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Peterson v. Mickles

United States District Court, D. Oregon

January 14, 2020

JESSICA PETERSON, Plaintiff,
v.
EDGAR MICKLES, MARSHA MCCORKHILL, CPT. ALANA BRUNS, LESTER A. KISER, ROB PERSSON, LISA HALL, FORREST LYONS, BOB K. NELSON, CO AMANDA RASMUSSEN, and DENNIS CASWELL, in their personal capacities; JOHN DOE 1-12; JANE DOES 1-12, Defendants.

          Leonard R. Berman, 9220 SW Barbur Boulevard, Suite 119, Box 180, Portland, Oregon 97219. Attorney for Plaintiff.

          Ellen F. Rosenblum, Attorney General; Jessica B. Spooner, Assistant Attorney General; and Michael R. Washington, Senior Assistant Attorney General; Oregon Department of Justice, 1162 Court Street NE, Salem, Oregon 97301-4096. Attorneys for Defendants.

          OPINION AND ORDER

          Karin J. Immergut United States District Judge

         Plaintiff Jessica Peterson filed constitutional tort claims against current and former officials at the Coffee Creek Correctional Facility (“Coffee Creek”), where she was previously incarcerated. Plaintiff alleges that Defendants McCorkhill, Bruns, Kiser, Persson, Hall, Lyons, Nelson, Rasmussen, and Caswell (“State Defendants”) violated the Prison Rape Elimination Act (“PREA”) and the Eighth and Fourteenth Amendments by failing to supervise (claim two) and investigate (claim three) prison staff, and by failing to provide treatment and care for Plaintiff after she was a victim of sexual abuse (claim four).[1]

         Plaintiff and State Defendants filed cross-motions for summary judgment on these claims, and the Court held a hearing on December 6, 2019. At the hearing, Plaintiff was represented by Leonard Berman, and State Defendants were represented by Michael Washington. As stated on the record at the hearing, the Court granted State Defendants' motion for summary judgment on the third claim, which Plaintiff had conceded fails as a matter of law. See ECF 73 at 4. The Court also denied Plaintiff's motion for partial summary judgment and took State Defendants' motion on the second and fourth claims under advisement. See ECF 82. As discussed in this opinion and order, the Court now grants State Defendants' motion for summary judgment on the second and fourth claims because there are no genuine issues of material fact remaining for trial and on the basis of qualified immunity.

         STANDARDS

         A. Summary Judgment

         Under Rule 56, a party is entitled to summary judgment if the “movant shows that 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). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Furthermore, the party cannot rely on the pleadings to create a “genuine” dispute under Rule 56. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Id. at 252, 255. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita, 475 U.S. at 587 (citation and quotation marks omitted).

         B. Qualified Immunity

         “The doctrine of qualified immunity protects government officials from liability for civil damages.” Wood v. Moss, 134 S.Ct. 2056, 2066-67 (2014); Krainski v. Nevada ex. Rel. Bd. of Regents, 616 F.3d 963, 968 (9th Cir. 2010). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Whether qualified immunity can be invoked turns on the ‘objective legal reasonableness' of the official's acts. And reasonableness of official action, in turn, must be ‘assessed in light of the legal rules that were clearly established at the time [the action] was taken.'” Ziglar v. Abbasi, 137 S.Ct. 1843, 1866 (2017) (citation omitted) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982) and Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “The privilege is an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quotation marks omitted) (emphasis in original). For this reason, the Supreme Court has “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). Qualified immunity, however, is only an immunity from suit for damages, it is not an immunity from suit for declaratory or injunctive relief. See L.A. Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993).

         FACTUAL RECORD

         A. Preliminary Matters

         Before summarizing the factual record, this Court must address four issues about its scope. First, Plaintiff seeks leave to file her own declaration over two months after the deadline. Second, Plaintiff has submitted excerpts from a deposition without including any certification from the reporter. Third, State Defendants have raised various objections to Plaintiff's evidence. Fourth, Plaintiff asks this Court to take judicial notice of other incidents at Coffee Creek.

         1. Peterson Declaration

         In briefing on the cross-motions for summary judgment, Plaintiff cited her own declaration. See ECF 72 at 2 (“Plaintiff alleges in her declaration that . . . ‘16. Officer Nelson walked in on us on one occasion and did not report it to anyone.'”); ECF 73 at 4-5 (“Her declaration attests to her being prohibited from discussing her violations with counselors, staff, fellow inmates and being isolated from the general population and punished for her victimhood.”). But as State Defendants noted in reply, no such declaration was filed. See ECF 75 at 5. Indeed, State Defendants moved to strike Plaintiff's references to this declaration. Id.

         The deadline for Plaintiff's briefing on the cross-motions-after the Court granted two extensions-was October 1, 2019. ECF 63; ECF 68. On December 6, 2019, less than two hours before oral argument, Plaintiff filed her declaration, which did not include a motion or any other explanation for the delay. Decl. of Jessica Peterson (“Peterson Decl.”), ECF 79. The declaration also bears a typed, rather than handwritten, signature. See Id. at 2-3. Considering State Defendants' objections to the untimely declaration, this Court allowed both parties to submit briefing on whether it should be considered as part of the record for summary judgment. See ECF 82. That motion for extension of time is now before the Court.[2] ECF 80; ECF 87.

         In support of the motion, Plaintiff's attorney submitted his own declaration, in which he explained that ongoing chronic health issues have “hampered [his] cognitive abilities and posed a challenge to [his] practice.”[3] ECF 81 at ¶ 3. He also stated that he did not realize that the declaration had not been filed until an hour before the hearing, id. at ¶ 4, despite the State Defendants' motion to strike, raising this issue in their September 30, 2019 reply brief, ECF 75 at 5. In addition, he declared:

Most all the recitations, if not all, in the declaration are known to defendants and this inadvertent late filing does not prejudice their defense of the matter. In fact, they read the declaration at oral argument and did not indicate any new information therein, nor the need for additional [sic] to respond to its factual contents.

ECF 81 at ¶ 5. Nevertheless, State Defendants object, arguing that the declaration from Plaintiff's attorney does not establish good cause in light of their briefing, which made clear in September that no declaration was filed. See ECF 87 at 4. State Defendants also object because Plaintiff's declaration lacks a handwritten signature. See id.

         Local Rule 11-1(a) permits electronic filing of documents with typed signatures, but that rule cross-references Local Rules 5-13 and 10-3. Read together, these rules indicate that in this district, electronically signed documents can satisfy the requirements of 28 U.S.C. § 1746, concerning unsworn declarations under penalty of perjury. See L.R. 5-13, 10-3(c), 11-1(a). Counsel filing such a document must maintain the original version at least until the final disposition of the case. See L.R. 5-13(a). State Defendants observe correctly that upon request of the Court or another party, Local Rule 5-13(b) requires counsel to produce the version bearing the original signature. See ECF 87 at 4. However, the Court has not ordered Plaintiff's attorney to provide the document for review, and State Defendants have not indicated that they have requested it, either. See Id. Thus, the lack of an original signature on Plaintiff's declaration is not fatal here.

         However, local rules also require parties to raise objections to court-imposed deadlines by motion and show, among other requirements, “good cause why the deadlines should be modified.” L.R. 16-3(a). Whether the declaration from Plaintiff's attorney establishes good cause is a close call. See ECF 81. Plaintiff's declaration is dated April 15, 2019, and Plaintiff filed her motion for partial summary judgment on April 30, 2019. ECF 49; ECF 79. The fact that Plaintiff's attorney's illness intensified in June does not explain why he did not file Plaintiff's declaration before that time. See ECF 81 at ¶ 3.

         Nevertheless, given the strong policy of resolving issues on their merits, Plaintiff's motion for an extension of time to file her declaration is granted. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259-60 (9th Cir. 2010) (discussing “the general purpose of seeing that cases are tried on the merits” (citation omitted)). This Court observes that quotations from Plaintiff's declaration appear verbatim in her briefing. Compare ECF 72 at 2, with ECF 79 at ¶ 16. Furthermore, State Defendants have not identified any way in which they would be prejudiced from consideration of the declaration. See ECF 87 at 5 (“Nothing in Plaintiff's declaration creates a genuine issue of material fact as to State Defendants' arguments in their Motion for Summary Judgment.”). Accordingly, the Court will consider Plaintiff's declaration as part of the record on the pending motion for summary judgment.

         2. Nelson Deposition

         With her motion for partial summary judgment, Plaintiff submitted excerpts from a December 4, 2018 deposition of Defendant Nelson. Dep. of Robert Nelson (“Nelson Dep.”), ECF 50-1. The excerpts were an exhibit to a declaration from Plaintiff's attorney, in which he states that they are a true and accurate copy of the original. ECF 50. However, the excerpts do not include a signed certification from the reporter. See Nelson Dep., ECF 50-1. Thus, the deposition excerpts are inadmissible. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002) (“It is insufficient for a party to submit, without more, an affidavit from her counsel identifying the names of the deponent, the reporter, and the action and stating that the deposition is a ‘true and correct copy.'”). They may not be considered as part of the record on the pending motion. See Id. at 773.

         3. Evidentiary Objections

         State Defendants have raised three evidentiary objections related to the pending summary judgment motion. Among these objections are two “motions to strike, ” which the Court treats as evidentiary objections. See ECF 75 at 3, 5; L.R. 56-1(b) (requiring evidentiary ...


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