Bradley v. Williams et al

Filing 73

ORDER: Granting Defendants' Motion to Dismiss 52 for Failure to State a Claim; Granting Defendants' Motion to Dismiss 53 ; Finding as Moot Motion for Appointment of Counsel 63 . Signed on 3/20/2012 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
JEFFERY BRADLEY,
Plaintiff,

6:10-cv-06404-AA
ORDER

v.
MAX WILLIAMS, et al.,
Defendants.
AIKEN., District Judge.
Plaintiff filed this

action under

42

U.S.C.

§

1983

alleging that his constitutional rights were violated when
defendants

imposed

sex

offender

treatment

condition of his post-prison supervision.

on

him

as

a

Plaintiff alleges

that because he had not been convicted of a sex offense the
imposition of these conditions were impermissible under Oregon
law and violated his federal constitutional rights. Plaintiff

1 -

ORDER

seeks declaratory relief and damages. Fourth Amended Complaint
(#66) .1
As a preliminary matter, plaintiff has filed a Motion for
Appointment

of

Counsel

(#63).

Generally,

there

constitutional right to counsel in a civil case.

is

no

United

States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir.
1986).

However, pursuant to 28 U.S.C.

§

1915(d), this court

has discretion to request volunteer counsel for

indigent

plaintiffs

Wood

in

exceptional

circumstances.

Id.;

v.

Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

While this

court may request volunteer counsel in exceptional cases, it
has no power to make a mandatory appointment.

Mallard v. U.S.

Dist. Court of Iowa, 490 U.S. 296, 301-08 (1989).

There are

no funds available to pay the services of such volunteer
counsel.
Plaintiff

has

not

established

circumstances that would justify a
counsel in this case.

Therefore,

any

exceptional

request for volunteer
plaintiff's Motion for

Appointment of Counsel (#63) is denied.
The alleged fats giving rise to plaintiff's claims are as
follows: In 1983, plaintiff was arrested for Rape I and Sodomy

1Plaintiff has filed three amended complaints. I construe
plaintiff's "Supplemented Pleading to the Amended Complaint" (#66)
as the operative pleadings before the court.
2

ORDER

I in Oregon.

The charges were subsequently dismissed.

In 2005, plaintiff was sentenced to 36 months in prison
and 36 months post-prison supervision for the crimes of
Burglary I and Criminal Mistreatment.
plaintiff

was

classified

as

Due to his 1983 arrest,

·Static-99,"

which

is

a

classification used by the Oregon Department of Corrections
[ODOC]

to classify inmates convicted of sex crimes.

ODOC

initially failed to notify plaintiff of the classification,
but it was removed on March 23, 2007.

Plaintiff was also

classified as a ·Special Case Factor 26 Sex-Offense (not a
maj or crime)."

After two years,

this classification was

removed.
Plaintiff was released from incarceration in January,
2008.

Plaintiff's conditions of PPS included the requirement

that he complete sex offender treatment.

Plaintiff requested

administrative review of these conditions,

but the Board

declined to rescind them from its order. Plaintiff petitioned
the Oregon Court of Appeals for judicial review of the Board's
order.

The petition was dismissed as moot when plaintiff's

term of PPS expired.
On December 23, 2008, plaintiff was sanctioned to five
days in jail by the local supervisory authority (defendant
Brosemer) for failing to complete sex offender treatment. As
a result of his incarceration plaintiff lost his employment

3 - ORDER

and housing.

Third Amended Complaint (#66) p. 2-3.

Plaintiff alleges "9aOs a result of the defendants'
actions they deprived plaintiff of his rights under Oregon
State

law and the

Due

Process Clause

of

the

Fifth

fourteenth Amendments of the United States Constitution.

and
Id.,

p. 8.

Before the court are defendants' motions to dismiss (#52)
and (#53).
Plaintiff's allegations make clear that he is seeking to
hold

defendants

Williams

and

supervisory

capacities,

ie.

On

superior.

However,

is

well

it

Burger
a

liable

theory

in

their

of

respondeat

settled that

respondeat

superior is not a proper basis for liability under 42 U.S.C.
§

1983.

658,

Monell v. Depratment of Social Services, 436 U. S.

691-694

(1978).

A supervisor

is

liable

for

the

constitutional violations of his subordinates only if the
supervisor participated in or directed the violations, or knew
of the violations and failed to act to prevent them.

Kin2 v.

Atiyeh, 814 F.2d 565, 568 (9 th Cir. 1987); Taylor v. List, 880
F.2d 1040, 1045 (9 th Cir. 1989);.

See~,

Shaw y. Stroud,

13 F.3d 791, 799 (4th Cir. 1994) (supervisory liability only
when a) actual or constructive knowledge of a pervasive and
unreasonable risk of injury; b) deliberate indifference to or
tacit authorization of the practice; and c) an affirmative

4

-

ORDER

Supervisory

causal link between inaction and the injury).

officials may also be liable if they "implement a policy so
deficient

that

constitutional

the

policy

rights'

and

'itself
is

is

a

repudiation

'the moving

force

of

of
the

consti tutional violation. '" Redman v. County of San Diego, 924
F.2d 1435, 1446 (9th Cir. 1991), cert. denied, 112 S. Ct. 972
(1992)

(quoting Hansen v. Black, supra, 885 F.2d at 646, in

turn quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.
1987); see also, Jane Doe A v. Special Schgol District, 901
F.2d 642, 645 (8 th Cir. 1990) ("The individual defendants are
subject to personal liability only if it can be proved that
they: 1) received notice of a pattern of unconstitutional acts
committed

by

subordinates;

(2)

demonstrated

deliberate

indifference to or tacit authorization of the offensive acts;
3) failed to take sufficient remedial action; and 4) that such
failure proximately caused injury.") .
Plaintiff has not alleged any facts that would establish
that defendants Williams or Burger personally participated in
the

alleged

constitutional

violations

giving

rise

to

plaintiff's claims or knew about them and failed to act to
prevent them.

Therefore, plaintiff has failed to state a

claim against defendants Williams or Burger.
Defendants Powers, Felton, Baker and Wheeler are current
or former members of the Oregon Board of Parole. The Board,

5

-

ORDER

its members and their assistants are entitled to absolute
immunity

and/or

quasi-judicial

immunity

official quasi-judicial functions.
906,

(9 th

908-909

Gir.

when

performing

Anderson v. Boyd, 714 F.2d

1983) ("quasi-judicial

immunity

completely shields covered officials when they perform the
functions which give rise to the need for absolute protection,
even if the officials make egregious mistakes in carrying out
these duties."); Demoran y. Witt, 781 F.2d 155, 157 (9 th Gir.
1984); Bermudez v. Duenas, 936 F.2d 1064 (9 th Gir. 1991);

~

also, Sopher v. Washington, 2008 WL 4793173, *11-12 (D. Or.
Oct. 30, 2008)
alleged
decision

"due

process

making"

amendments to
757, 761

(claims for injunctive relief and damages for

(2~

process

1983)

§

claims
of

(citing

premised
the

upon

Board

the

barred

specific
by

1996

Montero v. Travis, 171 F.3d

Cir. 1999)).

Plaintiff does not allege that the Board was acting
outside

of

its

conditions at

official

capacity

when

issue in this proceeding.

it

imposed. the

Plaintiff only

alleges that the Board used its authority in a way that was
improper and illegal. Accordingly, defendants Powers , Felton,
Baker and Wheeler are entitled to absolute immunity from
liability to plaintiff, and plaintiff's allegations against
them fail to state a claim.
Even if the defendant Parole Board members were not

6 -

ORDER

entitled to immunity,

I find that plaintiff has failed to

state a claim against them.
To state a claim cognizable under
must

allege

the

violation

of

a

§

right

1983, a plaintiff
secured

by

the

"Constitution and laws of the United States." West v. Atkins,
487 U.S. 42, 48 (1998).

"To the extent that the violation of

a state law amounts to the deprivation of a state-created
interest that reaches beyond that guaranteed by the federal
Constitution, Section 1983 offers no redress." Sweaney v Ada
County Idaho, 199 F.3d 1385, 1391 (9 th Cir. 1997) (quoting Poway
Unified School District, 90 F.3d 367, 370 (9 th Cir. 1996)).
Thus,

plaintiff's claim that the defendant Board members

violated state law dose not state a claim cognizable under

§

1983.
The violation of a state law can serve as the basis of a
§

1983 action "where the violation of state law causes the

deprivation of rights protected by the Constitution or laws of
the United States." Draper y. Coombs, 792 F.2nd 915, 921 (9 th
Cir. 1986).

However, plaintiff has failed to establish how

the imposition of the sex offender treatment requirement
violated any specific constitutionally protected right
In Neal v. Shimoda, 131 F.3d 818

(9 th Cir. 1997), the

Ninth Circuit addressed the liberty interest implicated by
requiring inmates to participate in sex offender treatment and

7 -

ORDER

concluded that inmates,

like plaintiff,

who had not been

convicted of a sex offense were entitled to the procedural due
process guarantees under the standards set forth in Wolff v,
McDonnell, 418 U,S, 539 (1974),
Assuming arguendo hat plaintiff had a liberty interest in
not being subjected to sex offender conditions while on PPS,
he has failed to allege that the Board denied him any of the
Wolff v, MCDonnell procedural due process guarantees,
In addition I find that plaintiff has failed to establish
that the imposition of sex offender treatment as a condition
of his PPS was illegal under Oregon law,
Plaintiff contends that ORS 163,205 to 163.479 require a
conviction

in

before

special

conditions

of

post-prison

supervision may be imposed to a petitioner's conditions of
PPS.
However, the Oregon court of Appeals considered these
statutes and concluded that "the board is authorized to impose
special conditions of post-prison supervision based on an
offenders criminal history and background, rather than based
only on the current crimes of conviction."

Weems /Roberts v,

Board of Parole, 347 Or. 586 (2010).
In Weems, the petitioner, like plaintiff in this action,
had been charged with, but never convicted of, various sex
crimes,
8 -

ORDER

Based on Weems criminal history, the Board required

him to enter and complete a sex offender treatment program.
The petitioner challenged this condition in an administrative
appeal arguing that it was improper because he had never been
convicted of a sex crime. The Oregon Supreme Court concluded
that the Board acted within its authority when it determined
the conditions of Weems' release.
Based on the Oregon Supreme Court's analysis in Weems I
find

that

plaintiff

has

failed

to

establish

that

the

imposition of the sex offender conditions was illegal under
Oregon law.

Thus even if a

§

1983 violation could be premised

on violations of Oregon state law, plaintiff's allegations
fail to state a claim.
Plaintiff alleges that defendant Brosemer was a Deputy
Sheriff employed by Lane County and was "plaintiff parole
officer at all times relevant to this complaint." Plaintiff's
Supplemented Pleading to the Amended Complaint (#66) p. 2.
Plaintiff alleges "[o]n the afternoon of December 23, 2008,
defendant Brosemer, gave plaintiff a five (5) day sanction, at
Lane County Adult Corrections (LCAC).

Defendant had no other

reason for requiring plaintiff to do this treatment other
than, 'The parole board says I can.'" Id. p. 9.
In Demoran v. Witt, supra, the Ninth circuit Court of
Appeals held that probation officers are entitled to judicial
immunity because, like parole officers, their functions "bear

9 -

ORDER

a close association to the judicial process." 781 F.2d at 157.
I

find

that

Defendant

Brosemer

is

entitled

to

absolute

judicial immunity from liability to plaintiff for imposing the
5 day jail sanction on plaintiff.
To the extent defendant Brosemer may not be entitled to
absolute

immunity,

I

find

he

is

entitled

to

qualified

immunity.
Qualified immunity shields government officials "from
liability for civil damages insofar as their conduct does not
violate clearly established constitutional rights of which a
reasonable person would have known."
457 U.S. 800, 818 (1982).

Harlow v. Fitzger:ald,

In deciding whether a defendant is

entitled to qualified immunity against a

§

1983 claim, the

court must first decide whether the facts that the plaintiff
has

alleged

or

proven

constitutional right.

establish

the

violation

of

a

If they do not, then the defendant is

entitled to qualified immunity.

Secondly, the court must

decide whether the right at issue was clearly established at
the time of the defendant's conduct.

If it was not,

defendant is entitled to qualified immunity.

the

Pearson v.

Callahan, 555 U.S. 223 (2009); Saucier v. Katz, 533 U.S. 194,
200-01 (2001).
In this case, for the reasons set forth above, I find
that plaintiff has failed to establish a violation of his

10 - ORDER

constitutional rights.

However, even assuming arguendo that

defendant Brosemer's imposition of the five day jail sanction
violated plaintiff's constitutional rights,
would not be
Bosemer's

clear to

circumstances

plaintiff's rights.

a

I find that it

reasonable person in defendant

that

his

sanction

would

violate

Plaintiff's own allegations suggest that

defendant Brosemer believed he was acting pursuant to a lawful
directive of the Board.

[viz.

f

"The parole board says I

can. "]
Based on all of the foregoing, defendants' Motions to
Dismiss

(#52)

and

(#53)

are

allowed.

This

action

is

dismissed.
For purposes o£ continuing plainti££' s in £orma pauperis
status on appeal, I £ind that any appeal £rom this order would
be taken in good £ai th.

IT IS SO ORDERED.
DATED this

W

day of March, 2012.

Ann Aiken
United States District Judge

11 -

ORDER