United States District Court, D. Oregon
PHILLIP C. COLLICOTT, Plaintiff,
SNAKE RIVER DEPARTMENT OF CORRECTIONS ADMINISTRATION; SUP. NOOTH, MARK; and OFFICER FRANK SERRANO, Defendants.
PHILLIP CURTIS COLLICOTT #18822244, Snake River Correctional Institution, Ontario, OR, Plaintiff, Pro Se.
ELLEN ROSENBLUM, Attorney General, SHANNON M. VINCENT, Assistant Attorney General, Salem, OR, Attorneys for Defendants.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendants' Motion (#41) for Summary Judgment. For the reasons that follow, the Court GRANTS Defendants' Motion.
Plaintiff Phillip C. Collicott is an inmate at Snake River Correctional Institution (SRCI).
On November 12, 2011, an SRCI correctional officer searched Plaintiff's cell and found a loose razor blade in Plaintiff's hygiene bag, a broken pencil sharpener with its blade missing, and a roll of string not in its original form. The officer also found state-issued "thermals, " shirts, and towels that were torn and tucked under the seat of the stool at the desk in Plaintiff's cell.
As a result of the search, Plaintiff was provided on November 13, 2011, with a Misconduct Report charging him with violation of Oregon Department of Corrections (ODOC) Rules 1.05 (Property 1), 4.01 (Disobedience of an Order 1), 1.11 (Contraband 2), and 1.06 (Property 2). The Misconduct Report contained the following description of Plaintiff's violations:
On November 12, 2011 at approximately 6:00pm, I was conducting a cell search in cell 27 in Housing Unit 3H. During the search, I found a loose razor blade that appeared to be removed from a pencil sharpener above the desk marked "A", which is assigned to Inmate Collicott S1D#1822244. The blade was found inside a hygiene bag. Along with the blade, I found a roll of string that was not in it's [ sic ] original form and the pencil sharpener with the blade removed from it.
Later on in the search, I found multiple state issued items that were torn and destroyed. These items were thermals, shirts and towels. The shirts were found tucked under the seat of the stool at desk "A" and the thermals and towels were found in drawer marked "A", which is assigned to Inmate Collicott SID# 1822244. All of these items were state issued and the damaged property was confiscated.
Decl. of Frank Serrano, Ex. 2 at 5. On November 13, 2011, Plaintiff was also provided with a Notice of Hearing, Notice of Inmate Rights in a Hearing, and the ODOC Rules of Prohibited Conduct in preparation for a hearing on Plaintiff's misconduct.
On November 22, 2011, Hearings Officer Frank Serrano held a disciplinary hearing on Plaintiff's Misconduct Report. At the hearing Plaintiff acknowledged receiving the Notice of Hearing, Notice of Inmate Rights in a Hearing, and the ODOC Rules of Prohibited Conduct. Plaintiff, however, advised Officer Serrano that he did not understand his rights or the rules violations with which he was charged. Serrano Decl., Ex. 3 at 1-2. Accordingly, Officer Serrano explained to Plaintiff the hearings procedure and Plaintiff's rights as follows:
During this hearing, I'm going to explain to you what you've been charged with, then make sure you understand each of the alleged rule violations. I'm going to present you with all the evidence that's been presented to me thus far, allow you to present your evidence, make a statement. During the hearing, you can request witnesses or investigation if the information sought either absolves you of wrongdoing or substantially mitigates the rule violations against you. If it does neither of those two, I may deny your request. Ultimately, I'll make a finding in this case and find whether or not you violated the rule Or to violate the rule and there's a number of ways do so. And I'll explain to those if I do, obviously, make that decision. If I find you in violation, I'm going to recommend sanctions in accordance with the grid, major violation grid, based on your last two years of... of activity. Ultimately, you can request a review of my findings through the Superintendent's office, or functional unit Manager's office.
Serrano Decl., Ex. 3 at 2. Officer Serrano explained the charged violations against Plaintiff as follows:
Property 1 has to do with destruction of property, misuse of property, tampering with, defacing.
* * *
[Disobedience of an Order 1 is] when you overtly refuse to comply with [a] valid directive, whether it's written or verbal.
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[Contraband 2 is] [p]ossessing any contraband which creates a threat to the safety, security, orderly operation of the facility.
Serrano Decl., Ex. 3 at 3. Plaintiff stated he understood Property 2,  and Serrano did not give Plaintiff any further explanation of that violation. Officer Serrano read the Misconduct Report to Plaintiff on the record, and Plaintiff testified as to why he had in his cell the items noted in the Misconduct Report.
With respect to the state-issued thermals, shirts, and towels, Plaintiff testified they were cleaning rags issued to inmates in the housing unit every morning. Plaintiff also testified he did not speak to the correctional officer who conducted the search so he was unable to explain to the officer that they were cleaning rags. Officer Serrano concluded there was insufficient evidence to support violations of Rules 1.11 (contraband 2), 4.01 (Disobedience of an Order 1), and 1.06 (Property 2). Officer Serrano, therefore, dismissed the violations of Rules 1.11 and 4.01 on the ground that there was insufficient evidence that Plaintiff possessed "any contraband 2" items or disobeyed any order. Serrano Decl., Ex. 2 at 1. Officer Serrano also dismissed the violation of Rule 1.06 (Property 2) without prejudice and instructed the correctional officer to resubmit a misconduct report if an investigation established the rags were made from items issued to Plaintiff.
With respect to the razor blade, Officer Serrano and Plaintiff engaged in the following exchange at the hearing:
MR. SERRANO: Regarding the blade, what's the story?
MR COLLICOTT: The blade? That pencil sharpener, it was broken, but it wasn't... it wasn't apart. In fact, I have...
MR. SERRANO: Why did the officer find it apart?
MR. COLLICOTT: I don't know why he found it apart. But this, when I came back, I found this in my room and I believe this is what holds it together.
MR. SERRANO: It could be. That's my question, is why was it apart? You don't know why?
MR. COLLICOTT: Well, other than it being a piece of crap and probably breaking?
MR. SERRANO: So, the only question would be is why wouldn't you turn it in if it's broken? [Inaudible] a correctional facility, you have a loose blade, this can be used as weapons or a [inaudible].
MR. COLLICOTT: I didn't... didn't think about that through [ sic ], you know? That's... I have $50.00 worth of pencils. I mean, ...