Ferry et al v. Oregon Department of Corrections et al

Filing 100

ORDER: Granting Motion for Summary Judgment 60 ; Denying Motion for Summary Judgment 75 . The Clerk is directed to enter a judgment dismissing this action. The Court finds that an appeal from this order would be frivolous and not taken in good faith. Therefore, Plaintiff's in forma pauperis status is hereby revoked. Signed on 10/12/2016 by Judge Ann L. Aiken. (cw)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
RICHARD FERRY,
Plaintiff ,

6:15-cv-1136-AA

v.

ORDER

MICHAEL GROWER,
et al.,
Defendants.
AIKEN, District Judge.
Plaintiff
Department

of

is

an

inmate

Corrections

in

the

custody of

( "ODOC") .

After

a

the

Oregon

hearing

and

review in which plaintiff was found to have engaged in sexual
misconduct toward his son during visitation times, plaintiff's
visitation rights with his son were permanently suspended.
Plaintiff
alleging

three

punishment

in

filed
claims

a

complaint
for

violation

under

relief:
of

the

1)

42

U.S. C.

Cruel

Eighth

and

and

§

198 3

unusual

Fourteenth

Amendments; 2) violation of right to familial association and
free

association in violation of the

1 - ORDER

First and Fourteenth

Amendments; 3) denial of substantive due process in violation
of the Fourteenth Amendment.

Amended Complaint (#29)

P. 30-

Plaintiff seeks declaratory and injunctive relief and

32.

damages. Id.
Defendants now move for summary judgment on the following
grounds:

"1)

the statute of limitations has passed;

2)

the

constitutional provisions alleged to have been violated were,
not in fact,
were

not

violated;

involved

in

3) most of the individual defendants
the

alleged

deprivation

of

rights;

4)qualified immunity protects all defendants; 5) the Eleventh
Amendment precludes

'official capacity'

damage claims sought are improper."

claims;

and 6)

the

Defendants Motion for

(#60) p. 1.

Summary Judgment

Plaintiff has also filed a Motion for Summary Judgment
(#75).

The
follows:

facts
1

giving

rise

to

plaintiff's

claims

are

as

Plaintiff was convicted of four counts of sexual

abuse in the first degree and two counts of sexual abuse in
the third degree.
Plaintiff has a minor son

(herein referred to as "R") .

1

Al though plaintiff disagrees with defendants' characterization
of the visiting room behavior that led to his discipline,
suspension of visiting privileges, and ultimately his claims
in this case, the facts set forth herein are supported by
defendants'
submissions
of declarations
and
supporting
evidence.

2 - ORDER

According to plaintiff his son has autism.

On July 28, 2011,

plaintiff was visiting with R in the playroom at the Oregon
State Penitentiary ("OSP") which was against the rules because
R was then ten years old and the playroom had clearly posted
signs

stating that

the

room was

Corrections officer Reaves,
wrestling, tickling,

&

for

children under eight.

observed plaintiff "excessively

inappropriately touching his son."

C/O

Reaves prepared a memo stating that plaintiff was at times
"rolling on top of his son,
him,

& then his son rolled on top of

sitting over I/M Ferry's genitals for long periods of

time." Officer Reaves reported his observation and impression
that

the

extended

physical

contact

was

"excessive

and

inappropriate" to Sgt. Shelia Freeman.
Sgt.

Freeman

reviewed

a

video

tape

of

plaintiff's

visitation with R and observed "a lot of excessive physical
contact"

between

plaintiff

and

R.

She

also

noted

that

plaintiff seemed to stop the behavior when staff approached or
other inmates came into the room.

Sgt. Freeman reported the

incident and her observations to higher officers and placed a
note in the visitor's screen indicating that R would not be
allowed in the playroom because he was over the eight year old
age limit.
Cpl.
conducted

3 - ORDER

Panther viewed the video tape of the incident and
an

investigation,

including

reviewing

19

visits

t

f

I
f

between

plaintiff

plaintiff

engaged

and
in

R.
a

Cpl.

"pattern

Panther
of

concluded

non-consensual

thtaq
sexual

activity for his own stimulation with his autistic child
committing Sexual Assault" and other rule violations.
Executive
reviewed

Assistant
the

video

to

the

and

in

Superintendent
accordance

Michelle

with

her

Dodson

authority

terminated plaintiff's visitations rights with R for one year.
After a disciplinary hearing in October, 2001, plaintiff
was found to have violated three separate misconduct rules and

I

sanctioned to a 180-day suspension fo visitation, 120 days of
disciplinary segregation,

a $200 fine,

and 14 days loss of

privileges. This sanction was approved by Superintendent Premo
and upheld after administrative review.
On December 8,

2011,

Superintendent Premo,

relying on

Oregon Administrative Rule 291-127-0320, ruled that R would be
permanently removed from plaintiff's visiting list. On June
14, 2012, Mr. Grower upheld Superintendent Premo's decision.
Pursuant to Or. Admin. R. 291-127-0330(2), "[t]he decision of
the Assistant Director or designee shall be final."

Visitors

can request reconsideration five years after the permanent

I
I

f
i

I

l

removal.
In November 2011, plaintiff was involved in a

incident

involving the use of force by correctional officers against
plaintiff at a

the Two Rivers Correctional

Institution.

A

I

I
~

4 - ORDER

disciplinary

hearing

decision

staff assault, disrespect,

finding

plaintiff

guilty of

and disobedience of an order was

reached on December 9, 2011, adopted on December 13, 2011 and
upheld on review on May 11, 2012.
In January 2014,

plaintiff was tried for sexual abuse

arising out of the activities in the OSP playroom in 2011, and
found not guilty.
On March 20, 2014, in response to a request by plaintiff
to reinstate visitation, Superintendent Premo referred back to
his December 8,

2011 visitation review and

reiterated his

decision to uphold the permanent removal of R from plaintiff's
visitation

list.

Mr.

Grower

also

responded to plaintiff's

request by referring plaintiff to Or. Admin. R. 291-127-0320,
which provides that only the visitor can request review.
On February 6, 2015, at plaintiff's request,

Inspector

General Williamson considered the OSP discipline in light of
the 2014 trial. After personally listening to the entire trial
proceeding,
that

the

hearing

Inspector General Williamson was not persuaded

"interests
or

vacating

of

justice"

the

required

discipline

and

ordering

a

new

discipline

was

affirmed.
Right

to Visitation:

It

is well

settled that

absolute right to prison visitation.
F.3d 1196 at 1204 n.

5 - ORDER

4

(providing a

there

is

no

See, Dunn v. Castro, 621

lengthy list of court

decisions upholding denial of visitation to prisoners).
(9th Cir. 2010) Inmates have no constitutional right of "access
to a particular visitor." Kentucky Dep't of Corrections v.
Thompson,

490 U.S.

454,

461

(1989); Keenan v. Hall,

83 F.3d

10 8 3 10 9 2 ( 9th Cir . 19 9 6 ) . 2
In Overton v.

Bazzetta,

539 U.S.

126,

131

(2003),

the

United States Supreme Court addressed incarceration and what
it

necessarily does

Michigan regulation
visitors,
list,

to

inmates'

rights.

At

limiting certain types

issue

was

and numbers

a
of

requiring visitors to be on an approved visitors

and

suspending

all

visits

(except

for

clergy

and

attorneys) for two years for inmates who commit multiple rule
violations.

The

Court

violate the First,
controls

the

ruled

that

the

regulation did not

Eighth, or Fourteenth Amendment.

outcome

of

this

case.

The

Overton

withdrawal

of

plaintiff's visitation privileges in this case was reasonable
and justified under the circumstances and did not violate
plaintiff's constitutional rights.
Statute of limitations:
specific

statute

Therefore,

of

federal

42 U.S.C.

limitations
courts

§

for

"borrow"

1983 does not contain a
constitutional
the

state

torts.

statute

of

2

Inmates also have no right to contact visitation. See, Barnett
v. Centoni, 31 F. 3d 813, 817 (9th Cir. 1994) (per curiam);
Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993); Toussaint
v. McCarthy, 801 F.2d 1080, 1113-14 (9th Cir. 1986).
6 - ORDER

limitations
Kato,
261,

in 42 U.S.C.

549 U.S.
266

384,

387

1983 actions.

§

(2007);

See,

Wallace v.

Wilson v. Garcia,
169 F.3d 608,

(1985); Silva v. Crain,

471 U.S.
(9th Cir.

610

1999); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991).
In

Oregon,

the

two

personal injury actions,

year

statute

O.R.S.

rights actions under 42 U.S.C.

§

of

12 .110 (1)

limitations

for

applies to civil

1983. Sain v. City of Bend,

309 F.3d 1134, 1139 (9th Cir. 2002); Cooper v. City of Ashland,
871 F.2d 104, 105

(9th Cir.

1988); Davis v. Harvey,

789 F.2d

1332 (9th Cir. 1986).
Federal law determines when a cause of action accrues and
the statute of limitations begins to run on a
W 11 ace v . Kato,
a

5 4 9 U . S . at 3 8 8 .

§

1983 claim.

A federal claim accrues

when the plaintiff know or has reason to know of the injury
which is the basis of the action. Pouncil v. Tilton, 704 F.3d
568

also,

(9th Cir.

2012),

cert denied,

134 S.Ct.

76

(1213);

see

Morales v. City of Los Angeles, 214 F.3d 1151, 1154 (9th

Cir. 2000); Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760
(9th Cir. 1991); DeAnza Properties X, Ltd. v. County of Santa
Cruz, 936 F.2d 1084, 1086 (9th Cir. 1991); Vaughan, supra, 927
F . 2 d 4 8 6 , 4 8 0 ( 9th Cir . 1 9 91 ) .
In

addition,

federal

law

controls

when

an

action

"commences" for the purposes of the statute of limitations.

Sain, supra at 1136.

7 - ORDER

Under FRCP 3, a 1983 action commences in

I

I
.

federal

district

court

for

purposes

limitations when the complaint is filed.

of

the

statute

of

Id. at 1138.

The key events giving rise to plaintiff's claims in this
case are as follows:

* July 2011: initial termination of visitation.

* August 2011: Misconduct report.
* October 2011: Disciplinary Hearing regarding sexual

I

assault and other violations at OSP.

* December 2011: Permanent removal of R from visiting
list

* Disciplinary Hearing regarding staff assault and other
violations at TRCI.

* May 2012: Decision upholding discipline at OSP.
May 2012: Decision upholding discipline at TRCI.

*

May

2012:

Review

of

Intensive

Management

Unit

Placement.

* June 2012: Decision upholding permanent removal of R
from plaintiff's visiting list.
I find that plaintiff's claims accrued at the time the
final decisions regarding his discipline and visitation were
made in 2012, and the statute of limitations began to run at
that

time.

Plaintiff

filed

this

action on

June

2 3,

2 015.

Accordingly, plaintiff's claims are time barred.
It

is

8 - ORDER

irrelevant

that

plaintiff

requested

that

his

I

discipline and visiting rights be reconsidered in 2014. Knox
v. Davis, 260 F.3d 1009 (9th Cir. 2001); see also, Pouncil v.
Tilton, supra, at 581

(questioning Knox) . 3

Based on the foregoing,

I find that defendants' alleged

conduct did not violate plaintiff Constitutional rights.

I

further find that assuming arguendo plaintiff's rights were
violated, his claims are barred by the statute of limitations.
Therefore, defendants are entitled to judgment as a matter of
law.
I further find with regard to defendants' other arguments
as follows:
Eleventh Amendment:

To the

extent plaintiff seeks

to hold

defendants liable for damages in their official capacities,
plaintiff's

claims

are

barred

by

the

Eleventh

Amendment.

Brown v. Oregon Department of Corrections, 751 F.3d 983,

989

(9th Cir. 2014).
Personal involvement: The United States Supreme Court has held
that state officials are not liable under
play

an

violation.

affirmative
Rizzo v.

part
Goode,

in

§

the

alleged

423 U.S.

362,

1983 unless they
constitutional
377

(1976).

In

3

Moreover,
the
final
decision on visitation cannot be
reconsidered for five years. Or. Admin. R. 291-127-0320(4).
Plaintiff alleges that he will be released in 2016, so it is
probable that the issue will be rendered moot before five
years has elapsed.
9 - ORDER

addition,

"[a]

conclusions,

plaintiff

that

show

must

that

allege

an

facts,

individual

not

was

personally

involved in the deprivation of his civil rights.
under

§

Liability

1983 must be based on the personal involvement of the
Barren v.

defendant."

Harrington,

152 F.3d 1193,

Cir. 1998), cert. denied, 525 U.S. 1154
The

simply

crux of plaintiff's

claims

1194

(9th

are

the

(1999).

in this

case

decisions regarding whether plaintiff's visitation with his
son would be

The

permanently discontinued.

exhibits

and

declarations submitted in support of defendants' motion for
summary judgment establish that Officer Reves, Sgt. Freeman,
Cpl.

Panther,

Ms.

Dodson,

Ms.

Parker,

Mr.

Williamson,

Mr.

Belleque and Ms. Barton had no responsibility in making the
OSP discipline or visitations decisions.
defendants

may

have

reported,

investigated,

Al though these
and

reviewed

evidence, the ultimate discipline and decision to permanently
to remove plaintiff's son from plaintiff's visiting list were
made by defendants Premo and Grower.
There is no remaining genuine issue of material fact that
the other individuals named as defendants in this case had
minimal or no involvement in the ultimate decisions giving
rise to plaintiff's claims.

Therefore, they are entitled to

judgment as a matter of law.

See, Ballantyne v. Taylor, 2015

WL 9581811 at *3 (D. Or. Dec. 29, 2015).

10 - ORDER

Qualified

immunity:

Qualified

immunity

shields

government

officials from liability for damages when they make decisions
that,

even

if

misapprehend
confronted.

constitutionally

the

law

Brosseau v.

governing
Haugen,

deficient,
the

circumstances

543 U.S.

Harlow v. Fitzgerald, 457 U.S. 800

reasonably

194,

202

they

(2004);

(1982).

While public officials are thus generally protected from
civil liability under the doctrine,

the defense will

fail

where their actions violate law that is clearly established,
because "a reasonably competent public official should know
the law governing his conduct." Id.

at 819.

"The qualified

immunity standard 'gives ample room for mistaken judgments' by
protecting

'all

but

the

plainly

incompetent

or

those

who

knowingly violate the law .. '" Hunter v. Bryant, 502 U.S. 224
(1991)

(quoting Malley v. Briggs, 475 U.S. 335341 (1986). An

official should be denied qualified immunity only when "[t]he
contours of the right are sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Until recently courts considering an official claim of
qualified immunity followed the two-step protocol established
in Saucier v. Katz,
court

533 U.S.

194

(2001), which required the

first to determine whether the defendant violated a

constitutional right and then to determine whether that right

11 - ORDER

was clearly established.

See,

223

Saucier in

(2009)

(overturning

Pearson v.

part).

In

Pearson

v.

the Supreme Court reversed this earlier rule and

Callahan,

gave courts discretion to grant
basis

555 U.S.

Callahan,

of

the

"clearly

deciding in the first
violated.

qualified immunity on the

established"

prong

alone,

without

instance whether any right had been

Thus, we may grant qualified immunity if 'the

Id.

facts that a plaintiff has alleged or shown [do not] make out
a violation of a constitutional right'
issue

was

[not]

defendant's

clearly

alleged

established

conduct.'

Id.

at

or if
at

the

816,

'the right at
time
818

of

the

(internal

citations omitted). See also, James v. Rowlands, 606 F.3d 646
(9th Cir. 2010)
In

this

case,

I

find

that

defendants

response

to

plaintiff's conduct did not violate any of plaintiff's clearly
established constitutional rights. All of defendants' alleged
conduct at issue in this case was consistent with a reasonable
understanding
defendant

of

acted

the

law

on

prisoner

in

accordance

with

visi ta ti on
the

and

each

administrative

regulations and in a way that a reasonable corrections officer
would act under the circumstances.

Therefore,

even if some

minimal encroachment on plaintiff's rights did arguably occur,
defendants are qualifiedly immune from liability for damages
because their response was a reasonable interpretation of the

12 - ORDER

law governing the circumstances they confronted. Brosseau, 543
U.S. 194, 202; Harlow, 457 U.S. 800.
Damages:

Pursuant

to

the

PLRA,

42

U.S.C.

§

1997e(e),

"no

Federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury." See generally, Oliver v. Keller,
289 F.3d 623

(9th Cir.

2002)

(discussing extent of physical

injury necessary to sustain a claim).
In

this

case,

plaintiff

is

suing

for

denial

of

his

visitation rights and is not entitled to damages for mental
and

emotional

distress.

In

addition,

plaintiff

has

not

submitted any evidence of economic damages, and has presented
no evidence that would justify an award of punitive damages.
Conclusion:

Based on the foregoing, I find that there are

no genuine issues of material fact remaining in this case and
that defendants are entitled to judgment as a matter of law.
Defendants' Motion for Summary Judgment (#60) is allowed.
Plaintiff's Motion for Summary Judgment (#75) is denied.
The Clerk is directed to enter a judgment dismissing this
action.
I find that an appeal from this order would be frivolous

Ill//
//Ill
13 - ORDER

and not taken in good faith.

Therefore, plaintiff's in forrna

pauperis status is hereby revoked.
DATED this {'}-. day of

Ann Aiken
United States District Judge

I

14 - ORDER