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Steger v. Peters

United States District Court, D. Oregon, Eugene Division

July 16, 2018

BLAKE STEGER, Plaintiff,
v.
COLLETTE PETERS, Director Oregon Department of Corrections, et al., Defendants.

          OPINION AND ORDER

          Youlee Yim You United States Magistrate Judge

         INTRODUCTION

         On October 31, 2016, plaintiff Blake Steger (“Steger”) filed this civil rights case under 42 USC § 1983, alleging claims against Collette Peters, the Director of the Oregon Department of Corrections (“ODOC”), 19 other named ODOC employees, and 20 John and Jane Doe defendants. When he filed his complaint, he was incarcerated at the Oregon State Correctional Institution (“OSCI”), but has since been released. Compl. ¶ 4, ECF #2; ECF #6.

         This court has jurisdiction over Steger's claims under 28 USC §§ 1331, 1367(a), and 42 USC § 1983. All parties have 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).[1] ECF #17.

         Before the court are defendants' Motion for Summary Judgment (ECF #38) and Motion to Dismiss for Lack of Prosecution (ECF #55). For the reasons that follow, these motions are granted and the case shall be dismissed.

         ALLEGATIONS AND CLAIMS

         Steger alleges that he arrived at OSCI on May 12, 2015, and during his incarceration, he was sexually harassed and abused by other inmates and by corrections officers in violation of the Prison Rape Elimination Act (“PREA”). He contends that ODOC employees did nothing to stop the abuse, and he eventually filed multiple grievances and complaints with OSCI's Superintendent, Christine Popoff, and the Inspector General's office. Complaint 13-20, ECF #2. Steger alleges that, as a result of his grievances and complaints, unknown ODOC officials retaliated by retracting 32 days of his earned good time credit and thereby extended his release date out over a month. Id. at 15-16, 20-21, 29. He contends that his continued complaints and grievances resulted in no relief and left him exposed to his abusers on a regular and continuing basis. Steger eventually notified Superintendent Popoff that he would be pursuing this matter in federal court. Id. at 34.

         Steger alleges eight claims for: (1) deliberate indifference to his safety and mental health needs in violation of the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 13 and 16 of the Oregon Constitution (First, Third, and Fourth Claims); (2) sexual orientation discrimination in violation of the Fourteenth Amendment to the United States Constitution (Second Claim), Article I, Section 20 of the Oregon Constitution (Fifth Claim), and ORS 179.750 and ORS 659A.006 (Sixth Claim); (3) intentional infliction of emotional distress (Seventh Claim); and (4) negligence (Eighth Claim).

         DISCUSSION

         I. Summary Judgment

         Defendants' motion raises a host of issues, including lack of exhaustion, lack of a cause of action under the PREA or § 1983 for verbal harassment, lack of personal participation by half of the named defendants, immunity from suit as to damages alleged against defendants in their official capacities, lack of economic damages, inability to recover punitive damages, Eleventh Amendment immunity, and a failure to plead, insufficient, and late tort claims notice. Many of these issues appear well-taken. However, this court is not required to expend its limited resources evaluating the merits of a motion to which Steger has not responded. Steger's failure to respond to defendants' motion for summary judgment is a concession on the merits. See Lykins v. Hohnbaum, 2002 WL 32783973, at *3 (D. Or. Feb. 22, 2002) (finding plaintiff conceded dismissal of a claim on motion for summary judgment by not addressing it); Ward v. Nat'l Entm't Collectibles Ass'n, Inc., 2012 WL 12885073, at *10 (C.D. Cal. Oct. 29, 2012) (holding that by failing to oppose defendants' motion for summary judgment on damages claim, plaintiff abandoned right to seek such damages); Bolbol v. City of Daly City, 754 F.Supp.2d 1095, 1115 (N.D. Cal. 2010) (granting summary judgment where plaintiff failed to address the issue in opposition brief); Ankele v. Hambrick, 286 F.Supp.2d 485, 496 (E.D. Pa. 2003) (finding where plaintiff made no response to the argument, he “waived his opportunity to contest it” and “summary judgment is appropriate”).

         II. Failure to Prosecute

         The day after defendants filed the pending motion, this court advised Steger of the standards governing disposition of summary judgment motions and allowed him until January 16, 2018, to file a response to defendants' motion. ECF #42. Following issuance of that order, Steger twice sought and was granted extensions of time to respond to defendants' motion. ECF #45 (granting an extension through February 15, 2018) and #48 (granting an extension through April 2, 2018). After the order regarding the latter extension was returned as undeliverable (ECF #50), this court issued an Order to Show Cause why this case should not be dismissed for failure to prosecute. ECF #51. However, Steger then advised the court that his address had not changed, and the court withdrew the Order to Show Cause and ordered that his response remain due on or before April 2, 2018. ECF #52.

         Despite two extensions of time, Steger has not substantively responded to defendants' motion. He also has not responded to the Notice of Non-Filing (ECF #54) that defendants submitted on the date their reply was due. On June 13, 2018, defendants filed a Motion to Dismiss for Lack of Prosecution. ECF #55. To date, even ...


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