United States District Court, D. Oregon
OPINION AND ORDER
A. Russo United States Magistrate Judge
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
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.
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.
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
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).
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.
Failure to State a Claim
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 ...