United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge
matter comes before me on Defendants' Motion for Summary
Judgment  and Motion to Stay Discovery . Plaintiff
also filed a Motion for Court Order and a Motion to Hold
Summary Judgment in Abeyance .
reasons given below, I GRANT in part and DENY in part
Defendants' Motion for Summary Judgment . I further
DENY Plaintiffs Motion for Court Order , based on
Defendants' representation that they have not received
any discovery request from Plaintiff. Having ruled on the
Motion for Summary Judgment, I also DENY as moot Plaintiffs
Motion to Hold Summary Judgment in Abeyance , and DENY as
moot Defendants Motion to Stay Discovery .
August 7, 2017, Plaintiff Colby Aplin ("Plaintiff), pro
se, filed a complaint under 42 U.S.C. § 1983, alleging
that Defendants violated Plaintiffs Fourth, Eighth, and
Fourteenth Amendment rights. Compl.  at 1.
alleges the following facts: Sometime between 2014 and 2015,
while Plaintiff was incarcerated in Snake River Correctional
Institute ("SRCI"), two officers, twin brothers
with the last name Golem, sexually assaulted Plaintiff in a
cleaning closet in unit 2G. Compl.  at 2-3; Response 
at 3. Plaintiff reported the sexual assault to the
governor's office and to the Prisoner Rape Elimination
Act ("PREA") Reporting Department. Compl.  at 2.
Plaintiff received a letter in response, which said that
Defendants Lieutenant King and Lieutenant Morhorse would be
in charge of the investigation. Compl.  at 2-3. But
instead of investigating the matter, the Lieutenants moved
Plaintiff to unit 3E, told Plaintiff to never speak of the
sexual assault again, and assigned one of the officers who
sexually assaulted Plaintiff to monitor 3E. Compl.  at 3.
Plaintiff later moved out of SRCI and to the Oregon State
Correctional Institute ("OSCI"). See
Compl.  at 3.
further alleges that in 2017, while Plaintiff was located at
OSCI, Plaintiff told Defendant Captain Wagner that nobody
investigated the assault. Compl.  at 3. Captain Wagner
responded that two police officers would interview Plaintiff
within two weeks. Captain Wagner, however, never contacted
the police. Compl.  at 3. Plaintiff then filed a
grievance. Compl.  at 3. Plaintiffs mother also contacted
officials to ask why the investigation had not begun; she was
informed that Captain Wagner did not report the sexual
assault, and instead he notified the officers involved.
Compl.  at 3. In July, Plaintiff contacted the Special
Investigations Unit, and was told that Plaintiff would
receive updates and have the opportunity to make a statement
to the police. Compl.  at 3. But Plaintiff did not receive
further communications. Compl.  at 3. Plaintiff reports a
"continued fear of being released without the 'The
Golem Brothers' being held accountable." Compl. 
Statement of Claim alleges that Defendants violated the
Plaintiffs right "to be free from the fear of offensive
bodily contact and to be free from actual offensive bodily
contact, " since Plaintiff reported the "fear of
secondary attack because the defendants Threatened to kill
[Plaintiff]" if the sexual assault were reported. Compl.
 at 4. Plaintiff further alleges that Defendants
"have intentionally denied a response and legal action
against" the officers involved in the sexual assault.
Compl.  at 4.
move for summary judgment, arguing that Plaintiffs claim is
barred by the statute of limitations. Defs. Mot. for Summ. J.
 at 2. Defendants submitted evidence that Plaintiff was
housed at SRCI from September 10, 2014 to December 9, 2015,
and again from August 25, 2016 to January 25, 2017. Taylor
Decl.  at 2, Ex. 1 at 1. Plaintiff was in unit 2G at SCRI
from December 18, 2014 to February 3, 2015; moved to
disciplinary segregation for three days from February 3, 2015
to February 6, 2015; and then moved to unit 3E until
September 22, 2015. Taylor Decl.  at 2, Ex. 1 at 1. Since
Plaintiff says the sexual assault occurred when Plaintiff was
housed in unit 2G, it would have necessarily occurred before
February 3, 2015, when she was moved to administrative
segregation and then to a different unit.
also submitted evidence that Plaintiff filed a grievance
regarding the sexual assault on April 7, 2017. Taylor Decl.
, Ex. 3 at 1-4. The grievance alleges that "Officer
Joe and his twin brother" sexually assaulted Plaintiff
at unit 2G; that Plaintiff reported the incident to the PREA
reporting department by letter; that Plaintiff was
interviewed by Lieutenants King and Morhorse; and that they
advised Plaintiff "not to ever report the situation, and
if [Plaintiff] did they would have no trouble finding a c/o
to kill [Plaintiff]." Taylor Decl. , Ex. 3 at
second response to the Motion for Summary Judgment attached a
grievance that describes the assault that was signed by
Plaintiff and dated March 28, 2017. Response to Mot. for
Summ. J.  Ex. 3; see also Id. Ex. 4
(Informational report citing March 28, 2017 grievance). A
stamp notes that it was "RECEIVED" on March 30,
2017 by the OSCI Grievance Coordinator. Response to Mot. for
Summ. J.  Ex. 3. Plaintiff also suggests that Defendants
intentionally omitted "my first grievance of
2/12/2017." Response to Mot. for Summ. J.  at 4.
Plaintiff later states "I reported this assault through
an Inmate Communication Form on 4/12/2015 [that stated]
'is it considered a sinister issue for transgender [sic]
to have sex with a staff member for drugs and
money[?]'" Response to Mot. for Summ. J.  at 12.
judgment is appropriate if there is no genuine dispute of
material fact, viewing the evidence in the light most
favorable to the nonmoving party. Fed.R.Civ.P. 56(a). A
genuine dispute of a material fact is "one that could
reasonably be resolved in favor of either party."
Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir.
Ninth Circuit has "held consistently that courts should
construe liberally motion papers and pleadings filed by pro
se inmates and should avoid applying summary judgment rules
strictly." Thomas v. Ponder,611 F.3d 1144,
1150 (9th Cir. 2010) (citation omitted). This rule exempts
pro se inmates from strict compliance with the summary
judgment rules, but it does not exempt them from all
compliance. See Blaisdell v. Frappiea, 729 F.3d
1237, 1241 (9th Cir. 2013) ("This rule relieves pro se
litigants from the strict application of procedural rules and
demands that a court not hold missing or inaccurate legal
terminology or muddled draftsmanship against them."
(emphasis added); Marrero v. ...