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Monro v. Kelly

United States District Court, D. Oregon

September 13, 2019

BRANDON KELLY, et al., Defendants.



         Plaintiff Shawn Monro (“Monro”) filed this action under 42 U.S.C. § 1983, alleging that four Oregon Department of Corrections (“ODOC”) employees (collectively, “Defendants”) violated his constitutional rights and Oregon state law during his inmate disciplinary proceedings.[1] Defendants move for summary judgment on all claims. SeeFed. R. Civ. P. 56(a). The Court has jurisdiction over this matter under 28 U.S.C. § 1331. For the reasons explained below, the Court recommends that the district judge grant Defendants' motion for summary judgment.


         Monro is an Oregon inmate currently housed at the Snake River Correctional Institution (“SRCI”). (Decl. of Jeremy Nofziger (“Nofziger Decl.”) ¶ 10, ECF No. 70.) In February 2017, Leddy, an inspector with ODOC's Special Investigations Unit (“SIU”), issued Monro a misconduct report for possessing drugs, distributing drugs, and unauthorized use of an information system while housed at the Oregon State Penitentiary (“OSP”). (Nofziger Decl. ¶ 11; Nofziger Decl. Attach. 3.) The report alleged that Plaintiff conspired with another inmate to smuggle methamphetamine and suboxone into OSP. (Nofziger Decl. Attach. 3.) Leddy's misconduct report was based on her own investigation, as well as statements from a confidential informant. (Nofziger Decl. ¶¶ 13-14; Nofziger Decl. Attachs. 4-5.)

         Nofziger, an ODOC hearings officer, convened a disciplinary hearing on or about March 7, 2017. (Nofziger Decl. ¶¶ 1, 15.) During the hearing, Monro acknowledged receiving a copy of Leddy's misconduct report, a notice of inmate rights, and ODOC's rules of prohibited conduct. (Nofziger Decl. ¶ 15; Nofziger Decl. Attach. 6.) Monro denied the charges, asked to submit negative urinalysis tests, and complained about his inability to confront the confidential informant or review the confidential information Leddy acquired during her investigation. (Nofziger Decl. Attach. 6.) At the hearing, Nofziger explained to Monro that (1) his negative urinalysis tests would not disprove that he was selling drugs; (2) he was entitled to a summary of the confidential information Leddy acquired during her investigation but providing a confidential informant's name or specific statement would create a threat to the safety and security of the facility; and (3) under the rules of prohibited conduct, “[i]f an inmate attempts or conspires to commit . . . prohibited conduct, ” it is “considered the same as if the inmate had completed the act.” (Nofziger Decl. Attach. 6.) Nofziger also read into the record portions of Leddy's report and transcripts of Monro's and the fellow inmate's telephone calls, which suggested that they were conspiring with others to bring drugs into the facility. (Nofziger Decl. Attach. 6.)

         Later that day, Nofziger reconvened the hearing after speaking to Monro's alleged co-conspirator.[2] (Nofziger Decl. ¶ 17; Nofziger Decl. Attach. 7.) Nofziger gave Monro another opportunity to provide information in support of his defense. (Nofziger Decl. ¶ 17; Nofziger Decl. Attach. 7.) After considering the testimony and record evidence, Nofziger determined that Monro “conspired with another inmate to bring drugs into the prison to sell it and thereby violated Rule 1.15 (Drug Possession), Rule 4.10 (Distribution), Rule 4.35 (Racketeering), and Rule 1.25 (Unauthorized Use of Information System 1).” (Nofziger Decl. ¶ 18; Nofziger Decl. Attach. 7.) Nofziger recommended “a disciplinary sanction of 120 days in disciplinary segregation, loss of privileges for 14 days upon release from [disciplinary segregation], basic visitation for 730 days upon return to general population, and a $100 disciplinary fine.” (Nofziger Decl. ¶ 19.) One week later, Kelly, OSP's superintendent, approved Nofziger's Finding of Fact, Conclusion, and Order. (Nofziger Decl. Attach. 3.)

         The following month, ODOC's inspector general received Monro's petition for administrative review. (Nofziger Decl. ¶ 22; Nofziger Decl. Attach. 8.) The Inspector General determined that Nofziger reviewed Monro's case in accordance with the rules of prohibited conduct, Nofziger's findings were “based upon a preponderance of the evidence, ” and Nofziger imposed an appropriate sanction. (Nofziger Decl. Attach. 8.)



         Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted).


         Defendants move for summary judgment on all claims. Defendants argue that they are entitled to summary judgment because: (1) Monro cannot establish that Defendants violated his procedural or substantive due process rights; (2) Monro cannot establish that Plante or Leddy participated in the alleged deprivation of Monro's Fourteenth Amendment rights; (3) the Fifth and Sixth Amendments do not apply to inmate disciplinary proceedings; (4) Monro fails to allege that he engaged in any protected conduct and thus fails to state a retaliation claim; (5) Defendants are entitled to qualified immunity from § 1983 damages; and (6) the Eleventh Amendment bars, and Monro has failed to state, a negligence claim.

         A. Substantive Due Process

         Monro disputes that he committed the ODOC rule violations described above and asserts that his disciplinary proceedings violated his substantive due process rights. Substantive due process requires only that “some evidence” supports a prison disciplinary decision. SeeWilliams v. Thomas, 492 Fed.Appx. 732, 734 (9th Cir. 2012) (“Substantive due process requires that there be ‘some evidence in the record' supporting the decision by the prison[.]”) (citation omitted); Requena v. Roberts, 650 Fed.Appx. 939, 940 (10th Cir. 2016) (“[T]he evidentiary standard a prison must satisfy in a disciplinary proceeding is minimal-a prison comports with due process so long as there is ‘some evidence' supporting its decision.”). When a prison hearing officer relies on a confidential informant's statement, due process requirements are satisfied if the record contains (1) “some factual information from which the [officer] can reasonably conclude that the information was reliable, ” and (2) “a prison official's affirmative statement that safety considerations prevent the disclosure of the informant's name.” ...

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