United States District Court, D. Oregon
OPINION AND ORDER
Aiken United States District Judge
an inmate at Oregon State Penitentiary, filed suit pursuant
to 42 U.S.C. § 1983 alleging violations of his federal
due process rights. Defendants now move for summary judgment
on all claims under Federal Rule of Civil Procedure 56. For
the reasons set forth below, defendants' motion is
granted, and this action is dismissed.
August 9, 2015, plaintiff was in the food line at Eastern
Oregon Correctional Institution when a verbal dispute arose
over plaintiffs perceived request for certain food items.
Correctional Officer Pope wrote a Misconduct Report alleging
that plaintiff committed the major rule violations of
Disrespect I and Disobedience of an Order I. Nofziger Decl.
¶ 4 & Att. 2 at 3. On August 13, 2015, Hearings
Officer Powell conducted a disciplinary hearing. Plaintiff
acknowledged his receipt of the Misconduct Report and
indicated that he understood his rights. Id. ¶
7 & Att. 2 at 1. Officer Powell found that the evidence
did not support the charges of Disrespect I and Disobedience
of an Order I and instead found that plaintiff committed the
lesser violations of Disrespect II and Disobedience of an
Order II. Id. Officer Powell recommended sanctions
of five days in disciplinary segregation and seven days of
"loss of privileges," which were approved.
Id. Att. 2 at 2; see also Att. 3 at 10
("loss of privileges" includes loss of
"designated leisure time activities" and mandates
confinement to the prisoner's cell area "except for:
meals, call-outs, work assignments, assigned educational,
professional and/or technical training classes, and
visits" and one "worship service" per week).
Plaintiff had been housed in disciplinary segregation since
August 9, and he was released on the same day as the hearing.
Id. At ¶ 7.
sought review and investigation of the disciplinary
sanctions, and Executive Assistant Ron Miles informed
plaintiff that his request had been denied in accordance with
relevant administrative rules. Nofziger Decl. Att. 3 at 11,
16-18. Miles also informed plaintiff that he "found no
procedural or administrative errors." Id. Att.
3 at 11.
November 9, 2015, the Inspector General's office received
a letter from plaintiff requesting administrative review.
Id. Att. 3 at 2.
November 10, 2015, Connie Barnett, an Office Specialist,
informed plaintiff that his case was not subject to
administrative review due to the level of his violations.
Id. Att, 3 at 1.
February 2016, plaintiff again requested an investigation and
dismissal of his disciplinary violations. Nofziger Decl. Att.
5 at 2-3. On April 26, 2016, Assistant Director Michael Gower
responded and stated, "There is no information you were
able to provide that demonstrates an injustice occurred and
the above cases should be vacated. We reviewed the finding
and found that the hearings officer sanctions were
appropriate." Id. Att, 5 at 1.
October 25, 2017, plaintiff filed the instant action.
alleges three claims for relief. In Claim One, plaintiff
alleges that Officer Pope submitted false allegations in the
Misconduct Report and that Hearings Officer Powell made
improper credibility findings and denied plaintiffs requests
to interview witnesses, thus denying plaintiff access to
evidence in violation of his federal constitutional right to
procedural due process. In Claim Two, plaintiff alleges that
Miles, Barnett, Gower, former EOCI Superintendent Rick
Coursey, Assistant Superintendent T. Lemen, and former
Inspector General Leonard Williamson had an administrative
duty to investigate and correct the improper disciplinary
process, and their refusal to do so deprived plaintiff of his
right to procedural due process. In Claim Three, plaintiff
alleges that Officer Pope's false allegations, along with
the unfair disciplinary process and the denial of
disciplinary appeals, caused plaintiff emotional distress and
constituted deliberate indifference in violation of the 8th
and 14th Amendments. Am, Compl. At 9-10 (ECF No
argue that plaintiffs claims are untimely, and alternatively,
that they fail on the merits. To prevail on their motion for
summary judgment, defendants must show that there is no
genuine dispute as to any material fact and defendants are
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The court must construe the pleadings and evidence and all
reasonable inferences in the light most favorable to
plaintiff. Torres v. City of Madera, 648 F.3d 1119,
1123 (9th Cir. 2011)S.
that plaintiffs claims are likely barred by the relevant
two-year statute of limitations. Sain v. City of
Bend, 309 F.3d 1134, 1139 (9th Cir. 2002). Defendants
allegedly violated plaintiffs due process rights before and
during the disciplinary hearing on August 13, 2015, and
plaintiff did not file suit until October 25, 2017. While
plaintiff is correct that the limitations period is tolled
while a prisoner seeks administrative review of a
disciplinary hearing, plaintiff was not entitled to
administrative review because of the minor level - Level 4 -
of his violations. See Nofziger Deck Art. 2 at 1;
Or. Admin R. 291-105-0085(1) ("Any order for rule
violations on Level I or Level II of the major violation grid
or, which recommends an extension of the inmate's parole
release date or retraction of earned time, statutory good
time or extra good time credits; or which recommends a
deviation from the segregation sanction listed on the grid is
subject to review by the Inspector General.").
Regardless, I find that plaintiffs due process and deliberate
indifference claims lack merit.
inmates who receive a major misconduct report have the right
to a disciplinary hearing. See Or. Admin. R.
291-105-0026(1). Nonetheless, a prisoner is entitled to
federal due-process protections only when a
prison-disciplinary action "implicates a protected
liberty interest in some 'unexpected matter' or
imposes an 'atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life."' Serrano v. Francis,345 F.3d 1071,
1078 (9th Cir. 2003) (quoting Sandin v. Conner, 515
U.S. 472, 484 (1995)). When a protected liberty interest is
implicated, a prisoner is entitled to: 1) advance written
notice of the charges and the evidence to be presented; 2) an
opportunity to present documentary evidence and witnesses; 3)
legal assistance if the charges are complex or the inmate is
illiterate; 4) a written statement describing the reasons for