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Harper v. Premo

United States District Court, D. Oregon, Eugene Division

March 28, 2014

DANIEL ZACHARY HARPER, Plaintiff,
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.

OPINION AND ORDER

MICHAEL W. MOSMAN, District Judge.

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 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 fluoxetine[1] 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 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. XXX-XXX-XXXX (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.)

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.

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 "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 ...


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