAR 291-105-0085(1).
The OAR further states that “[p]etitions for administrative review must be filed by
the inmate with the Inspector General within 60 calendar days after the Final Order is
signed by the functional unit manager or his/her designee or after a preliminary order
becomes the Final Order under OAR 291-105-0031.”5 OAR 291-105-0085(2). “Upon
receipt of the petition for administrative review, the Inspector General . . . shall review
the case to determine . . . [whether] (a) . . . there [was] substantial compliance with the
rule . . .; (b) . . . the finding [was] based upon a preponderance of evidence; and (c) . . .
the sanction imposed [was] in accordance with the provisions . . . .” OAR 291-1050085(4). The Inspector General is required to “provide the inmate with a written
response to the petition for administrative review within 60 days from the date it is
received by him/her.” OAR 291-105-0085(7).
5
OAR 291-105-0031 states that “[w]ithin ten working days following the conclusion of
the hearing [concerning a misconduct report], the hearings officer shall prepare and issue
a preliminary order containing the hearings officer’s findings of fact and conclusions of
law. Once issued, the preliminary order shall be delivered to the functional unit manager
or designee for his/her review.” OAR 291-105-0031(1).
10 - OPINION & ORDER
Because the August 2, 2010, Order “was an order for rule violations on Level I or
Level II of the major violation grid”, recommended retraction of Plaintiff’s earned time,
and recommended “deviation from the segregation sanction on the grid”, it was only
appealable and subject to administrative review by the Inspector General. See OAR 291105-0085(1); see also Montgomery Decl., ¶ 9. Pursuant to OAR 291-105-0085, Plaintiff
had until October 2, 2010–60 days from the date the Functional Unit Manager affirmed
Montgomery’s recommendations–to file a petition for administrative review with the
Inspector General. OAR 291-105-0085(2). Hicks’s July 27, 2010, Memo specifically
informed Plaintiff that the July 23, 2010, misconduct report and complaint concerning
use of force was not grievable because it had a “separate appeal/review process”. Hicks
Decl., Attach. 9, p. 1. Additionally, Nooth’s August 2, 2010, letter expressly informed
Plaintiff that his avenue for redress was to appeal Montgomery’s Order to the Inspector
General pursuant to OAR 291-105-0085. Opp’n, Ex. 5, p. 1. The only evidence
suggesting that Plaintiff properly followed the advice given–namely, that he timely
submit a kite to the Inspector General–is Plaintiff’s bald assertion that he did so and the
untimely Inmate Communication Form he sent to the Inspector General on November 17,
2010. See Opp’n, Ex. 2, p. 1. Notably absent from the volume of evidentiary
submissions supporting Plaintiff’s opposition to Defendants’ motion, including the
meticulous copies of the kites Plaintiff kept and the other documents Plaintiff maintained
and submitted to this court as a record of his interactions with Defendants and the
Inspector General, is the kite Plaintiff allegedly sent to the Inspector General on August
8, 2010. In fact, the August 8, 2010, kite is nowhere to be found in the entire record
before me.
11 - OPINION & ORDER
Based on the evidence presented by both parties, I simply cannot conclude that
Plaintiff timely sent a kite to the Inspector General on August 8, 2010, petitioning for
administrative review of the Order to the Inspector General. Plaintiff’s decision to
disregard the requirement that he timely appeal his sanctions to the Inspector General
within 60 calendar days after the Functional Unit Manager affirmed Montgomery’s
Order, and Plaintiff’s decision to ignore the explicit instructions that he make an appeal
to the Inspector General pursuant to OAR 291-105-0085 were fatal.6 See Brown, 422
F.3d at 941 (“prisoners are obligated to navigate all a prison’s administrative review
process regardless of the fit between a prisoner’s prayer for relief and the administrative
remedies possible”) (citation and internal quotation marks omitted); see also Woodford,
548 U.S. at 83-84, 88, 93 (an inmate generally cannot satisfy the exhaustion requirement
“by filing an untimely or otherwise procedurally defective administrative grievance or
appeal”). Accordingly, Plaintiff’s claims are dismissed without prejudice. See Wyatt,
315 F.3d at 1119 (“If the district court concludes that the prisoner has not exhausted
nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.”)
(Citation omitted).
II. Eighth Amendment Claims Against Davis, Closson, Hernandez, and Aly
Plaintiff contends that Closson, Hernandez, and Aly used excessive force against
him and thus violated his Eighth Amendment rights. “When prison officials use
excessive force against prisoners, they violate the inmates’ Eighth Amendment right to be
6
Plaintiff’s argument that administrative review by the Inspector General would have
been “futile” and “would not have changed anything” is unavailing. Opp’n, p. 3. The
mere possibility that administrative review by the Inspector General may not have
achieved Plaintiff’s desired results is insufficient to justify his decision to ignore the
appellate procedures he was required to follow, let alone establish that administrative
remedies were effectively unavailable.
12 - OPINION & ORDER
free from cruel and unusual punishment.” Clement v. Gomez, 298 F.3d 898, 903 (9th
Cir. 2002). “The core judicial inquiry . . . [i]s not whether a certain quantum of injury
was sustained, but rather whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 130
S. Ct. 1175, 1178 (2010) (citations and quotation marks omitted). In determining
whether the use of force was wanton and unnecessary, a court may consider the following
factors: (1) “the extent of injury suffered by an inmate”; (2) “the need for application of
force” and “the relationship between that need and the amount of force used”; (3) “the
threat reasonably perceived by the responsible officials”; and (4) “any efforts made to
temper the severity of a forceful response.” Hudson v. McMillian, 503 U.S. 1, 7 (1992)
(citation and quotation marks omitted). “Prison administrators . . . should be accorded
wide-ranging deference in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and discipline and to maintain
institutional security.” Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (citation and
quotation marks omitted). The Eighth Amendment’s prohibition of cruel and unusual
punishments “excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the conscience of mankind.”
Solis v. McKessen, 465 Fed. Appx. 709, 709 (9th Cir. 2012) (quoting Hudson, 503 U.S.
at 10).
Viewing the evidence in the light most favorable to Plaintiff, I conclude there is
no triable issue of fact that Closson, Hernandez, and Aly used excessive force in violation
of Plaintiff’s Eighth Amendment rights. Plaintiff makes no argument whatsoever as to
how Closson, Hernandez, and Aly used excessive force against him. More important, the
13 - OPINION & ORDER
evidence presented by Plaintiff does not create a triable issue of fact that Closson,
Hernandez, and Aly used excessive force. Plaintiff merely states that “[a]s [he] hit the
floor[,] . . . Clossom and Aly arrived and immediately jumped on top of [him and]
place[d] [him] in wrist restraints”. Opp’n, Ex. 3, ¶ 6. Plaintiff’s own evidence–namely
statements by Joseph Swift (“Swift”), another inmate at OSCI, merely shows that Aly
and Hernandez “pulled . . . Davis off of [Plaintiff]” and held Davis back as Clossom and
Hernandez officer took Plaintiff to the DSU. Opp’n, Ex., 4, pp. 1-2. Based on the
evidence before me, I conclude that Plaintiff fails to create a triable issue of fact as to
whether Closson, Hernandez, and Aly acted maliciously and sadistically rather than as
part of a good-faith effort to maintain or restore discipline. See Wilkins, 130 S. Ct. at
1178. Defendants’ motion for summary judgment as it pertains to Closson, Hernandez,
and Aly is granted.7
III. Whether Plaintiff’s Due Process Claims Are Barred
Defendants contend that Plaintiff’s due process claim is barred because a habeas
corpus proceeding, not a civil proceeding brought pursuant to § 1983, as here, is the
proper mechanism to address whether Plaintiff is entitled to the restoration of good-time
credits. See Compl., ¶ 5; Montgomery Decl., ¶¶ 4-5, 6; Id., Attach. 2, p. 10. Plaintiff
7
Defendants contend Plaintiff’s allegations against Davis for excessive force fail because
it was Plaintiff who “struck” Davis and because Plaintiff’s injuries are de minimus.
Plaintiff, however, presents evidence showing that Davis hit Plaintiff first and that Davis
continued to hit him even after he was in wrist constraints. Resp., Ex. 3, p. 1; Id., Ex. 4,
p. 1; Montgomery Decl., Attach. 2, pp. 13-14. Accordingly, Plaintiff creates a genuine
issue of material fact as to whether Davis used excessive force under the circumstances
here. See Wilkins, 130 S. Ct. at 1178-79 (“Injury and force . . . are only imperfectly
correlated, and it is the latter that ultimately counts. An inmate who is gratuitously
beaten by guards does not lose his ability to pursue an excessive force claim merely
because he has the good fortune to escape without serious injury.”). Despite my
determination, I conclude that Plaintiff’s claims against Davis must still be dismissed
because Plaintiff failed to properly exhaust all available administrative remedies.
14 - OPINION & ORDER
responds that his due process claims are cognizable because he “is also seeking money
damages” and because he was improperly “denied . . . access to witnesses”. Opp’n, pp.
7-8.
Plaintiff’s arguments miss the mark. “When a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence, . . . § 1983 is not an
available remedy.” Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011) (citation and
quotation marks omitted). On the other hand, “if . . . the plaintiff’s action, even if
successful, will not demonstrate the invalidity of [his conviction or sentence], the [§
1983] action should be allowed to proceed . . . .” Id. Even if the restoration of a
respondent’s good-time credits “would not have resulted in [the respondent’s] immediate
release, but only in shortening the length of [his] actual confinement in prison, habeas
corpus [is the] . . . appropriate remedy.” Preiser v. Rodriguez, 411 U.S. 475, 487 (1973).
Here, Plaintiff’s due process claim seeks to invalidate Montgomery’s August 2,
2010, Order on the basis that Plaintiff was not allowed to present witnesses and
photographs. It is clear that a favorable judgment in Plaintiff’s favor would necessarily
result in restoration of Plaintiff’s revoked good-time credits and would therefore
“necessarily demonstrate the invalidity of [Plaintiff’s] confinement or its duration”. See
Wilkinson v. Dotson, 544 U.S. 74, 75 (2005) (citation omitted). Accordingly, it would be
improper to allow Plaintiff to challenge “the fact or duration of his confinement” by
collaterally attacking them through this § 1983 action. See Bostic v. Carlson, 884 F.2d
1267, 1269 (9th Cir. 1989) (“Habeas corpus jurisdiction is available under 28 U.S.C. sec.
2241 for a prisoner’s claims that he has been denied good time credits without due
process of law.”). The fact that Plaintiff also seeks monetary damages in addition to his
15 - OPINION & ORDER
equitable relief does not necessarily make Plaintiff’s § 1983 action proper. See
Muhammad v. Close, 540 U.S. 749, 750-51 (2004) (“Some cases are hybrids, with a
prisoner seeking relief unavailable in habeas, notably damages, but on allegations that not
only support a claim for recompense, but imply the invalidity either of an underlying
conviction or of a particular ground for denying release short of serving the maximum
term of confinement.”); see also Wilkinson, 544 U.S. at 81-82 (“[A] state prisoner’s §
1983 action is barred (absent prior invalidation)–no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings)–if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.”).
In summary, because Plaintiff’s success regarding his due process claims would
necessarily demonstrate the invalidity of his confinement or its duration, the relief
Plaintiff seeks in this § 1983 action is improper.8
IV. Hannon and Nooth
Defendants argue that Hannon, the Security Manager at OSCI, and Nooth are
entitled to summary judgment because they were not personally involved in the alleged
deprivation of Plaintiff’s constitutional rights. Plaintiff asserts that although Hannon and
Nooth “may have arguably been unaware of their officer’s wrongdoing, initially,
[P]laintiff alerted them to this fact in communications after the assault on [P]laintiff
occurred . . . [and] were also made aware of the deprivations in the disciplinary
8
Having so concluded, I decline to address Defendants’ alternative argument that
Montgomery is entitled to summary judgment because Montgomery did not in fact deny
Plaintiff’s due process rights at the July 29, 2010, disciplinary hearing.
16 - OPINION & ORDER
hearings.” Opp’n, p. 8. Plaintiff also contends that Hannon and Nooth “have respondeat
superior responsibility” and therefore are not entitled to summary judgment. Id.
“Liability under section 1983 arises only upon a showing of personal
participation by the defendant. A supervisor is only liable for constitutional violations of
his subordinates if the supervisor participated in or directed the violations, or knew of the
violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1046 (9th
Cir. 1989) (citations omitted). There is, however, “no respondeat superior liability under
section 1983.” Id. “A plaintiff must allege facts, not simply conclusions, that show that
an individual was personally involved in the deprivation of his civil rights.” Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
The Complaint is absent any factual allegations supporting Plaintiff’s claims
against Hannon and Nooth. See Compl., p. 4. The only factual allegation concerning
Hannon and Nooth is that Plaintiff “wrote to Security Manager A. Hannon requested [sic]
to press charge [sic].” Id. More important, Plaintiff fails to present any evidence creating
a triable issue of fact that Hannon or Nooth participated in or directed his alleged civil
rights violations or knew of the violations and failed to prevent them. Defendants’
motion for summary judgment against Plaintiff’s claims against Hannon and Nooth are
granted.9
///
///
///
9
I decline to address Defendants’ argument that they are entitled to qualified immunity
because it does not affect my ultimate determination that Plaintiff’s claims must be
dismissed.
17 - OPINION & ORDER
CONCLUSION
For the reasons stated above, Defendants’ Motion (doc. #20) is GRANTED.
IT IS SO ORDERED.
Dated this
day of ____________, 2012.
MARCO A. HERNANDEZ
United States District Judge
18 - OPINION & ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?