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Lepesh v. Davidson

United States District Court, D. Oregon

January 13, 2019

TIMOTHY V. LEPESH, Plaintiff,
v.
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

         This 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].

         For the reasons stated below, I GRANT Defendants' Motion for Summary Judgment and DISMISS this case with prejudice.

         BACKGROUND

         Plaintiff 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.

         Mr. 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. [64].

         In his 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 [53] at 5-11. Specifically, Mr. Lepesh alleges that Defendants illegally confiscated and destroyed legal documents pertaining to his active post- conviction relief ("PCR") cases, [1] 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.

         These 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 [53] 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 privilege. Id.
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 [53] 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 deadlines. Id.
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 ...

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