United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
Plaintiff, Michael James Evans ("Evans"), is an inmate with the Oregon Department of Corrections ("ODOC"), currently housed at Two Rivers Correctional Institution ("TRCI") in Umatilla, Oregon. On March 3, 2011, Evans, appearing pro se, filed this case alleging that 15 ODOC officials violated his constitutional rights by failing to protect him from attack by another inmate at TRCI in January 2010, maliciously prosecuting and improperly processing a prison rule violation against him in June and July 2010, and transferring him to the Administrative Segregation Unit ("ASU") at the Snake River Correctional Institute ("SRCI") in Ontario, Oregon, in October 2010 in retaliation for his filing of grievances.
On February 24, 2012, this court appointed pro bono counsel for Evans for the sole purpose of assisting him with the filing of an amended pleading (docket #58). The Third Amended Complaint ("Complaint") alleges four claims under 42 USC § 1983 against six ODOC officials in their individual capacities: James Deacon ("Deacon"), Greg Jones ("Jones"), Genelle Mackey ("Mackey"), Guy Hall ("Hall"), Doug Abbott ("Abbott"), and Jose Olvera ("Olvera"). The four claims allege violations of Evans's: (1) Fourteenth Amendment due process rights by Jones, Hall, Mackey, and Abbott resulting from his transfer into SRCI's ASU from October 6, 2010, until March 2, 2011 ("First Claim"); (2) Eighth Amendment rights by Jones for failing to protect him from attack by another TRCI inmate in January 2010 ("Second Claim"); (3) First Amendment rights by Olvera for retaliating against him for filing prison grievances in December 2011 and adding Olvera as a defendant in this action in January 2012 ("Third Claim"); and (4) Fourteenth Amendment due process rights by Deacon for denying Evans the ability to present evidence at a disciplinary hearing concerning an incident that took place in January 2012 ("Fourth Claim"). Evans seeks declaratory relief, as well as compensatory and punitive damages on each of his four claims. This court has original jurisdiction over these claims pursuant to 28 USC § 1331.
On May 20, 2013, all parties consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #178).
The parties have filed the following competing motions to dismiss or for summary judgment: (1) Defendants' (Abbott, Deacon, Hall, Jones, Mackey, and Olvera) Motion to Dismiss (docket #85) against the First and Second Claims; (2) Defendants' (Olvera and Deacon) Motion to Dismiss or for Summary Judgment (docket #87) against the Third and Fourth Claims; and (3) Plaintiff's Motion for Summary Judgment (docket #159) on all claims. On August 20, 2012, this court advised the parties of the standards governing these motions (dockets #90 & #91).
For the reasons that follow, the First, Second and Third Claims are dismissed, and summary judgment is granted to Evans as to liability against Deacon on the Fourth Claim.
I. Motions to Dismiss
In order to state a claim for relief, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" FRCP 8(a)(2). This standard "does not require detailed factual allegations, '" but does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id, quoting Twombly, 550 U.S. at 555. In order to survive a motion to dismiss for failure to state a claim pursuant to FRCP 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id, quoting Twombly, 550 U.S. at 570.
In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 640 (9th Cir 2014); Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir 2012). In addition to the allegations of the complaint, the court may also consider documents whose authenticity no party questions which are attached to the complaint, as well as matters capable of judicial notice. Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n9 (9th Cir 2012) (citations omitted); Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir 2010). Additionally, under the "incorporation by reference' doctrine, [e]ven if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." Ecological Rights Found. v. Pac. Gas and Elec. Co., 713 F.3d 502, 511 (9th Cir 2013), quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir 2003) and citing Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir 2012).
II. Motions for Summary Judgment
In support of their respective summary judgment motions, both Evans and defendants have submitted copies of documents, the bulk of which are not referenced in the pleadings, but the authenticity of which no party contests. In addition, Evans has submitted various declarations, some portions of which are unchallenged. To the extent that the submittals are disputed, they must be viewed in the light most favorable to the person against whom they are asserted.
Evans, who has for the most part proceeded pro se, was advised of the standards for responding to summary judgment motions and appears well equipped to act in his own behalf. Additionally, for the limited purpose of responding to this court's Order (docket #181) concerning supplemental evidence and briefing, Evans is represented by counsel.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FRCP 56(a). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court "draws all justifiable inferences in favor of the non-moving party." Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir 2014), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
I. Initial Transfer Into Protective Custody (TRCI's AHU)
Evans was admitted to ODOC custody on December 13, 2007. In Camera Subm., p. 002. After initial intake at Coffee Creek Correctional Facility ("CCCF"), he was transferred to the Oregon State Penitentiary ("OSP") on January 29, 2008. Id. A month later, Evans requested protective custody placement due to concerns about his safety. In Camera Subm., pp. 23-24. Pursuant to that request, on March 21, 2008, ODOC officials transferred Evans into administrative segregation at OSP. Id, p. 002. A year later, on February 26, 2009, Evans was transferred to TRCI and housed in TRCI's Administrative Housing Unit ("AHU"). Id. TRCI's AHU is an open unit which normally houses inmates who voluntarily sign into protective custody.
II. Attack in TRCI's AHU
Sometime in or before November 2009, inmate John Santmeyer ("Santmeyer") was transferred into TRCI's AHU. On November 15, 2009, Jones interviewed Santmeyer for the purpose of determining an appropriate housing placement considering his behavioral history and mental condition. Complaint, ¶ 30. Santmeyer requested a move into long-term administrative segregation (such as the ASU at SRCI) because he did not like being around so many people and warned that if he was not moved into a more solitary housing unit, he would "harm/attack someone" in TRCI's AHU. Mattei Decl. (Reply Ex. 17), ¶ 3.
Seven weeks later, on January 3, 2010, in a common area in TRCI's AHU, Santmeyer attacked and stabbed Evans with a pencil in the face, back, and shoulder. Complaint, ¶ 32; Reply Ex. A, p. 2. When asked to explain why, Santmeyer stated that he had been "really upset since I talked to Lt. Jones a couple of months ago and this guy [Evans] has a bad habit of messing with me or picking at me." Reply Ex. A, p. 2. He also stated that Jones had "made a joke" about his request to be moved into long-term administrative segregation. Id. Santmeyer also explained during another interview that he had asked many times to be moved to long-term administrative segregation and had fought with Evans because he wanted to go back to SRCI and "had problems" with Evans. Id, p. 1.
III. Allegations of Threats & Transfer to ASU
On June 5, 2010, six months after the attack by Santmeyer, a "confidential informant" reported to correctional officer P. Alleman ("Alleman") that Evans had made several comments about wanting to stab Alleman. Plaintiff's Ex. 3 p. 1 (Misconduct Report dated June 6, 2010); Sullivan Decl., Ex. B (docket #165-2), p. 9. Alleman interviewed four other confidential informants who all gave similar statements. Plaintiff's Ex. 3, p. 1. Based on Alleman's misconduct report, a disciplinary hearing convened on June 9, 2010, and Evans was found in violation of Rule 2.10 (Disrespect I) and sentenced to 21 days disciplinary segregation, 14 days of loss of privileges, and a $75.00 fine, suspended pending no major rule violations. Id, p. 2; Sullivan Decl., Ex. B, pp. 7-8.
By the end of June 2010, Evans had served that 21-day sentence in the Disciplinary Segregation Unit ("DSU"). Sullivan Decl., Ex. B, p. 2 (Inmate Disciplinary Record, noting conviction date of 6/9/2010, with 21 days in DSU 6/5/10-6/25/10, 14 days LOP (loss of privileges) upon release from DSU, and a $75 suspended fine through 7/9/10). Nevertheless, Evans contends that his October 6, 2010 transfer into SRCI's ASU was related to that event. Plaintiff's Revised Decl. (docket #160), ¶ 2.
Upon his release from TRCI's DSU, Evans repeatedly advised Captain Steve Boston that inmates - including those who made the false allegations against him to Alleman - were making false disciplinary complaints in order to curry favor with staff or to obtain resources from monied inmates. Id, ¶ 3. Boston purportedly told Evans that if it occurred again, Evans would "not be denied [his] request for an investigation as [he] was on June 9, 2010." Id; see also Sullivan Decl., Ex. B, p. 7 ("Inmate's request for witness/investigation [was] denied because the proffered evidence/testimony would not constitute a defense to the charges nor substantially mitigate the rule violations."). Evans also became embroiled in a dispute with Alleman.
Less than two weeks after being released from the DSU, Evans was placed in the DSU again, allegedly for threatening other inmates for getting him placed in the DSU in June. Plaintiff's Ex. 9. Alleman filed a misconduct report accusing Evans of Disrespect I. Id, p. 1. Evans then filed a series of grievance forms asking that Alleman be relieved of duty, given additional training, and have a mental status or fitness for duty examination based on Evans's accusations that Alleman lied, yelled at him, and unjustifiably threatened him with placement in DSU. Plaintiff's Exs. 6-8, 10 (p. 1), 11 (p. 1). On August 26, 2010, the Disrespect I charge was dismissed based on insufficient evidence and "suspect" confidential informant testimony. Plaintiff's Ex. 9, p. 2. On September 14, 2010, at least one of Evans's multiple grievances against Alleman was denied. Plaintiff's Ex. 8, p. 4.
On September 20, 2010, Evans sent an Inmate Communication Form (also referred to as a grievance or kyte) to Steven Franke, then Superintendent of TRCI, requesting that the findings in case #1006 TRCI 0032 TRCI 25 (regarding the June 6, 2010 incident with Alleman) be overturned and dismissed because it was not investigated and upheld on the word of Joseph Scott, an inmate who had been found "suspect" in another disciplinary case (the July 3, 2010 incident which resulted in Evans being sent to the DSU a second time) for bragging to a number of others on the unit that he had twice managed to get Evans sent to the DSU. Plaintiff's Ex. 5, p. 1.
In September 2010, Jones, Hall, Mackey and Abbott were members of the Special Population Management ("SPM") Committee. A week after Evans sent his kyte to TRCI Superintendent Franke, members of the SPM Committee, including Jones and Mackey, convened a meeting at which the SPM Committee decided, without explanation, that Evans would be transferred from TRCI's AHU to SRCI's ASU. In Camera Subm., p. 005. The record contains no evidence indicating the basis for that transfer decision or how long it would last. At least one document indicates that Evans was in "invol[untary] ad[ministrative] seg[regation]." Plaintiff's Ex. 14, p. 2.
No evidence indicates that Evans was notified of or knew about the SPM Committee meeting that determined he should be transferred. Although his transfer did not take place immediately, 11 days after the SPM Committee meeting, on October 6, 2010, Evans was transferred out of TRCI's AHU into SRCI's ASU. The following day, Franke declined to reopen case #1006 TRCI 0032 TRCI 25 (regarding the June 6, 2010 incident with Alleman).
IV. Grievances Relating to the 2010 Transfer to SRCI's ASU
Within days after his transfer into SRCI's ASU, Evans filed a grievance requesting an investigation and demanding his return to TRCI. Plaintiff's Ex. 12. Evans stated that he had been sent to SRCI's ASU in retribution for filing grievances and, in particular, noted that Alleman had threatened to "give [Evans] a new address'" as retaliation against Evans for filing grievances against Alleman for harassment. Id. That grievance was returned unprocessed by the Grievance Coordinator, with a note stating that Evans needed to explain exactly what he was grieving and provide a citation to the Oregon Administrative Rules. Id, p. 2.
On November 5, 2010, Evans filed a grievance, explaining that he felt his transfer to SRCI was based on retribution and asking for "an official' explanation for why I have been moved to SRCI from TRCI." Plaintiff's Ex. 13, p. 1. He also filed a grievance against the Grievance Coordinator, accusing her of being involved in a conspiracy and seeking an investigation as to why he had been sent to SRCI. Id, p. 2. He filed two additional grievances on November 5 and 12, 2010, requesting an "official reason for... being transferred from TRCI to the punitive segregation unit at SRCI." Plaintiff's Ex. 14, p. 1. These grievances went unprocessed, purportedly because they included too many issues and were encompassed in a tort claim that Evans had filed. Plaintiff's Ex. 13, p. 3.
On or about January 1, 2011, Evans apparently submitted a complaint to ODOC concerning his transfer into SRCI's ASU. The Grievance Coordinator denied the complaint, checking a box stating that the "Issue is not Grievable - Complaint has a separate appeal/review process such as conduct orders, misconduct reports, rejection/confiscation of mail, visiting, discrimination complaints, hearings, etc." Plaintiff's Ex. 14, p. 2. A handwritten entry indicates that Evans should "see [the] ad seg rule." Id.
On January 17, 2011, Evans filed a fourth grievance concerning his transfer into SRCI's ASU, stating that he has "a right to know why I have been assigned to this housing unit and subjected to punitive sanctions when I had done nothing to deserve such treatment." Id, p. 1. The same day, he submitted another grievance asserting that the conditions in SRCI's ASU amounted to cruel and unusual punishment in violation of the Eighth Amendment ...