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Withers v. Frates

United States District Court, D. Oregon

February 2, 2018

JACK WITHERS, Plaintiff,





         These matters come before the Court on the Motion (#38) for Summary Judgment and Motion (#57) to Strike Portions of the Declaration of Jeremy Bauer filed by Defendant Charles Frates, and the Motion (#54) to Strike Testimony Offered in Support of Defendant's Motion for Summary Judgment filed by Plaintiff Jack Withers.

         For the reasons that follow, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES as moot Defendant's Motion to Strike and Plaintiff's Motion to Strike.


         The following facts are taken from the Joint Statement of Agreed Facts (#41) and the materials the parties submitted in support of their Motions. Accordingly, these facts are undisputed unless otherwise noted.

         Jayson Withers was an inmate at Eastern Oregon Correctional Institution (EOCI) in Pendleton, Oregon, from 2010 until August 29, 2014, when he died after Defendant Frates, a corrections officer at EOCI, shot him.

         EOCI houses approximately 1, 600 male inmates. The EOCI facility is divided into East and West sides, and each side has a recreation yard referred to as the “East Yard” and “West Yard” respectively.

         Whenever inmates are in either of the yards, there are corrections officers on the ground among the inmates who do not carry firearms but do carry pepper spray. These officers also carry radios that are set to a designated channel for their EOCI area.

         There is one guard tower for the West Yard where this incident occurred. A corrections officer is assigned to the tower whenever inmates are in the West Yard. The tower officer supervises the yard from inside a small booth on the tower or from an adjacent platform. The tower officer carries a radio and is armed with a Ruger Mini-14, which is a .223 caliber semiautomatic rifle with a four-power scope. The tower officer also has access to a footpedal-operated public-address system to communicate with inmates in the yard.

         Each yard is equipped with several video cameras, but those cameras do not canvas the entire yard. The cameras are remotely controlled by the EOCI Control Center. If an officer reports by radio that an incident is occurring, the Control Center can then pan, zoom, and record the incident at the appropriate location.

         On the morning of August 29, 2014, Defendant was assigned duty in the West Yard Tower, and, accordingly, he went to the EOCI Armory, logged in, obtained the firearms required for his assigned tower duties, and proceeded to the West Yard Tower.

         Before inmates were released into the West Yard for recreation that morning, Defendant was at his assigned station in the West Yard Tower and Corrections Officers Steven Surber, Chester Kropornicki, and Dennis Bliss were on the ground in the West Yard. After these four officers were in their assigned places, inmates were allowed to enter the West Yard, which opened at approximately 8:30 a.m. Approximately 189 inmates entered the yard, including Withers, Cameron Hayes, and Eric Sexton.

         Shortly after entering the yard Withers and Hayes had their photo taken with a few other inmates, and Defendant saw some of that activity from his position in the tower. After their photos were taken, Withers and Hayes approached Sexton and requested Sexton to take a walk with them around the West Yard track.

         At some point Withers and Hayes engaged in an altercation with Sexton near the backstop at the far end of the West Yard, but Defendant did not observe Withers, Hayes, or Sexton after the time Withers and Hayes had their photos taken until the altercation was already underway.

         When Defendant saw the altercation from inside the tower, he stepped out of the tower with his rifle, used the rifle scope to observe the altercation, lowered his rifle, and then chambered a round. Defendant also heard someone call out “stop fighting.” In the meantime, Officers Surber, Bliss, and Kropornicki also saw the altercation, and all three officers proceeded toward the three inmates. In particular, Officer Surber ran toward the three inmates and yelled at them to stop.

         After chambering a round, Defendant aimed the rifle at Withers's center of mass, fired a shot, and struck Withers.

         Defendant did not fire a warning shot, blow a whistle, or use the foot-pedal operated public-address system before shooting Withers. At the time Defendant fired the shot (approximately 8:45 a.m.) the altercation had being going on for less than a minute. Before Defendant fired the shot one of the yard cameras was panned to the location of the altercation, but the placement of the camera put it directly into the sun, and the video taken immediately before the shot was unusable.

         The shot Defendant fired entered through Withers's neck at the approximate level of bifurcation of the carotid; transected his jugular vein on the left; struck his larynx, epiglottis, vocal chords, and strap muscles; exited his neck and immediately reentered his clavicle; and finally exited under his right arm. Withers died on the way to the hospital due to excessive blood loss.

         Sexton was able to walk off the yard under his own power, and at 9:50 a.m. Sexton was transported to St. Anthony's Hospital in Pendleton, Oregon. He was diagnosed with a left orbital fracture, facial swelling, and a headache. Sexton did not show any signs of intracranial or spinal trauma after further testing. Sexton was discharged at 12:40 p.m. and did not require further hospitalization for his injuries. All follow-up treatment occurred in Oregon Department of Corrections (ODOC) facilities.

         Tower officers are authorized to use lethal force consistent with ODOC's rules and are required to comply with the following provisions:

Oregon Administrative Rule (OAR) 291-013-0185(7) (general provisions): “The use of force must be objectively reasonable under all the circumstances known to the employees at the time. The use of force may range from verbal commands to the use of lethal force. If the force other than lethal force reasonably appears to be sufficient ...

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