United States District Court, D. Oregon
REPORT AND RECOMMENDATION
MARK D. CLARKE, Magistrate Judge.
Plaintiff, formerly an inmate in the custody of the Oregon Department of Corrections, filed an Amended Complaint (#32) alleging claims under the Eighth Amendment, the Ninth Amendment, the Oregon State Constitution, the Prison Rape Elimination Act (PREA), various ODOC polices and ORS. 71.2030. Plaintiff alleges that his rights were violated when he was allegedly "touched inappropriately" by defendant Philip Jackson. Plaintiff alleges that he suffered "tremendous mental anguish over this incident" and was fired from his job and transferred to a different institution because he filed grievances about defendant Jackson's conduct. Complaint (#2) p. 4-5.
Defendants now move for summary judgment (#42).
The relevant facts are as follows. On February 22, 2012, plaintiff was an inmate in the custody of the Oregon Department of Corrections working in the Physical plant at the Warner Creek Correctional Facility (WCCF). Defendant Jackson was employed by the ODOC as a Facilities Energy Technician supervising inmate work crews. On that date, defendant Jackson went to the Physical Plant tool room to get a tool bag. The door to the tool room is a Dutch door, and the top was open. Plaintiff was blocking the door by leaning over the closed bottom half of the door talking to an inmate inside the tool room. Jackson approached plaintiff from behind, told plaintiff that plaintiff needed to move, and simultaneously tapped or "patted" plaintiff on the right buttocks. Plaintiff moved and Jackson entered the room to retrieve the tool bag. Plaintiff told Jackson that the contact was "inappropriate."
Ray Wing, who was employed by ODOC as a Facilities Maintenance Specialist was in the tool room when the incident occurred and saw Jackson tap plaintiff and heard plaintiff say "Well that was inappropriate." Mr. Jackson apologized and said "I didn't look where I was tapping." Plaintiff replied "Well maybe you should." Declaration of Ray Wing (#45) p. 2
Plaintiff later asked whet he should do about what happened. Wing advised plaintiff: "If you think it's a problem, you need to file a grievance." Plaintiff expressed some concern to Wing that there would be repercussions if he filed a grievance, but Wing assured plaintiff there would not be any. Wing did not believe that Jackson touched plaintiff in a sexual manner. Id.
On February 23, 2012, plaintiff filed a grievance concerning the incident with defendant Jackson which was investigated by Lieutenant Helling, PREA liason for WCCF. Lt. Helling reported his findings to defendant Hammonds.
Defendant David Hammonds was the acting Physical Plant Manager and a member of the Sexual Assault Response Team for WCCF. On February 27, 2012, Hammonds was informed of a possible Prison Rape Elimination Act (PREA) incident involving plaintiff. Hammonds reviewed the incident and concluded that it was a "training issue."
On February 28, 2012, plaintiff reported to his work assignment at the Physical Plant and then requested to go to the medical department because he was sick. Plaintiff complained that he could not work with defendant Jackson and was released from the Physical Plant his duties to return to his housing unit.
Subsequently, Hammonds met with plaintiff. According to Hammonds, plaintiff told Hammonds the he (plaintiff) could not work around Jackson unless Hammonds could instruct Jackson not to look at him (plaintiff) or pat him down. Hammonds explained to plaintiff that this was not possible, because each Physical Plant staff member is required to supervise, direct work, and search all inmates who work in the Physical Plant. Declaration of David Hammonds (#48) p. 3.
Hammonds told plaintiff that if plaintiff did not feel comfortable working around Jackson, Hammonds would remove plaintiff from his inmate work assignment and notify his counselor. Plaintiff was removed from his work assignment at the physical Plant. Plaintiff's removal from the Physical Plant inmate work assignment did not include any form of "daily fail, " sanction or disciplinary action. Id.
Plaintiff disputes Hammonds account of their conversation and contends that he told Hammonds that:
I didn't want to lose my job and there must be some solution to this problem. I told David Hammonds that there are three guards that perform pat downs at the end of the day and I could get into a line that Mr. Jackson was not performing pat downs. I told David Hammonds that I would not even look at Phillip Jackson. David Hammonds has twisted my words to cover up this incident.
Memorandum in Support (#55) p. 4.
This slightly different characterization of the conversation between plaintiff and Hammonds does not constitute a disputed issue of material fact for purposes of summary judgment because what was said is irrelevant to plaintiff's claim that he was "fired" for filing a grievances. Amended Complaint (#32) p. 5. Hammonds states that the removal of plaintiff from his inmate work assignment "was done in effort to not cause plaintiff further discomfort in his eyes." Declaration of David Hammonds (#48) P. 3.
On February 28, 2012, and again on March 4, 2012, plaintiff filed grievances alleging that defendant Hammons improperly removed from his work assignment at the Physical Plant.
On March 14, 2012, plaintiff was transferred from WCCF to the Oregon State Correctional Institution. On March 15, 2012, plaintiff was transferred to the Columbia Correctional Institution where he remained until he was paroled on November 30, 2012. ...