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Nguyen v. Kelly

United States District Court, D. Oregon

March 13, 2019

SUPERINTENDENT KELLY, et al., Defendants,


          Jolie A. Russo United States Magistrate Judge

         Plaintiff, formerly an inmate at the Oregon State Penitentiary (OSP), brings this civil rights action pursuant to 42 U.S.C. § 1983. All parties have consented to allow a magistrate judge to enter final orders and judgment in this case in accordance with 28 U.S.C. § 636(c). Currently before the Court is defendants' unopposed Motion to Dismiss (ECF No. 15). For the reasons set forth below, this Court grants defendants' motion.


         Plaintiff brings this action against OSP Superintendent Brandon Kelly, Eastern Oregon Correctional Institution (EOCI) Superintendent Brigitte Amsberry, EOCI hearings officer Heather Nevil, EOCI correctional sergeant Gary Longhorn, and EOCI correctional counselor Kari Key. PL's Compl. (ECF No. 1) at 3. Plaintiffs sole claim for relief provides as follows:

I have or will be incarcerated for several more days than I should be due to negligence and malicious intent of administrative staff. A hearing for rule violation was postponed so the hearings officer could coach the officer writing the violation into how exactly to rewrite the write-up (hearings officer is supposed to be neutral) which resulted in the hearings [officer's] findings occurring in a whole other 6-month review period, resulting in the additional loss of good time that I would have kept had the violation been either written correctly (the first time it was filled with fictional abnormalities) or the investigation not been tampered with by the hearings officer. This occurred on or about May 1, 2017 . . . . The effects of this are ongoing until my release May 20, 2018.

PL's Compl. at 4. Plaintiff seeks $1, 000 for each day he was incarcerated beyond his "rightful incarceration time or whatever is customary." Id. at 6.

         Defendants argue that plaintiff fails to state an Eighth Amendment claim because he has not alleged his sentence was grossly disproportionate to his crime and, if the Complaint is construed as raising a due process violation, the claim fails as a matter of law. Defendants also argue that plaintiff has failed to allege defendants Kelly, Amsberry, or Key were personally involved in the alleged constitutional violation and, in any event, plaintiffs claim is barred by the favorable termination rale of Heck v. Humphrey, 512 U.S. 477, 486-87 (1992). Finally, defendants contend that plaintiff cannot bring a pendent state claim for negligence. Plaintiff has filed no opposition.


         In order to state a claim, a plaintiff must allege facts which, when accepted as true, give rise to a plausible inference that the defendants violated the plaintiffs constitutional rights. Ashcroft v. IqbaL 556 U.S. 662, 678 (2009); Bell Ati. Corp. v. Twomblv, 550 U.S. 544, 556-57 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

         Iqbal. 556 U.S. at 678; Moss v. U.S. Secret Serv.. 572 F.3d 962, 969 (9th Cir. 2009). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678 (internal quotations omitted). Plaintiff is proceeding pro se, and therefore this Court construes his Complaint liberally and affords plaintiff the benefit of any doubt. Erickson v. Pantos, 551 U.S. 89, 94 (2007).


         Plaintiffs Complaint challenges both the delay of his disciplinary hearing and the hearings officer's conduct in coaching a correctional officer on how to rewrite plaintiffs misconduct report. Although not cited by either party, plaintiffs contention that he was denied earned time credits because his disciplinary hearing occurred "in a whole other 6-month review period" implicates OR, ADMIN, R. 291-097-0240, governing the calculation and application of earned time credits. Pursuant to that rule, an inmate will receive earned time credits if he demonstrates both "case plan compliance" and "institution conduct compliance" during each six-month review period. OR. ADMIN. R. 291-097-0240(1) & (2) (emphasis added), The institutional conduct component requires the inmate be free of Level I or Level II misconduct during the relevant six-month review period. OR. ADMIN. R. 291-097-0240(2). Notably, "[w]hen determining whether an inmate engaged in misconduct during the review period, "[t]he date of the adjudication, not of the incident, [is] used for the date of the violation." Id. (emphasis added). Hence, a delay in a disciplinary hearing can cause an inmate to lose the opportunity to accrue earned time credits for a six-month review period different from the period in which his misconduct occurred.

         I. Failure to State a Claim

         Defendants move to dismiss plaintiffs claim to the extent it is based on the Eighth Amendment because he has not alleged facts supporting a reasonable inference that his prison sentence was grossly disproportionate to the crime for which he was convicted. This Court agrees plaintiff has failed to state an Eighth Amendment claim because he has not alleged facts to support a reasonable inference that the denial of the opportunity to earn "several days" of earned time credits resulted in a sentence that was grossly disproportionate to the severity of his offense. See Snaman v. Thornbwgh, 956 F.2d 275, at *3 (9th Cir. Feb. 25, 1992) (holding that a disciplinary sanction of the loss of 100 days good time credits did not violate the Eighth Amendment); Martin v. City of Boise, 902 F.3d 1031, 1046 (9th Cir. 2018) (holding that the Eighth Amendment proscribes punishment grossly disproportionate to the severity of the crime); see also Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (holding that "the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison"). Although the Ninth Circuit has held that "[d]etention beyond the termination of a sentence could constitute cruel and unusual punishment if it is the result of deliberate indifference to the prisoner's liberty interest," plaintiff does not allege he was detained beyond his properly calculated release date. Rather, he alleges that ...

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