United States District Court, D. Oregon
OPINION AND ORDER 
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE.
filed a motion asking the Court to dismiss Plaintiff's
fourth claim (against Defendant Deacon) and to strike his
entire complaint with prejudice and enter judgment in favor
of defendants as a sanction. The Court heard oral argument on
this matter April 9, 2019. The Court ruled that day that it
would not strike the entire complaint as a sanction and that
Plaintiff's Third Claim for Relief (Against Defendant
Olvera) remained a viable claim. The Court instructed the
parties that Plaintiff's Third Claim would continue
through the adjudicative process, along with two other cases
filed by Plaintiff which have been stayed pending disposition
of the present motion. See Evans v. Myrick et al.,
No. 2:16-cv-00928; and Evans v. Gower et al., No.
2:17-cv-00162. Parties were instructed to confer and to file
a scheduling order after the Court ruled on this matter. For
the reasons that follow, Plaintiff's Fourth Amended
Complaint remains viable; the Third Claim for Relief
survives, but Plaintiff's Fourth Claim (Against Defendant
Deacon) is dismissed with prejudice.
history of this case has been recounted multiple times over
the eight years since it was filed. The following summarizes
facts and history pertinent to the present issue. Plaintiff
is an inmate in custody of the Oregon Department of
Corrections (“ODOC”). Fourth Am. Compl. ¶ 1,
ECF No. 310. Over the course of this litigation, Plaintiff
has filed multiple complaints and numerous pro bono
attorneys have been appointed for limited assistance,
including aiding Plaintiff in filing complaints. See
e.g., ECF Nos. 47, 50, 54, 58, 212, 229, 273.
December 7, 2011, Plaintiff filed a grievance against
Defendant Olvera for denying access to a typewriter in the
law library while he was in the custody of the Oregon
Department of Corrections at Two Rivers Correctional
Institution in Umatilla, Oregon. Fourth Am. Compl. ¶ 8,
ECF No. 310. Plaintiff alleged that, in retaliation against
the grievance, Defendant Olvera willfully, maliciously, or
with indifference to Plaintiff's rights, filed a false
disciplinary report against the Plaintiff. Id. at
January 31, 2012, a misconduct report involving an incident
with another inmate was filed against the Plaintiff.
Id. at ¶ 20. Plaintiff denied the charges and
proceeded to disciplinary hearings. Id. at
¶¶ 20-22. According to Plaintiff, Hearing Officer
Deacon denied him access to exculpatory witness and videotape
evidence. Id. at ¶¶ 21-24. Plaintiff was
found guilty of the charges against him and spent thirty days
in disciplinary segregation before being transferred to the
Snake River Correctional Institute's Administrative
Segregation Unit (“ASU”) for another 654 days.
Id. at ¶¶ 23-26.
Third Amended Complaint, Plaintiff alleged, inter
alia, a retaliation claim against Defendant Olvera
(Third Claim) and due process violations against Defendant
Deacon for denying Plaintiff the ability to present evidence
regarding an extortion charge at the disciplinary hearing in
January, 2012 (Fourth Claim). Third Am. Compl., ECF No. 75;
and see Op. and Order 19-22, 23-26, ECF No. 226. On
January 20, 2015, this Court granted summary judgment in
favor of Plaintiff as to liability on the due process claim
against Defendant Deacon but granted summary judgement in
favor of Defendant Olvera on Plaintiff's Third Claim. Op.
and Order 31, ECF No. 226. Judge Stewart's opinion stated
that although Plaintiff was entitled to summary judgment as
to liability, he may well have suffered no harm as a result
of the due process violation involving the extortion charge,
given that he was also found guilty of other misconduct
charges. Id. at 25. The Court noted that the
appropriate remedy for the violation was not at issue during
the summary judgment stage. Id. On February 23,
2015, Judge Stewart referred the parties to mediation to
resolve the Fourth Claim, pursuant to Local Rule 16-4. Order,
ECF No. 230.
March 2, 2015, Plaintiff, acting pro se, filed a
Motion for Reconsideration of Judge Stewart's order from
January 20, 2015, which he titled “Motion to Alter or
Amend Judgement [sic].” ECF No. 235. Plaintiff argued
that the Court failed to appreciate that his Fourth Claim for
Relief involved retaliation on the part of Defendant Deacon,
and that Plaintiff should have been granted declaratory
relief, and damages for time incurred at ASU as a result of
Defendant Deacon's withholding of exculpatory evidence.
Id. at 9-10. On March 5, 2015, Judge Stewart ordered
a stay of Plaintiff's motion pending the completion of
mediation. ECF No. 236.
next filed a Motion for Leave to File Fourth Amended
Complaint. ECF No. 242. Plaintiff sought specifically to
include a retaliation claim related to his stay in the ASU.
Id. The Court stayed this motion as well, again
“pending completion of mediation.” Order, ECF No.
243. Both Plaintiff's Motion for Reconsideration and
Motion for Leave to File Fourth Amended Complaint contested
Plaintiff's transfer from Snake River Correctional
Institute to Snake River's ASU.
parties attended their first mediation session on May 28,
2015. See ***NON-PUBLIC***Remark/Staff Notes;
Mediator report filed May 29, 2015. After that first session,
the parties agreed to return to mediation to attempt to
settle all claims, including those claims as yet unpled by
Plaintiff, which Plaintiff alleged related to the extended
stay in the ASU. Id.
Plaintiff agreed to return to mediation, on June 4, 2015 he
filed a “Revised Motion for Reconsideration of Order on
Motion to Dismiss and Order on [M]otion for [S]ummary
[J]udgment [ECF No.] 226. ECF No. 246. The Court also stayed
this motion, pending mediation. ECF No. 247.
October 5, 2015, after a second mediation session, the
parties placed a settlement on the record regarding
Plaintiff's Fourth Claim for Relief; specifically, the
mediator stated that:
[t]he settlement finally resolves Mr. Evans' fourth claim
for relief against Defendant Deacon (the claim involving a
denial of the opportunity to present evidence at a
disciplinary hearing, and subsequent detention in
disciplinary segregation for approximately 30 days). The
settlement does not affect Mr. Evans' other claims for
relief-claims which Judge Stewart dismissed on summary
judgement but on which which [sic] Mr. Evans has filed
motions for reconsideration.
entry October 5, 2015 ***NON-PUBLIC***Remarks/Staff
Notes. Two days later, the Court lifted the stays
previously ordered. Order, ECF No. 248. The Court also denied
Plaintiff's Motion for Leave to File Fourth Amended
Complaint (Order, ECF No. 249), with leave to renew as