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Banks v. State

United States District Court, D. Oregon

May 12, 2014

ROBERT LEE BANKS, Plaintiff,
v.
STATE OF OREGON, et al., Defendants.

ORDER

MICHAEL McSHANE, District Judge.

Plaintiff, an inmate in the custody of the Oregon Department of Corrections, filed a complaint under 42 U.S.C. § 1983 alleging that defendants violated his First Amendment right of freedom of speech and subjected him to retaliation when they placed him in the Disciplinary Segregation Unit (DSU) for writing a grievance against Sergeant Jose Olvera. In his second claim, plaintiff alleges that defendants violated his Eighth Amendment right to be free from excessive fines and free from cruel and unusual punishment when he was subjected to 12 days in DSU before he was given a misconduct hearing. In his third claim, plaintiff alleges that defendants violated his Fourteenth Amendment right to due process when he was sent to DSU before he was afforded a hearing to address his misconduct charges. Plaintiff also alleges several pages of "additional claims of complaint." As discussed below, these allegation do no contain any discernable claim. Plaintiff seeks damages and equitable relief. Defendants now move for summary judgment (#67).

The relevant facts are as follows. After plaintiff's involvement in a disturbance with another inmate, defendant Olvera issued plaintiff a misconduct report for Disobedience of an Order I. After a disciplinary hearing on February 28, 2012, Hearings Officer James Deacon concluded that the evidence did not support a finding of Disobedience of an Order I, and found plaintiff in violation of Disobedience of an Order II and imposed a sanction of seven days loss of privileges and a $50.00 fine. The sanction was suspended until March 29, 2012 provided that plaintiff had no further violations.. On March 7, 2012, defendant Lytle submitted a misconduct report charging plaintiff with Extortion I, False Information to Employees I, and Disobedience of an Order II. After a disciplinary hearing on March 12, 2012, Hearings Officer Deacon found plaintiff in violation of False information to Employees I and dismissed the remaining charges due to insufficient evidence. Plaintiff was sanctioned to seven days loss of privileges and the $50.00 fine from the previous sanction was imposed.

Eleventh Amendment: Plaintiff names the State of Oregon and "ODOC" as defendants in the caption of his complaint.

A state or its officials or agencies may not be sued by private individuals in federal court unless the state has unequivocally consented to that action, or Congress has unequivocally expressed its intent under the Fourteenth Amendment to waive the immunity of the States. Board of Trustees of University of Alabama v. Garrett , 531 U.S. 356 (2001); Seminole Tribe of Florida v. Florida , 517 U.S. 44, 54 (1996); see also, Quern v. Jordan , 440 U.S. 332 (1979); Edleman v. Jordan , 415 U.S. 651, 673 (1984); Pennhurst State School and Hospital v. Halderman , 465 U.S. 89 (1984). The Eleventh Amendment otherwise bars any such action regardless of the nature of the relief sought. Cory v. White , 457 U.S. 85 (1982); Brooks v. Sulpher Springs Valley Elec. Co-Op , 951 F.2d 1050, 1053 (9th Cir. 1991). Individual defendants share in the Eleventh Amendment immunity afforded states and state agencies where the indivictuals are sued in their official capacities because such suits "are, in essence, actions against the government entity of which the officer is an agent." Mitchell v. Los Angeles Community College Dist. , 861 F.2d 198, 201-02 (9th Cir. 1999). Under the "arm of the state" doctrine, a state entity and its officers in their official capacities share the state's sovereign immunity because "the state is the real party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials [or state entities] are nominal defendants.'" Durning v. Citibank, N.A. , 950 F.2d 1419, 1423 (9th Cir. 1991) ( quoting Ford Mtor Co. V. Dep't of Treasury, 323 U.S. 459, 464 (1945)). A suit against a state officer in his official capacity is effectively considered a suit against the official's office, and therefore, it "is no different than a suit against the State itself." Will v. Michigan Dep't of State Police , 419 U.S. 58, 71 (1989).

Thus, plaintiff's claims against the State of Oregon and the Oregon Department of Corrections are barred by the Eleventh Arnendment.[1] In addition, to the extent that plaintiff seeks to hold the individual defendants liable in their official capacities, [2] plaintiff's claims are barred by the Eleventh Amendment.

Plaintiff does not specifically invoke ancillary jurisdiction or allege any specific tort claims arising under the laws of Oregon. However, plaintiff's claim for relief indicates that he is seeking damages for "intentional infliction of emotional distress, reckless infliction of emotional distress (and) defamation." Complaint (#6) p. 6.

If plaintiff's allegations in this regard are construed as attempting to allege claims under the laws of the state of Oregon, such claims are barred by the Eleventh Amendment because the individually named defendants must be dismissed from plaintiff's state law claim and the State of Oregon substituted in their place. ORS 30.265(1) (the "sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties * * * shall be an action against the public body only."); Demaray v. Dept. of Environmental Quality , 127 Or.App. 494, 502 (1994). Upon substitution of the State of Oregon as the sole defendant to the state claims, the claims must be dismissed pursuant to the Eleventh Amendment.[3]

Respondeat superior: Plaintiff alleges that defendant Franke is "legally responsible for the operation of Two Rivers Correctional Institute (sic) (TRCI), and for the welfare of all the inmates in that prison." Complaint (#6) "additional supporting facts p. 1-2. Plaintiff apparently seeks to hold defendant Franke liable under a theory of respondeat superior.

It is well settled that respondeat superior is not a proper basis for liability under 42 U.S.C. § 1983. Monell v. Dept. of Social Services of City of New York , 436 U.S. 658, 691-694 (1978); Rizzo v. Goode , 423 U.S. 362, 375-76 (1976); King v. Atiyeh , 814 F.2d 565, 568 (9th Cir. 1987). To establish a § 1983 claim against an individual defendant, a plaintiff must establish personal participation by the defendant in the alleged constitutional deprivation. Ashcroft v. Iqbal , 129 S.Ct. 1937 (2009).

A "supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989), citing Ybarra v. Reno Thunderbird Mobile Home Village , 723 F.2d 675, 680-81 (9th Cir. 1984). See also, Shaw v. Stroud , 13 F.3d 791, 799 (4th Cir. 1994) (supervisory liability only when a) actual or constructive knowledge of a pervasive and unreasonable risk of injury; b) deliberate indifference to or tacit authorization of the practice; and c) an affirmative causal link between inaction and the injury). Supervisory officials may also be liable if they "implement a policy so deficient that the policy itself is a repudiation of constitutional rights' and is the moving force of the constitutional violation.'" Redman v. County of San Diego , 924 F.2d 1435, 1446 (9th Cir. 1991), cert. denied, 112 S.Ct. 972 (1992).

Plaintiff has not alleged any facts that would establish defendant Franke personally participated in the alleged retaliation or excessive and/or improper disciplinary sanction he complains of or any facts that would subject defendant to liability.

Retaliation: Plaintiff alleges that defendants Olvera and Lytle retaliated against him by sending plaintiff to DSU for exercising his First Amendment rights. Specifically, plaintiff alleges that defendants retaliated against plaintiff for filing a grievance against defendant Olvera, by filing a false misconduct report which caused plaintiff to be placed in DSU.

A properly pleaded complaint which alleges retaliation for the exercise of a constitutional right states a cause of action under 42 U.S.C. § 1983. Mt. Healthy City Bd. Of Ed. V. Doyle, 429 U.S. 274 (1977); McDonald v. Hall , 610 F.2d 16 (1st Cir. 1979); Bruise v. Hudkins , 584 F.2d 223 (7th Cir. 1978). The claim must include an allegation that the plaintiff engaged in conduct that is constitutionally protected and ...


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