Harper v. Premo et al
Filing
90
OPINION AND ORDER: Because no genuine issues of material fact exist as to whether the Defendants violated Mr. Harpers constitutional rights, Mr. Harpers motion for summary judgment 24 is DENIED and the Defendants motion for summary judgment 61 is GRANTED. Signed on 3/28/14 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
DANIEL ZACHARY HARPER,
6:13-cv-00097-MO
Plaintiff,
OPINION AND ORDER
v.
JEFF PREMO, Superintendent OSP;
CORPORAL POLK, OSP Security;
C. PARKER, OSP Security; C. LENEX, OSP
Support Staff; S. DARR, OSP Security;
P. PATTERSON, OSP Security; JOHN DOE,
ICH Legal Officer, individually and in their
official capacities,
Defendants.
MOSMAN, J.,
Plaintiff pro se Daniel Harper filed the instant lawsuit on January 17, 2013. (Compl. [2].)
He alleges that while housed at the Oregon State Penitentiary (“OSP”), numerous prison officials
(collectively, “the Defendants”) violated his constitutional rights as secured by the Eighth and
Fourteenth Amendments. First, Mr. Harper alleges that Defendants violated his Fourteenth
Amendment right of access to the courts when he was denied access to his legal materials for
1 – OPINION AND ORDER
twenty-three days, following his transfer to OSP from a different prison on February 2, 2011. Id.
¶ 20. Mr. Harper contends that his inability to access his legal materials prevented him from
raising eight assignments of error in his direct appeal proceedings, and consequently he is
procedurally barred from pursuing those claims in post-conviction relief. Id. ¶¶ 20–22. Second,
Mr. Harper alleges that he was subjected to cruel and unusual punishment when the Defendants
failed to dispense his prescribed fluoxetine1 from February 2 to February 13, 2011. Id. ¶ 23. Mr.
Harper alleges that he became suicidal due to withdrawals from the antidepressant, and in fact
attempted to commit suicide on February 13, 2011, by biting his wrist. Id. ¶ 23. Finally, Mr.
Harper alleges that he was subjected to cruel and unusual punishment when two correctional
officers, knowing he was suicidal, moved him into an unmonitored cell and ridiculed him. This
incident also occurred on February 13, 2011, and allegedly contributed to Mr. Harper’s alleged
suicide attempt. Id. ¶ 23. Mr. Harper seeks declaratory relief and compensatory and punitive
damages. Id. ¶¶ 26–28. Now before me are dueling motions for summary judgment. Mr. Harper
moved for summary judgment [24] prior to discovery, and the Defendants moved for summary
judgment [60] on all three claims at the close of discovery. Because I find no genuine issue of
material fact that could lead a rational jury to find a constitutional violation, I DENY Mr.
Harper’s motion for summary judgment and GRANT the Defendants’ motion for summary
judgment.
FACTUAL BACKGROUND
I.
The Transfer to OSP and Lack of Access to Legal Work
Mr. Harper was moved to OSP on February 2, 2011. (Etter Decl. [65] ¶ 5.) Upon his
arrival, he was assigned to a general population cell in the “D Block,” which was under the
1
The generic form of Prozac, an antidepressant.
2 – OPINION AND ORDER
supervision of Defendant Polk. (Polk Decl. [63] ¶ 4.) Later that same day, Mr. Harper informed
Defendant Polk that he could not return to his cell on the D Block because he “could not live
where he was assigned,” and was thinking about harming himself. Id. After confirming that Mr.
Harper was indeed refusing to go to his cell, Defendant Polk escorted Mr. Harper to the
Disciplinary Segregation Unit (“DSU”) and issued him a misconduct report for failing to “cell
in.” Id.
Inmates housed in the DSU are allowed a limited amount of personal property, such as
clothing, toiletries, pillows and blankets, paper, and writing utensils. (Etter Decl. [65] Attach. 2
at 10–11.) Inmates that are classified as “short-term status” are also permitted to have 20
envelopes, one library book, one newspaper, three magazines, pending legal work, and an
address book. Id. at 19. See also Or. Admin. R. 291-011-0050 (3)(a)–(g). Mr. Harper was
considered a short-term inmate because he was scheduled to be confined to the DSU for less than
30 days, and thus was entitled to his pending legal work and an address book. (Etter Decl. [65]
¶ 7.) According to the DSU Guidelines, inmates are allowed one opportunity to make a property
request, with an exception for legal materials necessary for pending legal action, which can be
requested at any time. Id. Attach. 3 at 1. When the DSU property officer receives a written
request for personal materials, the officer will determine whether the property is approved for
inmates housed in the DSU. Id. ¶ 11.
On February 2, 2011, the day he entered the DSU, Mr. Harper was provided with two
blank communication forms and instructions to send written property requests to the DSU
property officer. Id. ¶ 10. If Mr. Harper had made a verbal request for property, Defendants
would have instructed him to make a written request. (Etter Decl. [65] at ¶ 10; Patterson Decl.
[64] ¶ 8.)
3 – OPINION AND ORDER
Mr. Harper delivered his first written request for property on February 9, 2011, to
Defendant Lenex. (Etter Decl. [65] Attach. 4 at 1.) Of relevance here, in this written property
request, Mr. Harper notified Defendant Lenex that “D.O.C. [Department of Corrections] is
keeping my legal property from me.” Id. The next day, on February 10, Mr. Harper delivered a
written property request to Defendant Darr, this time specifying that “I need my direct appeal
lawyers [sic] information because I have to keep him updated on my current address.” Id. at 2.
Defendant Darr asked Mr. Harper to specify the attorney’s name. Id.
On February 14, Mr. Harper was transferred from his cell in the DSU to a cell in the
Intermediate Care Housing (“ICH”) unit.2 Id. Attach. 1 at 3. Apparently, Mr. Harper was not
provided the remainder of his property, because on February 15, Mr. Harper sent a written
request to Defendant Parker. Mr. Harper said that he needed some envelopes with his attorney’s
address, because he had not yet been able to notify his attorney of the transfer to OSP, and “[i]t is
vital for my appeal attorney to know where I’m at” because “I was transferred here at the end of
an important deadline.” Id. Attach. 4 at 3. Mr. Harper wrote to Defendant Parker again the next
day, and again asked about legal materials, though he acknowledges that he had by then received
some of his property “from DSU.” Id. at 4. On February 20, Mr. Harper wrote another request to
Defendant Doe, a “legal officer,” seeking the return of his legal materials, indicating that he had
also tried calling the “Attorney General” for help. Id. at 5. In response, Mr. Harper was told that
he had been scheduled to meet with a paralegal on February 28. Id. Five days later, on February
25, Mr. Harper delivered a succinct “I’d really like to get my property, please” to Defendant
Parker. Id. at 6. His legal materials were apparently returned that same day. Id.
2
Inmates are assigned to the ICH upon referral from a mental health care specialist. See Or. Admin. R.
291-048-0270.
4 – OPINION AND ORDER
II.
The Incident on February 13, 2011
During his time in the DSU, Mr. Harper was assigned to cell DS-102, located on the first
tier of the unit. (Polk Decl. [63] ¶ 6.) On February 13, 2011, Mr. Harper approached Defendant
Polk and stated that he intended to hurt himself. Id. ¶ 7. Defendant Polk asked Defendant
Patterson to assist him in escorting Mr. Harper to an administrative holding area within DSU,
after which they would notify the Shift Lieutenant of Mr. Harper’s statements. Id. After escorting
Mr. Harper to the administrative area, Defendants Polk and Patterson briefly stepped into the
DSU office in order to call the Shift Lieutenant and report Mr. Harper’s threats of self-harm.
(Patterson Decl. [64] ¶ 6.) Mr. Harper “seemed to be doing fine sitting in the holding cell.” Id.
Both Defendant Polk and Defendant Patterson deny making antagonizing statements or threats to
Mr. Harper, or purposefully placing him in an unmonitored holding cell knowing that he had
suicidal ideations. (Polk Decl. [63] ¶¶ 10–11; Patterson Decl. [64] ¶ 9.) Nevertheless, at some
point during his time in the holding cell, Mr. Harper attempted suicide by trying to “bite through
his artery on his left wrist.” (Ruthven Decl. [66] Attach. 2 at 38.) He “only received a superficial
abrasion.” Id. Mr. Harper was then placed in the ICH for “close supervision.” Id. ¶ 7 & Attach. 1
at 3.
Following the suicide attempt, Mr. Harper met with a psychiatrist, Dr. Ruthven, on
February 17, 2011. Id. Attach. 2 at 40. Dr. Ruthven’s notes from the February 17 assessment
reveal that Mr. Harper was still angry about the February 2 misconduct report, issued by
Defendant Polk, which resulted in Mr. Harper’s transfer to the DSU. Id. at 39. Mr. Harper told
Dr. Ruthven that he “bit a chunk out of [his] wrist so [he] could bleed and let them know how
angry [he] was at [Defendant Polk].” Id. Dr. Ruthven noted that Mr. Harper had been placed in
the ICH on “suicide close observation status.” Id. However, Dr. Ruthven felt that Mr. Harper
5 – OPINION AND ORDER
“will not need ICH level of care for very long. He was not suicidal, he was angry and continues
to be angry and anxious.” Id. Dr. Ruthven also noted “some concern that [Mr. Harper] will
utilize BHS [Behavioral Health Sciences] services as a means to avoid consequences of his
behavior and this will need to be monitored.” Id.
III.
Prescription Medication
While still housed at SRCI, Mr. Harper was prescribed 10 mg/day of the antidepressant
fluoxetine, set to increase to 20 mg/day on January 25, 2011. (Ruthven Decl. [66] ¶ 8.)
Beginning the day after he arrived at OSP, however, Mr. Harper did not receive his daily
fluoxetine for 11 days, from February 3 to February 13. Id. ¶ 6. Apparently, Mr. Harper was
offered his daily dose of fluoxetine on the morning of February 6, but refused to take the
medication. Id. ¶ 6.3 On February 14, 2011, Mr. Harper “received his morning dose [of
fluoxetine],” and he also received his morning dose from February 16–28. Id. ¶ 6.
As noted above, Dr. Ruthven examined Mr. Harper on February 17. Id. ¶ 8. Dr. Ruthven
explained that “Mr. Harper reported to me he had no side effects and no perceived benefit from
the anti-depressant.” Id. Although Mr. Harper had not been taking fluoxetine long enough to
allow an adequate diagnosis of its potential benefits or negative side effects, Dr. Ruthven “felt it
should be continued.” Id. ¶ 10. Dr. Ruthven notes that “[Mr. Harper] did not mention . . . that he
had not been receiving his fluoxetine [after he arrived at OSP].” Id. In any event, Dr. Ruthven
felt that “Mr. Harper’s action [i.e., the suicide attempt] was out of anger rather than a suicide
attempt and was not the result of missing his morning dose of fluoxetine. The outcome of
missing two weeks of fluoxetine is minimal and would not create suicidal ideation.” Id. ¶ 7. Also
3
Dr. Ruthven’s declaration states that Mr. Harper refused fluoxetine on the morning of February 6, 2010,
but I assume this is a typo.
6 – OPINION AND ORDER
during this time, Mr. Harper was receiving a daily dose of amitriptyline to relieve abdominal
pains, and apparently received the dosage throughout the month of February. Id. ¶ 6; Attach. 2 at
40.
LEGAL STANDARDS
Summary judgment must be granted in favor of the moving party when “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of
demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
If the moving party meets its initial burden, the non-moving party must identify facts that
show a genuine issue for trial. Id. at 324. The non-moving party cannot meet its own burden by
relying on allegations in the complaint, or by relying on “unsupported conjecture or conclusory
statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). However,
the record will be reviewed in the light most favorable to the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962); Bell v. Cameron Meadows Land Co., 669 F.2d 1278,
1280 (9th Cir. 1980). In cases in which a defendant moves for summary judgment against a pro
se prisoner, either the court or the movant must provide the prisoner with “fair notice” of the
requirements of the summary judgment rule. See Rand v. Rowland, 154 F.3d 952, 956–59 (9th
Cir. 1998) (affirming and setting out parameters of the fair notice requirement).
In sum, “[w]here the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for trial” and summary judgment should be
granted. Matsushita Elec. Ind. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
7 – OPINION AND ORDER
DISCUSSION
Mr. Harper and the Defendants have each moved for summary judgment. I discuss each
of their motions in turn.
I.
Mr. Harper’s Motion for Summary Judgment
Mr. Harper filed his motion [24] on July 12, 2013, prior to discovery. Mr. Harper devotes
the majority of his brief [26] to contesting the defenses set forth in the Defendants’ answer [21],
and states that “[t]he Defendants chose not to dispute any of the claims that are outlined in the
Complaint; instead, they offer vague defenses that do not apply to this case.” (Pl.’s Mem. Supp.
[26] at 9.) In light of the “undisputed issues cited within the Complaint,” Mr. Harper argues that
he is entitled to a grant of summary judgment. Id. at 10.
Mr. Harper does not identify the material facts, undisputed by the Defendants, entitling
him to judgment as a matter of law. The Defendants’ answer [21] raised a number of
“affirmative defenses,” including statute of limitations and failure to exhaust arguments, and Mr.
Harper offers evidence sufficient to defeat some of these defenses.4 For example, Mr. Harper has
submitted evidence that he properly exhausted the administrative grievance process, as required
by the 42 U.S.C. § 1997e(a). (Pl.’s Resp. [76] Attach. 6.) Further, Mr. Harper’s claim is timely.
See Wallace v. Kato, 549 U.S. 384, 387 (2007) (Section 1983 claims borrow limitations period
from state-law personal injury claims); Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002)
(applying Oregon’s two-year personal injury limitations period to § 1983 claim). However, Mr.
Harper does not identify undisputed material facts that demonstrate his entitlement to prevail on
the merits of his constitutional claims. Mr. Harper essentially restates allegations from his
4
The Defendants concede that four of their defenses are inapplicable to Mr. Harper’s claims, including
failure to state a claim, “PLRA exhaustion,” statute of limitations, and substitution. (Defs.’ Resp. [30] at
2.)
8 – OPINION AND ORDER
complaint, including that “Defendants . . . knew that Plaintiff had a legal deadline, and needed
his legal property[,]” that “Plaintiff repeatedly sought his controlled by staff medication for more
than 10 consecutive days,” and that “Defendants Polk and Patterson left Plaintiff alone and unmonitored after Plaintiff expressed suicidal thoughts to them.” (Pl.’s Mem. Supp. [26] at 8–9.)
Pro se litigants’ complaints are to be liberally construed. See, e.g., Weilburg v. Shapiro,
488 F.3d 1202, 1205 (9th Cir. 2007); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
However, a plaintiff cannot simply rely on the allegations contained in the pleadings to obtain
summary judgment in its favor, as “a party seeking summary judgment always bears the initial
responsibility of . . . identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; see also Hernandez, 343
F.3d at 1112. Because he has not identified undisputed material facts that entitle him to a
favorable judgment as a matter of law, Mr. Harper’s motion for summary judgment [24] is
DENIED.
II.
Defendants’ Motion for Summary Judgment
The Defendants move for summary judgment [61] on all of Mr. Harper’s claims.
Although Defendants do not explicitly raise a right to qualified immunity in their motion for
summary judgment, they have asserted qualified immunity as an affirmative defense in their
Answer. (Answer [21] ¶ 14–15; Defs.’ Resp. Mot. Strike [57].) Qualified immunity provides
government officials immunity “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). At the summary judgment stage, the court’s inquiry is twofold: I must
determine whether the facts shown by the plaintiff “make out a violation of a constitutional
right,” and whether the right at issue was “clearly established at the time of the defendant’s
9 – OPINION AND ORDER
alleged misconduct.” Id. at 232 (internal quotations omitted). Defendants argue that no
constitutional violation occurred, and have submitted evidence to support that argument. As
discussed below, I find that Defendants’ conduct did not violate Mr. Harper’s constitutional
rights. Therefore, I need not consider whether any of the rights allegedly violated were clearly
established in February 2011, when the events at issue took place.
Defendants argue that the undisputed facts demonstrate: (1) there was no delay in
allowing Mr. Harper access to his legal material, and even if there was some short delay, Mr.
Harper has presented no evidence that the delay affected his ability to raise the eight assignments
of error on direct appeal;5 (2) that neither Defendant Polk nor Defendant Patterson ridiculed or
antagonized Mr. Harper, and did not subject him to cruel and unusual punishment; and (3) while
Mr. Harper did not receive his prescribed fluoxetine from February 3 to February 13, 2011, “Mr.
Harper’s self-injury was superficial and was not the result of missing his fluoxetine medication,”
meaning that the Defendants cannot be liable for deliberate indifference to a serious medical
need. (Defs.’ Am. Mem. Supp. [67] at 11–15.) I will analyze each claim in turn.
A.
Access to the Courts
The Defendants agree that inmates have a First Amendment right to access the courts and
petition the government for redress. (Defs.’ Am. Mem. Supp. [67] at 11 (citing Silva v. Di
Vittoria, 658 F.3d 1090, 1101 (9th Cir. 2011).) Defendants argue that there was no delay in
giving Mr. Harper his legal materials, and that even if there was some minimal delay, Mr. Harper
5
The Defendants consistently characterized Mr. Harper’s ongoing appellate proceeding during February
2011 as a “post-conviction appeal,” but this is inaccurate. Mr. Harper’s “Memorandum of Unpreserved
Legal Claims” reveals that during 2011, he was engaged in direct appeal from his conviction under Or.
Rev. Stat. § 138.040. (Mem. Claims [81] Att. 10 at 1.) Mr. Harper argues that the delay in receiving his
legal paperwork during February 2011 rendered him unable to raise eight assignments of error on direct
appeal, thus making those arguments procedurally defaulted in later post-conviction proceedings. See Or.
Rev. Stat. § 138.550; see also Palmer v. State of Oregon, 318 Or. 352, 867 P.2d 1368 (1994).
10 – OPINION AND ORDER
offers no evidence that the delay affected his ability to raise issues in his appellate proceedings,
especially considering that Mr. Harper had an attorney. Id. 12–13.
Mr. Harper does not allege a First Amendment violation, but rather argues that the
Defendants’ refusal to grant him access to his legal materials infringed his due process rights.6
(Compl. [2] at 5.) An inmate’s right of access to the courts is protected under both “the First
Amendment right to petition and the Fourteenth Amendment right to substantive due process.”
Silva, 658 F.3d at 1103. It is therefore appropriate to treat Mr. Harper’s right of access to the
courts claim as implicating both his First Amendment and Fourteenth Amendment rights.
The Ninth Circuit distinguishes access to court claims between “those involving
prisoners’ right[s] to affirmative assistance and those involving prisoners’ rights to litigate
without active interference.” Silva, 658 F.3d at 1102 (emphasis in original). The right to
affirmative assistance is met through the provision of adequate law libraries or adequate
assistance from persons with legal training. See Bounds v. Smith, 430 U.S. 817, 828 (1977).
However, a prisoner only has a right to legal assistance when directly or indirectly attacking a
sentence or challenging the conditions of their confinement, and the right is limited to the
pleading stage. Lewis v. Casey, 518 U.S. 343, 355, 384 (1996). On the other hand, the right to be
free from interference forbids the states from “erec[ting] barriers that impede the right of access
of incarcerated persons.” Silva, 658 F.3d at 1102–03 (citing, inter alia, Snyder v. Nolan, 380
F.3d 279, 291 (7th Cir. 2004) (per curiam)). Thus, “prisoners . . . have a right, protected by the
First Amendment right to petition and the Fourteenth Amendment right to substantive due
process, to pursue legal redress for claims that have a reasonable basis in law or fact.” Id. at 1103
6
Mr. Harper references both the Fifth Amendment’s and the Fourteenth Amendment’s Due Process
clauses, but in the absence of federal government conduct I will treat his claim as sounding in the
Fourteenth Amendment’s protection of due process. See Silva, 658 F.3d at 1103.
11 – OPINION AND ORDER
(citations omitted). Unlike the right to adequate assistance recognized in Bounds, the right to be
free from undue interference extends beyond the pleading stages. Id. at 1103.
The Supreme Court’s opinion in Lewis v. Casey, 518 U.S. 343 (1996), is instructive.7
There, the Court explained that an access to the courts claim is only colorable upon a showing of
actual injury. Casey, 518 U.S. at 349. In undue interference cases, the Ninth Circuit has likewise
spoken of the need to demonstrate actual injury. Silva, 658 F.3d at 1103–04. The Casey Court
also explained that Bounds’s recognition of a right to adequate assistance derived from the
fundamental, and antecedent, right to access the courts. Casey, 518 U.S. at 354. Thus, cases on
which the Bounds decision was built sought to protect that right by prohibiting the state from
interfering with inmates’ attempts to prepare legal documents. Id. at 351.
Finally, access to court claims brought against prison officials must be judged within the
deferential rubric of Turner v. Safely, 482 U.S. 78, 89 (1987), where “a prison regulation
impinging on inmates’ constitutional rights is valid if it is reasonably related to a legitimate
penological interest.” Applying this test in Casey, the Court found no constitutional violation
where Arizona prison regulations resulted in “lockdown” inmates experiencing delays in
accessing their legal materials for up to 16 days, even when such delays caused actual injury. See
Casey, 518 U.S. at 361–62.
In this case, Mr. Harper’s allegations are best characterized as an “undue interference”
claim, as he alleges that the Defendants violated his right of access to the courts by withholding
his legal materials for twenty-three days after his arrival at OSP. (Compl. [2] at 5.) Mr. Harper
alleges that he notified the Defendants of “an imminent deadline in the Direct Appeal” of his
7
Casey is an “adequate assistance” as opposed to “undue interference” case, but the Court speaks broadly
of the entire right of access to the courts.
12 – OPINION AND ORDER
criminal conviction that was due in February of 2011. Id. ¶ 20. As a result of the delay in
accessing his legal work, Mr. Harper was “deprived . . . of the ability to present and litigate eight
(8) errors to the Oregon Court of Appeals.” Id. at ¶ 21. Defendants contend that the undisputed
facts show that Mr. Harper’s first written request for legal materials came on February 10, 2011,
eight days after his reassignment to the DSU.8 (Defs.’ Mem. Supp. [67] at 12.) Inmates in the
DSU must make property requests in writing, and they are provided communication forms and
instructions on how to make such requests. (Etter Decl. [65] ¶¶ 10–11; Attach. 3 at 1–2.) After
Mr. Harper’s first request, Defendants assert that they responded to each successive property
request by, inter alia, providing Mr. Harper with his attorney’s address and scheduling “legal
assistance” with an inmate paralegal. (Defs.’ Mem. Supp. [67] at 12.) Finally, Defendants
contend that because Mr. Harper was represented by counsel in his direct appeal proceedings,
“Plaintiff [has not] established any facts to indicate that any delay actually caused him to lose
eight (8) assignments of error in his [direct] appeal.” Id. at 13.
1.
Interference with Mr. Harper’s Access to Legal Materials
As Casey teaches, an access to the courts claim must be considered within the deferential
framework of Turner. Thus, a policy that caused Arizona inmates to experience a 16-day delay
in receiving their legal materials was constitutionally acceptable, because the policy was
rationally related to a legitimate penological interest. Casey, 518 U.S. at 361–62. This case is
different. Mr. Harper is not attacking the validity of the DSU policies themselves, but rather the
Defendants’ failure to follow those policies and release Mr. Harper’s legal materials after
8
In fact, Mr. Harper delivered a property request on February 9, informing Defendant Lenex that “D.O.C.
is keeping my legal property from me.” (Etter Decl. [65] Attach. 4 at 1.) Granted, Mr. Harper used a
declarative rather than interrogative sentence, but it is unnecessary to be so punctilious about his
grammar. It is clear what Mr. Harper meant.
13 – OPINION AND ORDER
numerous requests.9 The Defendants contend that there was simply no delay, because “in each
case, the Plaintiff received a response within one day of his request.” (Defs.’ Mem. Supp. [67] at
12.) Of course, a “response” is not the same as actually providing the requested legal property,
and Defendants’ argument relies on reading each of Mr. Harper’s requests extremely narrowly—
for example, by construing Mr. Harper’s February 10 request to only relate to his attorney’s
address, rather than all of his legal paperwork. Id.10 As noted above, Mr. Harper’s first written
request concerned his “legal property” in general, and his February 20 request clearly stated “I
still do not have my legal property.” (Etter Decl. [65] Attach. 4 at 1, 5.) Viewing the evidence in
the light most favorable to Mr. Harper, the request referenced his attorney to help explain why he
needed his property, not to limit the scope of legal materials requested. Assuming Department of
Corrections officials have a legitimate penological interest in restricting the amount and type of
personal property allowed in the DSU, Defendants offer no argument that the failure to follow
such policies likewise serves a legitimate penological interest. Thus, Mr. Harper has raised issues
of disputed fact demonstrating that Defendants’ actions cannot be justified under Casey’s
application of the deferential Turner framework.
2.
No Showing of Actual Injury
Even assuming the Defendants’ actions are not justified by a legitimate penological
interest, Mr. Harper raises no genuine issues of fact that demonstrate actual injury to a non9
Defendants offer somewhat contradictory evidence about the substance of those policies. On the one
hand, Defendants contend that DSU inmates must make written property requests, and an inmate making
a verbal request “would have been instructed to send a written request to the DSU property officer.”
(Etter Decl. [65] at ¶ 10.) On the other hand, neither the Oregon Administrative Rules nor the “DSU
Rules/Guidelines” seem to require that property requests be made in writing. See id. Attach. 3 at 1; Or.
Admin. R. 291-011-0050.
10
Mr. Harper’s February 10 request read, in part, “I would like to be issued whatever property I have that
is DSU approved. At the very least I need my direct appeal lawyers [sic] information because I have to
keep him updated on my current address.” (Etter Decl. [65] Attach. 4 at 2.)
14 – OPINION AND ORDER
frivolous legal claim caused by the delay. See Casey, 518 U.S. at 350–53. A prisoner bringing an
undue interference claim must show actual injury. See, e.g., Silva, 658 F.3d at 1103–04; Smith v.
Figeroe, 456 Fed. App’x 694, 695 (9th Cir. 2011). Mr. Harper contends that as a result of the
delay, he “was not able to present and litigate errors that occurred during the trial of his criminal
convictions to [t]he Oregon Court of Appeals.” (Compl. [2] ¶ 13.) In support of this contention,
Mr. Harper filed a Memorandum of Unpreserved Legal Claims [81],11 which includes a copy of
his petition for post-conviction relief. Mr. Harper alleges that he notified the Defendants of an
“imminent deadline” pending in his direct appeal, and lists eight claims that he would have
raised to the Oregon Court of Appeals, but for the delay. (Mem. Claims [81] at 2–3.) The appeal
was submitted to the Oregon Court of Appeals on December 14, 2011. Id. at 3; see also State v.
Harper, 251 Or. App. 239, 283 P.3d 408 (2012).12
Mr. Harper’s argument is problematic, in two ways. First, he offers no evidence that he
was actually barred from including the specified “eight claims” in his post-conviction petition. In
fact, many of the allegedly unpreserved claims actually were raised in Mr. Harper’s petition for
post-conviction relief. Id. Attach. 17 (claim that two jurors were biased and should have been
removed; claim that trial judge should have recused himself after receiving notice of misconduct
report). Second, even assuming that Mr. Harper was procedurally barred from making some
arguments in the post-conviction proceeding, he offers no evidence that his failure to raise those
issues on direct appeal was caused by the delay in receiving his legal materials at OSP. Mr.
Harper was represented by counsel during his direct appeal process. (Mem. Claims [81] Attach.
11
Although this memorandum is not accompanied by a sworn declaration, I will treat the memorandum as
true for purposes of summary judgment.
12
The Court of Appeals released its decision on July 18, 2012, ordering a partial remand for resentencing
based on the trial court’s failure to merge Mr. Harper’s conviction on two counts of first degree theft. See
Harper, 283 P.3d at 409–10).
15 – OPINION AND ORDER
10 at 1.) Further, correspondence between Mr. Harper and his appellate attorney reveal that the
issues that Mr. Harper wanted to raise on appeal were being discussed well before his transfer to
OSP (and, as noted above, many were indeed raised at the post-conviction proceeding).13
Presumably, Mr. Harper’s attorney was capable of presenting all relevant assignments of error to
the Oregon Court of Appeals. If not, Mr. Harper was free to raise an ineffective assistance of
counsel claim in his petition for post-conviction relief, and in fact did just that. Id. Attach. 17 at
22–25.14 Finally, there is simply no evidence regarding the “imminent deadline” itself. Mr.
Harper alleges that an important appeals deadline was “due in February,” but offers no evidence
beyond the pleadings that demonstrates such a deadline actually existed.
Even assuming Mr. Harper has raised genuine issues of fact regarding the Defendants’
actions in delaying the provision of his legal property, he has failed to point to any disputed facts
demonstrating that the delay caused actual injury to a nonfrivolous legal claim. Thus, the
Defendants are entitled to summary judgment on Mr. Harper’s access to court claim.
B.
Cruel and Unusual Punishment
Mr. Harper contends that he was subjected to cruel and unusual punishment at the hands
of Defendants Polk and Patterson. (Compl. [2] ¶ 23–24.) This claim seems to depend on two
related factual circumstances: (1) Defendant Polk issuing Mr. Harper a misconduct report on
13
See id. Attach. 13 at 1 (juror Edwin Marvin told jury pool that he recognized Mr. Harper; juror Nicole
Anderson went to high school with Mr. Harper; juror Nicole Anderson knew one of the state’s witnesses);
id. Attach. 14 at 1 (state presented insufficient evidence on the identity theft charge; state’s evidence
contradicted elements of crime of robbery); id. Attach. 8 at 1–2 (judicial misconduct complaint filed
against trial judge; trial judge was aware of misconduct complaint during trial).
14
The record does not reveal the disposition of Mr. Harper’s ineffective assistance claim, but it is
immaterial to the disposition of his claim against Defendants in this case. Any ineffective assistance by
counsel would not show that Defendants were the cause of Mr. Harper’s injury; rather—as the record
shows—Defendants did not prevent Mr. Harper from communicating the issues he wished to raise on
appeal with counsel, and any subsequent failure on counsel’s part cannot be imputed to them.
16 – OPINION AND ORDER
February 2, 2011, for refusing to return to his cell, resulting in a transfer to the DSU; and (2) the
February 13, 2011, episode, in which Defendants Polk and Patterson left Mr. Harper
unmonitored after allegedly antagonizing and ridiculing him for expressing suicidal thoughts,
thus allowing Mr. Harper the opportunity to attempt suicide by biting his wrist. Id.
The Supreme Court recently recited the truism that “[p]risoners retain the essence of
human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment
prohibition against cruel and unusual punishment.” Brown v. Plata, 131 S.Ct. 1910, 1928 (2011).
The Amendment prohibits more than cruel and unusual sentences; it also prohibits unacceptable
conditions of incarceration. Indeed, “harsh ‘conditions of confinement’ may constitute cruel and
unusual punishment unless such conditions ‘are part of the penalty that criminal offenders pay
for their offenses against society.’” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Rhodes
v. Chapman, 452 U.S. 337, 347 (1981)).
Here, the issue is not whether alleged harsh conditions of confinement were a part of Mr.
Harper’s penalty. The issue is whether those conditions occurred at all. According to the sworn
statements of Defendants Polk and Patterson, neither of them antagonized or ridiculed Mr.
Harper. (Polk Decl. [63] ¶ 10 (“None of that is true.”); Patterson Decl. [64] ¶ 7 (“This did not
happen.”).) Instead, on February 13, 2011, Defendants Polk and Patterson escorted Mr. Harper to
a holding area of the DSU after Mr. Harper expressed an interest in self-harm in order to notify
the Shift Lieutenant. (Polk Decl. [63] ¶¶ 7–9.) Defendant Polk believed that Mr. Harper was
“doing fine” in the holding area, and Defendant Polk did not harbor any animosity towards Mr.
Harper. Id. ¶¶ 9, 11. Further, the notes taken by Dr. Ruthven during his February 17 session with
Mr. Harper reveal that Mr. Harper bit his wrist “so [he] could bleed and let them know how
angry [he] was at [Defendant Polk].” (Ruthven Decl. [66] ¶ 7 & Attach. 2 at 39.)
17 – OPINION AND ORDER
Regarding the initial interaction between Mr. Harper and Defendant Polk on February 2,
the evidence reveals that Defendant Polk issued Mr. Harper a routine misconduct report for
failing to return to his cell. (Polk Decl. [63] ¶ 4; Pl.’s Ex. [2-1] at 8.) The misconduct report led
to Mr. Harper being transferred to the DSU, but the evidence shows that the report was “standard
procedure” and was not issued out of animosity towards Mr. Harper. (Polk Decl. [63] ¶¶ 4–5.)
Beyond the allegations in his complaint, Mr. Harper offers no evidence to contradict the sworn
testimony that neither Defendant Polk nor Defendant Patterson antagonized or ridiculed him, or
to show that they purposefully left him alone in an unmonitored cell in order to exacerbate his
suicidal ideation or prompt him to attempt suicide. Mr. Harper raises no factual issues that could
lead a rational jury to find that Mr. Harper suffered cruel and unusual punishment at the hands of
Defendants Polk and Patterson. Thus, Defendants are entitled to summary judgment on Mr.
Harper’s cruel and unusual punishment claim.
C.
Deliberate Indifference to Serious Medical Needs
Mr. Harper argues that the Defendants were deliberately indifferent to his serious medical
needs when they failed to dispense his daily dose of fluoxetine from February 3 to February 13,
2011. (Compl. [2] ¶ 24.) This failure in turn led to Mr. Harper’s withdrawal from the
antidepressant, which in turn contributed to his suicide attempt. Id.
An Eighth Amendment violation occurs when prison officials are deliberately indifferent
to a prisoner’s serious medical needs. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004). To prevail on an Eighth Amendment deliberate indifference claim, a plaintiff “must
satisfy both the subjective and objective components of a two-part test.” Hallett v. Morgan, 296
F.3d 732, 744 (9th Cir. 2002). The objective component requires a plaintiff to show that a prison
official deprived the plaintiff of the “minimal civilized measures of life’s necessities.” Id.
18 – OPINION AND ORDER
(citation omitted). The subjective component requires a plaintiff to show that a prison official
acted with deliberate indifference. Id.
The objective component requires a demonstration of a deprivation that is “sufficiently
serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294,
298 (1991)). In the context of medical care, “a serious medical need is present whenever the
failure to treat a prisoner’s condition could result in further significant injury or the unnecessary
and wanton infliction of pain.” Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (internal
citations omitted). However, “[b]ecause society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth
Amendment violation only if those needs are serious.” Hudson v. McMillian, 503 U.S. 1, 9
(1992) (internal quotation omitted).
A prison official acts with deliberate indifference, and satisfies the subjective component,
when “the [official] knows of and disregards an excessive risk to inmate health and safety.”
Gibson v. Cnty. of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002). Thus, the official must
“be aware of facts from which the inference could be drawn that a serious risk of harm exists,”
and the official “must also draw the inference.” Farmer, 511 U.S. at 837. “Mere negligence in
diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth
Amendment rights.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (alteration and
citation omitted), overruled on other grounds WMX Technologies, Inc. v. Miller, 104 F.3d 1133
(9th Cir. 1997).
Mr. Harper’s claim fails on both prongs of the deliberate indifference inquiry. First, Mr.
Harper offers no facts that demonstrate a “sufficiently serious” deprivation of medical care, such
that he was subjected to “further significant injury or the unnecessary and wanton infliction of
19 – OPINION AND ORDER
pain.” Clement, 298 F.3d at 904 (internal citations omitted). Mr. Harper contends that
“[w]ithdrawals from not getting his daily antidepressant for more than 10 consecutive days”
contributed to his “complete mental breakdown and suicide attempt on February 13, 2011.”
(Compl. [2] at 9.) Evidence in the record indicates otherwise. First, Dr. Ruthven notes that the
consequences of missing two weeks of fluoxetine “is minimal and would not create suicidal
ideation.” (Ruthven Decl. [66] at ¶ 7.) Further, Mr. Harper told Dr. Ruthven that he had no
perceived benefit from the antidepressant, and Mr. Harper did not mention that he had not been
receiving his fluoxetine. Id. ¶¶ 8, 10. Finally, Mr. Harper told Dr. Ruthven that he bit his wrist
out of anger, not because he was suicidal. Id. Attach. 2 at 39.
Second, Mr. Harper fails to satisfy the subjective component. Indeed, the complaint
seems to allege that all of the individually-named Defendants were deliberately indifferent and
somehow played a role in failing to provide the daily fluoxetine.15 Mr. Harper did send a
communication form to Defendant Lenex on February 9, stating “I’m not getting my weekly
treatment and for whatever reason they stopped me from getting my fluoxotine [sic].” (Etter
Decl. [65] Attach. 4 at 1.) However, there is no evidence that Defendant Lenex was in a position
to correct this problem or that Defendant Lenex knew of a grave risk of harm. In any event, Mr.
Harper began receiving his fluoxetine on February 14, five days later. (Ruthven Decl. [66] ¶ 6.)
Even assuming that Mr. Harper faced an excessive risk of harm from missing approximately two
weeks’ worth of fluoxetine, there is simply no evidence that any of the Defendants knew of yet
disregarded that risk. See Gibson, 290 F.3d at 1187–88. Indeed, with the possible exception of
Defendant Lenex, I find it doubtful that any of the Defendants—correctional officers and the
15
Dr. Ruthven himself is not a defendant, and none of the named defendants are part of the OSP medical
staff.
20 – OPINION AND ORDER
superintendent of the prison—even knew that Mr. Harper was prescribed fluoxetine. In the
absence of any genuine issues of material facts, the Defendants are entitled to summary
judgment on Mr. Harper’s deliberate indifference claim.
CONCLUSION
Because no genuine issues of material fact exist as to whether the Defendants violated
Mr. Harper’s constitutional rights, Mr. Harper’s motion for summary judgment [24] is DENIED
and the Defendants’ motion for summary judgment [61] is GRANTED.
IT IS SO ORDERED.
DATED this 28 day of March, 2014.
/s/Michael W. Mosman
_______________________
MICHAEL W. MOSMAN
United States District Judge
21 – OPINION AND ORDER
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