United States District Court, D. Oregon
TIMOTHY V. LEPESH, Plaintiff,
MELISA DAVIDSON, M. Gilbert Library Coordinator at O.S.P.; A. PINKLEY-WERNZ, Assistant of Superintend, at O.S.P.; JEREMY M. NOFZIGER, Hearings Officer at O.S.P. with ODOC; OREGON DEPARTMENT OF CORRECTIONS, employees in the State of Oregon; JANELL D. ROCHESTER, at SRCI; JEFF PRIMO; BRANDON KELLY, Superintendent at O.S.P.; MELISSA A. GILBERT, a/k/a M. Davidson; MELLISSA A. DAVIDSON, a/k/a M. Gilbert; NATE LOWE, O.S.P.; JOE CAPPS; R. GOLDSTON, Inspector; MAUREEN ROSSI, Legal Library Coordinator; B. CAIN, SRCI, Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN UNITED STATES DISTRICT JUDGE
case comes before me on Defendants' Motion for Summary
Judgment [ECF 64]. Following Defendants' motion,
Plaintiff Timothy Lepesh filed various documents and motions
which this court has construed as a collective Response to
Defendants' motion. See Order [ECF 76]. Thus,
for purposes of resolving the present motion, I have taken
into consideration the following filings from Mr. Lepesh: (1)
Motion to Strike Defendant's Motion for Summary Judgment
[ECF 69]; (2) Declaration of Lepesh in support of Motion to
Strike [ECF 67]; (3) Memorandum in Support of Motion to
Strike [ECF 70]; (4) (a second) Motion to Strike
Defendant's Motion for Summary Judgment [ECF 71]; (5)
Declaration of Lepesh in Support of Motion to Strike [ECF
72]; (a second) Declaration of Lepesh in Support of Motion to
Strike [ECF 73]; and (6) Response to Defendants' Motion
for Summary Judgment [ECF 79].
reasons stated below, I GRANT Defendants' Motion for
Summary Judgment and DISMISS this case with prejudice.
Timothy V. Lepesh is a prisoner in the custody of the Oregon
Department of Corrections ("ODOC") currently
incarcerated at the Snake River Correctional Institution
("SRCI"). Defs.' Mot. Summ. J. [ECF 64] at 1-2.
Lepesh filed his original complaint in this case on April 24,
2017. Compl. [ECF 2]. On June 7, 2017, 1 dismissed Mr.
Lepesh's that complaint for failure to state a claim,
with leave to amend. Order [ECF 5]. Mr. Lepesh eventually
filed the operative Third Amended Complaint on March 5, 2019.
Third Am. Compl. ("TAC") [ECF 53]. Defendants filed
the present motion for summary judgment against the Third
Amended Complaint on August 20, 2019. .
Third Amended Complaint, Mr. Lepesh asserts various claims
under 42 U.S.C § 1983 alleging that Defendants-all
employees of ODOC-violated his rights under the First and
Fourteenth Amendments, and the Ex Post Facto Clause
of the Constitution, by denying him due process and access to
the courts. TAC  at 5-11. Specifically, Mr. Lepesh
alleges that Defendants illegally confiscated and destroyed
legal documents pertaining to his active post- conviction
relief ("PCR") cases,  denied him legal services
(such as photocopying and mail services) in connection with
his PCR cases, improperly sanctioned him for purportedly
creating fraudulent legal documents, and improperly reviewed
his legal mail outside of his presence. Id. Mr.
Lepesh seeks declaratory and injunctive relief, including the
return of his legal documents and the restoration of lost
good-time credits, as well money damages totaling $7, 900,
000 (constituting attorney's fees, court fees, punitive
damages, and economic and non-economic damages). Id.
at 7, 11.
general allegations arise from several discrete incidents, as
alleged in the Third Amended Complaint:
1. Sometime before December 21, 2016, at Oregon State
Penitentiary ("OSP"), Defendants Davidson,
Pinkley-Wernz, and Nofziger-acting without a search
warrant-broke into Mr. Lepesh's locked legal filing
cabinet and confiscated Mr. Lepesh's "legal
documents, court files, records,  original transcripts,
original exhibits and evidence, notarized affidavits, and
power of attorney's documents" relevant to his PCR
cases. TAC  at 5. Some or all of these documents were
contained on a thumb drive that was confiscated. Id.
These three Defendants then turned them over to the Oregon
State Police on December 21, 2016. Id. The
Defendants also allegedly read some of the documents,
including documents purportedly protected by attorney-client
2. On October 27, 2016, at a formal disciplinary hearing at
OSP, Defendant Nofziger (a Prison Disciplinary Hearings
Officer) confiscated a copy of a "legal document"
from Mr. Lepesh, thus prohibiting him from filing it with
"the court." TAC  at 6. Nofziger also allegedly
denied Mr. Lepesh a continuance of the hearing before finding
him in violation of prison rules and sanctioning him with a
loss of 100 days of good-time credits. Id. at 7.
3. On multiple occasions throughout 2017 and 2018, Defendants
Davidson, Prinkley-Wernz, Rochester, Rossi, Capps, and
Goldston denied Mr. Lepesh various legal services and
materials, including photocopies, legal mail envelopes,
printing services, and filing and other mailing services.
Id. at 5-6, 8-9. Mr. Lepesh alleges these denied
requests interfered with his ability to litigate his PCR
cases by delaying his efforts and causing him to miss
4. On May 2, 2018, Defendant Rossi, and possibly Defendants
Goldston and Capps, confiscated and destroyed legal documents
and other property belonging to Mr. Lepesh which he needed to
litigate one of his PCR cases, causing him to miss deadlines.
Id. at 9.
5. On May 9, 2019, Defendant Goldston wrote a false
misconduct report accusing Mr. Lepesh of racketeering in
order to "cover-up" the purportedly unlawful
confiscation of documents on May 2, 2018. Id. at 10.
Goldston also took another "legal document" which
Mr. Lepesh needed for one of his PCR cases. Id. This
prevented Mr. Lepesh from presenting this document at a June
21, 2018, "pre-trial" and at a "trial" on
July 19, 2018. Id.
6. On May 23, 2018, a formal disciplinary hearing was
conducted by Defendant Capps (a Prison Disciplinary Hearings
Officer at SRCI) regarding the May 2, 2018, confiscation of
documents and the purportedly "trump[ed]-up charges of
racketeering." Id. at 10. Capps found Mr.
Lepesh in violation of prison ...