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Johnson v. Noack

United States District Court, D. Oregon

July 6, 2018

MARIO JOHNSON, Plaintiff,
v.
LINDSAY NOACK, personal and official capacities; LYNN HUST, personal and official capacities; MATTHEW GUSHARD, personal and official capacities; TRACY JOSEPH, personal and official capacities, Defendants.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Mario Johnson (“Plaintiff”), a self-represented litigant, brings this 42 U.S.C. § 1983 action against four Oregon Department of Corrections (“ODOC”) employees-Lindsay Noack (“Noack”), Lynn Hust (“Hust”), Matthew Gushard (“Gushard”), and Tracy Joseph (“Joseph”) (collectively, “Defendants”). Plaintiff asserts constitutional and state law claims against Defendants based on actions they took during the period Plaintiff was incarcerated at ODOC institutions. All parties consent to the jurisdiction of a U.S. Magistrate Judge pursuant to Fed.R.Civ.P. 73(b). (ECF No. 44.) Defendants now move for summary judgment on Plaintiff's claims pursuant to Fed.R.Civ.P. 56. (ECF No. 54.) The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. For the reasons explained below, the Court grants Defendants' motion for summary judgment.

         BACKGROUND[1]

Plaintiff entered ODOC custody on October 7, 2014, and was initially housed at Coffee Creek Correctional Facility (“CCCF”). On October 30, 2014, Plaintiff transferred to the Columbia River Correctional Institution (“CRCI”). (SeeDorgan Decl. Att. 1 (listing Plaintiff's ODOC housing history).)

         Skin Search Incident

         On December 5, 2014, Plaintiff went through a medication line in a common area of CRCI. (Joseph Decl. ¶ 8.) Joseph, a correctional officer at CRCI, supervised the medication line. (Joseph Decl. ¶ 7.) One of her duties was to ensure prisoners take their medication rather than hide them to stash or barter. (Id.) During his inspection, Plaintiff kept sticking his tongue out and down rather than up as instructed by Joseph. (Joseph Decl. ¶ 8.) He complied after several orders. (Id.) After Plaintiff turned around, Joseph saw Plaintiff bring a hand to his mouth and then to his pocket. (Id.) She ordered him to take his hands from his pockets and tuck in his shirt so his pockets were visible. (Id.) He refused multiple times, even after Joseph said she would request a skin search. (Id.) Joseph then contacted intake staff to skin search Plaintiff. (Id.) She later submitted a memo to Michael Lange, who was shift lieutenant that day, describing the incident. (Joseph Decl. Att. 2.) Plaintiff denies lowering his hands below his chest, reaching into his pockets, and refusing to tuck in his shirt. (Johnson Decl. at 6-7.)

         Thomas Hayes (“Hayes”), a correctional officer at CRCI, heard Joseph's skin-search request on his radio. (Hayes Decl. ¶ 5.) He found Plaintiff “acting very agitated and unsettled” in the corridor. (Id.) He directed Plaintiff to the intake area, and eventually placed Plaintiff in the center unclothed search booth with the curtain closed. (Hayes Decl. ¶ 6.) Plaintiff was “agitated and argumentative” during this process. (Id.) Hayes found one prescription pill in Plaintiff's pants pocket. (Hayes Decl. ¶ 7.) The pill matched those in a blister pack of medication prescribed to Plaintiff. (Id.)

         Plaintiff ignored Hayes' orders to finish getting re-dressed. (Lange Decl. ¶ 5.) Sergeant Moore (“Moore”) (first name unknown), the shift sergeant who was in the intake area outside the booth, ordered Plaintiff to turn around so he could be restrained. (Lange Decl. ¶ 6.) Plaintiff did not comply, so Moore called for first responders. (Lange Decl. ¶¶ 6-7.) Siegel, a female officer and designated first responder, reported to the intake area.[2] (Lange Decl. ¶ 8.) Plaintiff “became argumentative and began waving his arms to make his point.” (Id.) Moore, Siegel, and Hayes entered the search booth and together forcefully restrained Plaintiff, who was later placed in the disciplinary segregation unit (“DSU”). (Id.)

         The following day, October 6, 2014, Plaintiff received a misconduct report for violating two Inmate Rules of Prohibited Behavior: Rules 1.11 (Contraband I) and 4.01 (Disobedience of an Order I). (Lange Decl. Att. 2, at 6.) On December 17, 2014, a disciplinary hearing was held regarding the skin search incident. (Nofziger Decl. ¶ 6.) Plaintiff acknowledged receiving a copy of the misconduct report, notices of the hearing and his rights at the hearing, and the Inmate Rules of Prohibited Behavior. (Id.) He also acknowledged understanding the misconduct report and his rights at the hearing. (Id.) The hearings officer heard testimony and found Plaintiff guilty of violating Rules 4.01 (Disobedience of an Order I) and 1.12 (Contraband II). (Id.) The hearings officer did not find evidence sufficient to support a violation of Rule 1.11 (Contraband I), as initially charged. (Id.) Plaintiff received a sanction of thirteen days in the DSU and seven days' loss of privileges upon release therefrom. (Id.)

         Transfer Incident

         On January 7, 2015, Plaintiff was transferred to Multnomah County for court proceedings. (Dorgan Decl. ¶ 6.) Upon Plaintiff's return to CRCI on January 14, 2015, Multnomah County transport staff reported twice having to use a Taser on Plaintiff, who reportedly was disruptive during the trip. (Dorgan Decl. ¶ 7.) Upon return, Plaintiff was administratively segregated in the DSU. (Id.)

         On January 15, 2015, a multi-disciplinary team (“MDT”) comprising staff from all operational departments at CRCI met to review the status of prisoners assigned to special housing units. (Dorgan Decl. ¶ 9.) MDT recommended that Plaintiff remain in the DSU until paperwork regarding the January 14, 2015, incident arrived from Multnomah County, and that Plaintiff be transferred to another facility. (Dorgan Decl. ¶ 10.) A request that Plaintiff be transferred to the Oregon State Penitentiary (“OSP”) was made on January 21, 2015. (Dorgan Decl. Att 4.) MDT met again on January 22, 2015, but did not change its recommendation. (Dorgan Decl. ¶ 13.) The ODOC Office of Population Management (“OPM”) approved the transfer. (Dorgan Decl. ¶ 14.) On January 23, 2015, Plaintiff transferred to OSP, where he remained administratively segregated until January 29, 2015. (Dorgan Decl. ¶ 15.)

         On February 20, 2015, Plaintiff transferred to the Oregon State Correctional Institution (“OSCI”). (Dorgan Decl. Att. 1.)

         Cell Search Incident

         On May 15, 2015, Alves (“Alves”) (first name unknown) went to Plaintiff's cell, which he had been instructed to search for unauthorized envelopes. (Gushard Decl. Att. 8.) Plaintiff was in his cell, and Alves ordered him to leave. (Id.) Plaintiff was hostile, so Alves ordered Plaintiff to go to the officer's area. (Id.) Plaintiff left and returned a few minutes later, saying he wanted to watch the search. (Id.) Alves repeatedly ordered Plaintiff to leave, and Plaintiff repeatedly refused, “becoming more aggressive in his refusals.” (Id.) Alves called for staff assistance. (Id.) When staff arrived, Alves ordered Plaintiff to submit to restraints. (Id.) Plaintiff “refused and postured as if he was going to fight with staff.”[3] (Id.) Plaintiff submitted to restraints after Alves pulled out his pepper spray and threatened to use it. (Id.) Plaintiff was later placed in segregation. (Id.)

         The next day, May 16, 2015, Plaintiff received a misconduct report for violating two Inmate Rules of Prohibited Behavior: Rules 1.11 (Contraband II) and 4.01 (Disobedience of an Order I). (Nofziger Decl. Att. 2, at 3.) A disciplinary hearing regarding the cell search incident took place on May 20, 2015. (Id. at 1.) Plaintiff acknowledged receiving a copy of the misconduct report, notices of the hearing and his rights at the hearing, and the Inmate Rules of Prohibited Behavior. (Id.) He also acknowledged understanding the misconduct report and his rights at the hearing. (Id.) The hearings officer heard testimony and found that Plaintiff had violated Rule 4.01 (Disobedience of an Order), but dismissed the Rule 1.11 violation (Contraband II).[4] (Id.) Plaintiff received a sanction of fourteen days in the DSU and fourteen days' loss of privileges upon release therefrom. (Id. at 2.)

         Cell Block Incident

         On May 27, 2015, Plaintiff transferred back to OSP. (Dorgan Decl. Att. 1.) He spoke to Sergeant Hollman (“Hollman”) (first name unknown) on June 5, 2015, about having sleep apnea and snoring, which was keeping his cellmate and others awake. (Nofziger Decl. Att. 3, at 3.) Hollman gave Plaintiff a couple of suggestions, and Plaintiff said, “I cannot go back to the block.”[5] (Id.) Hollman asked whether Plaintiff was refusing to “cell in.” (Id.) When Plaintiff did not immediately respond or move toward his cell block, Hollman placed Plaintiff in wrist restraints and escorted him to the DSU. (Id.)

         On June 11, 2015, a disciplinary hearing regarding the cell block incident was held. (Nofziger Decl. Att. 3, at 1-2.) Plaintiff acknowledged receiving a copy of the misconduct report, notices of the hearing and his rights at the hearing, and the Inmate Rules of Prohibited Behavior. (Id.) He also acknowledged understanding the misconduct report and his rights at the hearing. (Id.) The hearings officer heard testimony and found that Plaintiff had violated Rule 4.01 (Disobedience of an Order I) and Rule 4.40 (Unauthorized Area I). (Id.) Plaintiff received a sanction of seven days in the DSU and seven days' loss of privileges upon release therefrom. (Id.)

         On October 15, 2015, Plaintiff was released to post-prison supervision. (Erickson Decl. ¶ 3.) He filed this action on March 11, 2016. (ECF No. 2.)

         ANALYSIS

         I. STANDARD OF REVIEW

         Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted).

         II. DISCUSSION

         A. 42 U.S.C. § 1983 Claims

         1. Access to Courts

         a. Introduction

         At the heart of Plaintiff's amended complaint are his allegations that, in various ways, he was denied his right of access to courts, a First Amendment right subsumed under the right to petition the government for redress of grievances. Perry v. Barton, No. C 92-2339 BAC, 1994 WL 374551, at *2 (N.D. Cal. June 29, 1994). The right of access to courts “requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). However, “[b]ecause Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). As such, “the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” Id.

         b. Plaintiff's Allegations

         Plaintiff bases his access-to-courts claim on several events that allegedly took place at CRCI and OSCI.

         i. CRCI

         First, Plaintiff claims that at CRCI his “saved legal work was partially deleted or in some cases entirely deleted from [his] assigned thumb drive that was left in the custody of the library clerk, Defendant Ms. Hust.” (Am. Compl. at 9.) He further claims Hust called him to the library and asked why he needed certain legal material on his thumb drive and then “proceeded to delete the legal information in its entirety.” (Id.) Second, Plaintiff claims he was “denied [his] legal reference books[, ] legal documents, and communication with [his] family court attorney” during his first stay in solitary confinement. (Am. Compl. at 10.) Third, Plaintiff claims his “written request[s] for access to the law library were being disregarded.” (Id.) He further claims that, after filing a grievance, his access was “eventually reinstated, but the time allowed was discriminately limited and [his] activities were highly monitored and censored.” (Id.) Fourth, Plaintiff claims that during his second stay in solitary confinement at CRCI he was again denied contact with his family court attorney, who was attempting to contact him regarding “imminent deadlines and other pending legal matters[.]” (Am. Compl. at 11.)

         ii. OSCI

         Fifth, Plaintiff claims that at OSCI he was subjected to a policy that “infringed on inmates['] right to meaningful access to legal material and copy services.” (Am. Compl. at 13.) The policy, as Plaintiff describes it, requires prisoners to save certain legal information on assigned thumb drives, and “then the library clerk would print the information to be given to the inmate but not before the information was thoroughly reviewed and censored.”[6] (Am. Compl. at 14.) Plaintiff alleges that Gushard “was the law library clerk who reviewed and censored inmates['] legal material.” Plaintiff claims that Gushard refused to “deviate from the rigid, unconstitutional policy” by allowing him legal information needed for “imminent filing deadlines, ” physically assaulted Plaintiff, and then “apologized the next day, stating ‘he recognized that denial of the legal material is legally arbitrary but he is only following orders from up above.'” (Am. Compl. at 14-15.)

         Sixth, Plaintiff claims that he “attempted to circumvent the situation” by conducting his legal work from his cell and that, as a result, Gushard sent a correctional officer to his cell to seize his legal reference books and legal documents.[7] (Am. Compl. at 15.) Seventh, Plaintiff claims the officer looked through his legal documents and ordered him to leave the cell block. (Id.) Eighth, Plaintiff claims that, after a stay in solitary confinement and a transfer to OSP following the cell-search incident, his legal documents were returned but “some of the material evidence relating to D.O.C. [was] missing.” (Am. Compl. at 16.)

         In his declaration in support of his amended response (ECF No. 72-1), Plaintiff raises several additional issues regarding law libraries at ODOC facilities.[8] He complains generally that he had to use three-inch pencils and carbon paper to transcribe his research materials, and prison officials do not provide prisoners enough time in the library for identifying, analyzing, and transcribing by hand. (Johnson Decl. at 2.) He also complains that there are too few legal assistants, assistants are often too busy to help, and there is a backlog of requests for appointments with assistants. Furthermore, legal assistants do not draft complaints and motions for prisoners, who must do their own drafting. (Johnson Decl. at 3.) Plaintiff also makes a handful of specific complaints: namely, that his legal documentation from CRCI was seized when he was transferred, and he had to start over at OSCI (Johnson Decl. at 16); OSCI's law library policy that word processors cannot be used for tort suits, soliciting an attorney, or for § 1983 suits is unconstitutional (Johnson Decl. at 17); and that Gushard censors legal information that could be used against ODOC or other state entities (Johnson Decl. at 18).

         c. Analysis

         “Where a prisoner asserts a backward-looking denial of access claim-one, as here, seeking a remedy for a lost opportunity to present a legal claim-he must show: 1) the loss of a ‘nonfrivolous' or ‘arguable' underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit.” Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (quoting Christopher v. Harbury, 536 U.S. 403, 413-14 (2002)), judgment vacated on other grounds, 555 U.S. 1150 (2009). Plaintiff cannot succeed on any of his access-to-court claims because he has failed to identify any actual injury caused by any such alleged constitutional deprivation. See Lewis, 518 U.S. at 351 (requiring more to establish actual injury than alleging that a prison law library is “subpar in some theoretical sense”).

         In his amended complaint, Plaintiff alleges that his petition for post-conviction relief was procedurally defaulted, and that his parental rights were terminated, as a result of the alleged constitutional deprivations. (Am. Compl. at 17.) Plaintiff restates similar allegations in his amended declaration. (Johnson Decl. at 2, 10-11.) However, Plaintiff has submitted no explanation, ...


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