Argued and submitted on October 09, 2012.
Marion County Circuit Court 09C11417 Joseph C. Guimond, Judge.
Christie S. Totten argued the cause for appellant. With her on the briefs was Davis Wright Tremaine LLP.
Christina M. Hutchins, Senior Assistant Attorney General, argued the cause for the Oregon respondents. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
John D. Hadden, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma, filed the brief for the Oklahoma respondents.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
Plaintiff was convicted and sentenced in Oregon, but was later transferred to an Oklahoma prison pursuant to the Interstate Corrections Compact (ICC) Act, ORS 421.245, where he alleges he was mistreated. Plaintiff filed a lengthy complaint against the Oregon Department of Corrections (Oregon DOC) and some of its employees and the Oklahoma Department of Corrections (Oklahoma DOC) and some of its employees, in total naming more than three dozen defendants. The trial court resolved the claims on motions to dismiss under ORCP 21 A. The Oklahoma defendants sought dismissal under ORCP 21 A(2) on the ground that Oregon courts lacked personal jurisdiction over them and under ORCP 21 A(8) on the ground that plaintiff failed to state a claim against them. The Oregon defendants moved to dismiss on the ground that Oregon courts lacked personal jurisdiction over the Oklahoma defendants, ORCP 21 A(2), and that plaintiff failed to state a claim against them, ORCP 21 A(8). The trial court concluded that it lacked personal jurisdiction over the Oklahoma defendants and that plaintiff had failed to state claims against the Oregon defendants. The court dismissed all claims with prejudice and denied plaintiff's request for leave to file an amended complaint.
On appeal, plaintiff asserts that the trial court wrongly dismissed three of his claims against certain Oklahoma and Oregon defendants: one claim alleges violations of his constitutional rights pursuant to 42 USC section 1983, and the other two claims allege negligence related to threats to his safety and interference with his mail from, and representation by, his Oregon attorney. Plaintiff also challenges the trial court's denial of leave to replead. For the following reasons, we reverse the dismissal of the section 1983 claim as to defendants Estes and Sirmons of Oklahoma and Potts and Ward of Oregon; we reverse the dismissal of the negligence claims against Potts, Ward, and Oregon DOC; and we remand for further proceedings.
A. Factual Background
When reviewing a trial court's ruling on a motion to dismiss for failure to state a claim, we assume the truth of all allegations in plaintiff's pleadings and view all reasonable inferences in the light most favorable to plaintiff. Strizver v. Wilsey, 210 Or.App. 33, 35, 150 P.3d 10 (2006), rev den, 342 Or 474 (2007). Plaintiff was convicted in Oregon and sentenced to the custody of Oregon DOC. In 2007, he was moved to the Oklahoma State Penitentiary pursuant to the ICC, a compact that generally permits states to enter into contracts with other party states for the incarceration of the sending state's inmates. While at the Oklahoma prison, plaintiff made several written requests to have his treatment and cell conditions improved. Specifically, he complained that he was not given showers, "yard" time, and medical attention, and he requested that he be moved to a different cell. Shortly thereafter, plaintiff filed grievances related to his custody and then wrote letters to defendant Sirmons, who was then the warden of the Oklahoma State Penitentiary, asking for a response to his grievances.
While plaintiff was incarcerated in Oklahoma, Simmons, an Oregon attorney, represented plaintiff in several proceedings in Oregon, including his post-conviction relief claim before the Klamath County Circuit Court, his aggravated murder review hearing before the Oregon Board of Parole and Post-Prison Supervision, his petition for executive clemency to the Governor of Oregon, and the current action. Plaintiff regularly received letters and telephone calls from Simmons arranged though Oklahoma DOC. Simmons had verified for Oregon DOC that he was a licensed attorney who represented plaintiff on various legal matters.
In August 2008, Simmons sent plaintiff a package marked "LEGAL MAIL" and that clearly indicated that it was from his law office in Oregon. Defendant Estes, a case manager at the prison, opened the package, read the mail, which allegedly contained attorney-client privileged materials, and said, "This doesn't look legal. I'm confiscating it." After Estes opened the mail, plaintiff explained that any mail sent from his Oregon attorney was related to a lawsuit he was preparing to file in Oregon against Oklahoma DOC and its officials. Plaintiff later wrote to Estes and Sirmons, requesting that they return his legal mail and explain the reasons for its confiscation. After receiving no response, plaintiff filed grievances with both Oklahoma DOC and with defendant Potts, the Oregon Interstate Compact Operations employee who was responsible for administering the ICC between Oregon and Oklahoma. In response to his grievances, Potts encouraged plaintiff to use Oklahoma's grievance procedures instead of Oregon's grievance procedures.
Sirmons then sent a letter to Simmons, requesting information about his attorney-client communications with plaintiff. Specifically, Sirmons asked Simmons to address three issues: (1) "How are the enclosures that were sent considered Legal mail?" (2) "Documentation must be provided showing that you are [plaintiff's] attorney, such as [an] employment/representation contract." (3) "Documentation must be provided stating that you have a license to practice in Oklahoma."
Simmons responded to the request with a 10-page letter and 29 pages of attachments. Sirmons then sent another letter to Simmons stating that he had not adequately explained how the materials in the package Simmons had sent to plaintiff in August constituted "legal mail" and returned the package to Simmons. As a result, plaintiff never received or viewed the materials Simmons had sent him.
At some point, an Oklahoma corrections officer told a number of prisoners who belonged to the United Aryan Brotherhood (UAB) that plaintiff was a "rat" and was transferred to Oklahoma because he was an informant who provided information against "White boys" at an Oregon prison. Afterward, plaintiff was harassed by and began receiving death threats from other inmates, including oral threats and threatening letters. Plaintiff received information that four Oklahoma officers plotted with UAB members to have plaintiff killed by having the officers open the prison cell doors and allowing the inmates an opportunity to attack plaintiff. Plaintiff also received two notes from an inmate named "Fester, " who was a UAB member, threatening his life and signing the notes with the symbol for UAB.
After plaintiff received the threatening notes from Fester, he wrote to defendant Ward, who was then the High Risk Population Manager for Oregon DOC, explaining that his life was in danger, and sent Ward the threatening communications he had received. Oregon prison officials provided copies of those notes to Oklahoma prison officials. Plaintiff also asked Ward for a transfer to another prison because he believed that his life was in danger and offered to give Ward the names of staff, inmates, and others who would confirm the activities of UAB gang members. Plaintiff also spoke to Oklahoma DOC Internal Affairs and asked the Internal Affairs officers to move him to either the Joseph Harp Correctional Institution or the Lexington Correctional Center to protect ...