Opinion
Civil 3:18-cv-00153-AC
08-03-2021
RICHARD FERRY, Plaintiff, v. KEVIN DOOHAN, Washington County Community Corrections WCCC Post-Prison Supervision Officer PPO; JOE SIMICH, WCCC, Director; MICHAEL WU, Oregon Board of Parole and Post-Prison Supervision BPPPS Chair; BROOKE VICE, WCCC PPO; NELLIE MCDONALD, WCCC PPO; and JOHN and JANE DOES 1-20, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the court are a Motion for Summary Judgment (ECF No. 107) filed by Defendants Doohan, McDonald, Simich, and Vice (referred to hereafter as the "County Defendants") and a Cross-
Motion for Summary Judgment (ECF No. 116) filed by Plaintiff. For the reasons that follow, the County Defendants' Motion should be GRANTED, Plaintiffs Cross-Motion should be DENIED, and this action should be dismissed.
PROCEDURAL BACKGROUND
The underlying procedural background of Plaintiff s claims is set forth in the court's August 13, 2018, Findings and Recommendation (ECF No. 40), and will not be repeated here. In that Findings and Recommendation, the court recommended that Defendant Wu's Motion for Summary Judgment be granted, that the County Defendants' Motion to Dismiss be granted as to all of Plaintiffs claims except Plaintiffs claim that the County Defendants retaliated against Plaintiff for filing this action, and that Plaintiff should be required to show cause why his claims against Defendants John and Jane Does 1-20 should not be dismissed. On January 3, 2019, District Judge Marco A. Hernàndez issued an Order (ECF No. 54) adopting the Findings and Recommendation. Judge Hernàndez dismissed Plaintiffs claims against Defendant Wu with prejudice. On April 8, 2019, Judge Hernàndez issued an Order (ECF No. 66) dismissing Defendants John and Jane Does 1-20 from this action.
Thus, the sole remaining claim before this court is Plaintiffs claim that the County Defendants retaliated against him and attempted to chill his First Amendment right to file this action by requiring Plaintiff to restart mandatory sex offender counseling ("treatment") in breach of an alleged agreement among the parties that Plaintiff would not be required to restart treatment until after he recovered from back, neck, and shoulder injuries. The County Defendants contend summary judgment in their favor is appropriate because there is no evidence, and thus no genuine issue of material fact, that Officer Doohan or Director Simich acted in any way to retaliate against Plaintiff, and that, as to Officers McDonald and Vice, there is no causal connection between Plaintiff filing this action and Officer McDonald requiring him to restart treatment. The County Defendants further argue that they are entitled to qualified immunity. Plaintiffs Cross-Motion for Summary Judgment asserts that he is entitled to relief on his retaliation claim because it was not until after Judge Hernàndez issued a Temporary Restraining Order that Officer McDonald required Plaintiff to restart treatment despite the parties' alleged agreement.
Plaintiff devotes the vast majority of his Memorandum in Support of his Cross-Motion for Summary Judgment to his claim that the County Defendants violated his Fifth Amendment right against self-incrimination by requiring him to undergo polygraph examinations. That claim, however, was dismissed by Judge Hernàndez's January 3, 2019, Order. Accordingly, Plaintiffs arguments on that claim are not addressed here. Plaintiff also states, "[f]urther, there are multiple instances of retaliation that occurred immediately following, and as a direct result of Plaintiff filing other requests for relief from the Court." Any claims outside the limited issue set forth above, however, are not properly before this court as they are not alleged in the Amended Complaint and, in any event, the alleged additional incidents of retaliation were the subject of Plaintiff's Complaint in Ferry v. Doohan, Case No. 3:18-cv-01891 -HZ, which was dismissed with prejudice. As such, the principles of res judicata prohibit re-litigation of those claims in this action. See Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005).
The facts are derived from the numerous declarations submitted by Defendants and the exhibits thereto, including excerpts of a deposition of Plaintiff, as well as a 116-page Declaration submitted by Plaintiff.
Plaintiff was first ordered to attend sex offender treatment at Oregon Center for Change ("OCC") by Defendant Doohan in 2017. Declaration of Kimberly Stuart ("Stuart Decl."), ECF No. 112, Exh. 23. After his initial assessment in May 2017, he attended group sessions and exhibited patterns of engaging in group therapy to "express his beliefs about being treated unfairly by the system." Declaration of Diana Groener ("Groener Decl."), ECF No. 111, Exh. 21, p. 1.
In the following weeks, Plaintiff continued to be disruptive during group therapy. Groener Decl., ¶ 2. Plaintiff missed his group therapy session on August 8, 2017. Groener Decl., Exh. 21, p.
1. Plaintiffs last group session was August 15, 2017. Groener Decl., Exh. 21, p. 1.
As of August 2, 2017, Dr. Manuel Karlin was treating Plaintiff for back, neck, and left shoulder pain. Declaration of Manuel Karlin ("Karlin Decl."), ECF No. 108, ¶ 2. On or about August 14, 2017, Dr. Karlin's office received a request from Plaintiff for a note to his probation officer to say that he could not attend appointments scheduled by the probation officer due to back pain. Karlin Decl., ¶ 2, Exh. 1, pp. 2-4. Plaintiffs primary issue was whether he could bicycle to the appointments as he did not have any other mode of transportation. Karlin Decl., Exh. 1, p. 2. Dr. Karlin issued a note dated August 16, 2017, requesting accommodations to reduce the frequency of Plaintiff s travel. Karlin Decl., ¶ 2, Exh. 1, p. 7.
On or about September 12, 2017, Plaintiff saw Dr. Karlin for the sole purpose of obtaining general letter to assist with his lack of ability to transport himself by bicycle because he did not have a car. Karlin Decl., ¶ 3, Exh. 1, pp. 6-7. Dr. Karlin issued a letter stating that Plaintiff should not travel by bicycle due to severe neck, shoulder, and back pain, and that the restriction would last and continue to be a problem until he underwent surgery on his back. Karlin Decl., ¶ 3. Exh. 1, pp.8-9.
On or about September 26, 2017, Plaintiff requested a more detailed letter regarding his back problem stating that he would not be able to see his probation officer for an undetermined time after his surgery. Karlin Decl., Exh. 1, ¶ 4, Exh. 1, pp. 9-10. Dr. Karlin informed Plaintiff that he would not be able to provide anything more than he had already done. Karlin Decl., ¶ 4, Exh. 1, pp. 9-10.
After September 29, 2017, Plaintiffs post-prison supervision transferred to Defendant Nellie McDonald. Declaration of Nellie McDonald ("McDonald Decl"), ECF No. 109, ¶ 2. McDonald met with Plaintiff in her office on October 16, 2017, and they discussed the benefits of completing sex offender treatment. McDonald Decl, ¶ 4. Plaintiff indicated he was engaged and doing fine with treatment at OCC prior to his medical issues, and that transportation continued to be a barrier. McDonald Decl., ¶ 4.
On October 31, 2017, Plaintiff underwent back surgery. Karlin Decl., ¶ 5. As of November 14, 2017, Plaintiff participated in daily walking and followed post-operative instructions. Karlin Decl., ¶6. In November 14, 2017, and December 18, 2017, Plaintiffs ability to move around and his reflexes were normal. Karlin Decl., ¶ 6. Based upon a review of Plaintiff s medical records, Dr. Karlin opined that there was no medical reason why Plaintiff could not attend sex offender treatment after his surgery on October 31, 2017. Karlin Decl., ¶ 5.
On November 13, 2017, McDonald, accompanied by Officer Marcus Ford, conducted a home visit with Plaintiff. McDonald Decl., ¶ 5. Plaintiff did not have a driver's license and was previously biking to town to take public transportation to his treatment. McDonald Decl., ¶ 5. Plaintiff was still recovering from back surgery and could not bike. McDonald Decl., ¶ 5. McDonald encouraged Plaintiff to obtain an Oregon driver's license to enable him to continue attending treatment on a regular basis. McDonald Decl., ¶ 5.
On December 11, 2017, McDonald met with Plaintiff and his wife for an office visit. McDonald Decl., ¶ 6. Plaintiff told McDonald that his recovery time from his back surgery was 4-6 weeks, which would have ended approximately mid-December. McDonald Decl., ¶ 6.
On January 2, 2018, Plaintiff requested a letter from Dr. Karlin describing limitations on significant activity. Karlin Decl., ¶ 5. Dr. Karlin's letter stated, inter alia, that Plaintiff was limited in terms of activities because of his surgery and ongoing shoulder pain, and that current limitations included "limited distance walking," the requirement of "assistance or someone else to drive for him and be available to help him with his activities of daily living." Karlin Decl., Exh. 1, p. 14. The letter concluded that Plaintiffs "ability to sustain any significant activity is limited to a few hours per day and sometimes less." Karlin Decl., Exh. 1, p. 14. Plaintiff did not mention to Dr. Karlin that he was required to take mandated sex offender treatment classes, and Dr. Karlin's letter did not address whether Plaintiff could physically attend a non-significant activity such as office visits or counseling. Karlin Dec. ¶ 5.
On January 5, 2018, McDonald again met with Plaintiff at her office. McDonald Decl., ¶ 7. McDonald told Plaintiff that she expected him to re-start sex offender treatment. McDonald Decl., ¶ 7. Due to concerns about his past experience in group therapy at OCC, McDonald suggested he contact OCC Director Dr. Jane Ward to discuss the possibility of individual sessions. McDonald Decl., ¶ 7. At no time did McDonald tell Plaintiff that he was not required to attend treatment or that he would be excused from treatment. McDonald Decl., ¶ 7. Plaintiff agreed to comply. McDonald Decl., ¶ 7. McDonald updated Plaintiffs action plan to note that Plaintiff would contact the OCC Director concerning treatment, which Plaintiff acknowledged and signed. McDonald Decl., Exh. 5, p. 1. That same day, McDonald contacted Dr. Ward to request a follow-up with Plaintiff and to schedule individual counseling sessions with him. McDonald Decl., ¶ 8.
On January 9, 2018, Diana Groener called Plaintiff to schedule his first individual treatment session. Groener Decl., ¶ 4. Plaintiff told Groener that he had an operation a month ago, was on disability, lived in North Plains, and had no easy transportation. Groener Decl., ¶ 4. Plaintiff refused to schedule an appointment and said he would talk to his parole officer. Groener Decl., ¶ 4.
On January 10, 2018, McDonald informed Plaintiff that Diana Groener was willing to conduct individual sex offender treatment sessions with Plaintiff. McDonald Decl., II 9, Exh. 7. McDonald also let Plaintiff know that because he had been able to make various medical appointments, she felt he was able to attend treatment sessions twice a month (instead of weekly). McDonald Decl., ¶ 9. She stated her willingness to work with him to convert office visits to home visits if that meant he could use that time to attend treatment instead. McDonald Decl., ¶ 9. In response, Plaintiff sent McDonald Dr. Karlin's January 2, 2018, letter. McDonald Decl., 119.
On January 25, 2018, Plaintiff filed his initial Complaint in this case, seeking injunctive relief prohibiting Defendants from requiring him to undergo a polygraph examination. On January 30, 2018, Plaintiff emailed McDonald to let her know that he had filed suit against Officer Doohan, Assistant Director Simich, Director Steve Berger, and Parole Board Chair Michael WU. McDonald Decl., ¶ 10, Exh. 4, p. 4. At that time, McDonald was not named as a Defendant.
On February 5, 2018, District Judge Hernàndez issued a Temporary Restraining Order ("TRO") enjoining Defendants from conducting a polygraph examination of Plaintiff until further notice. Order, ECF No. 5. The TRO was granted based upon Plaintiffs allegations that Doohan threatened Plaintiff with further jail time if Plaintiff refused to participate in the polygraph examination and also threatened further jail time if Plaintiff produced a "deceptive" polygraph result. Judge Hernàndez dissolved the TRO on March 6, 2018, and denied Plaintiff's Motion for Preliminary Injunction. Opinion and Order, ECF No. 22.
On February 12, 2018, McDonald met with Plaintiff for an office visit. McDonald Decl., ¶ 12. Because Plaintiff had not yet re-engaged with OCC, McDonald gave him a directive to do so by his next office visit in March. McDonald Decl., ¶ 9. Plaintiff argued that he was disabled and had no way to get to treatment. McDonald Decl., ¶ 9. McDonald informed him that he was still responsible for finding transportation to treatment as she knew he was attending medical and parole office appointments. McDonald Decl., ¶ 9.
On February 14, 2018, Plaintiff emailed McDonald's supervisor, Brooke Vice, regarding McDonald's February 12, 2018, directive to restart treatment or provide medical documentation to excuse him from participating in treatment. McDonald Decl., ¶ 13, Exh. 4, p. 5. On February 16, 2018, Plaintiffs wife requested that his March office visit with McDonald be moved from March 5, 2018, to March 12, 2018. McDonald Decl., Exh. 12, p. 2. McDonald agreed to do so, but informed Plaintiff that she still expected him to re-establish sex offender treatment by March 5, 2018. McDonald Decl., Exh. 12, p. 2. Plaintiff responded with a threat-laden email:
I am still medically, financially and physically unable to do it so I would say get ready to throw me in jail. I told you since you've got me cut off from my family that there are no resources available for me to use in Oregon. I haven't worked since I've been out of jail and have no money couldn't pay for those classes if I could go. I am not better physically to be able to make it there as the day I got operated on and just because Dr. you, Dr. Brooke or Dr. Joe say I'm better does not make it so. You have a Doctor's note specifically it says "His ability to sustain any significant activity is limited to a few hours per day and sometimes less." I am sure the court will think it is more than adequate.
The Doctor is not going to give me anymore notes. He thinks you guys are insane down there with your notes. I think you are going to be shocked what happens to you for putting me in jail because I am disable[d]. I offered you the option to set something up closer to where I live. I am working on a temporary restraining order to prevent you for throwing me in jail because of my incapacity so to advise
you I would say wait until you hear whether the court thinks I should go or not but that is up to you.
You were fine with me not going to center for change because of my incapacity before this lawsuit so anything you threaten to throw me in j ail right now over will look like retaliation but play it how you will. Maybe you guys are alright with throwing ppl in jail because they are sick and penniless but I betting the court won't think that is such a good thing. You deal with your demons however you need to. I already know it's against the law. Just like threatening to throw someone in jail for exercising their Fifth Amendment Rights but hey find out the hard way or ask your lawyer about it.
One thing you all forget down there . . . . Anything you demand of me is all optional you don't have to require it of me but you may. Look in my rules. I have more than adequate enough reason for you to make the right decision with regards to options for me but you seem to think the court needs to decide all this stuff these days I guess huh? Your helping my lawsuit.McDonald Decl., Exh. 12, p. 2.
In response, McDonald then reiterated her directive that Plaintiff still needed to start treatment by March 5, 2018, noting that that expectation was in place prior to the filing of Plaintiff s Complaint:
We discussed the importance of getting back into treatment prior to the restraining order . . . there is no current indication that you are physically unable to attend counseling every other week. Sitting in a counseling session is not considered significant physical activity. I am more than happy to submit a subsidy request for you to re-engage with treatment and I will also be staffing a family reunification which will enable you [to] access your support system. This will likely require a face to face meeting with all family members whom you are requesting contact, and the assistance of an interpreter. The purpose of attending treatment is to aid in your ultimate success on supervision and to provide support from a licensed professional in any way that is deemed appropriate for you.McDonald Decl., Exh. 12, p. 1.
That same date, February 1, 2018, Plaintiff emailed Defendant Vice protesting that his medical conditions precluded him from following McDonald's directive to re-engage in treatment. Declaration of Brook Vice ("Vice Decl."), ECF No. 110, Exh. 19, p. 1. Vice responded:
You have been directed to engage in treatment as this is a condition of your
supervision. It is your responsibility to get to the doctor if you are going to assert you have a medical condition that restricts you from engaging in treatment. Until we have a medical opinion, in writing, that indicates you are unable to engage in treatment, you will be expected to engage. Your supervising officer has given you a generous timeline of 3/5/18 to be engaged in treatment. If you fail to provide medical documentation excusing you from participating in treatment and this directive is not followed, there will be a system response in the form of a sanction. Furthermore, address any/all communications to your PPO, Nellie McDonald.
Vice Decl., Exh. 19, p. 1.
On March 12, 2018, McDonald met with Plaintiff and his wife for his scheduled office visit. McDonald Decl., ¶ 15. Plaintiff still had not restarted treatment, and McDonald again gave him a directive to do so. McDonald Decl., ¶15. Plaintiff continued to claim that he was not medically cleared to attend treatment, but McDonald questioned this assertion because he was clearly able to meet her for office visits. McDonald Decl., ¶ 15. Plaintiff also continued to claim a lack of finances and transportation to attend treatment, and McDonald let know him she would apply for a subsidy to cover the cost of treatment but that transportation was his own responsibility. McDonald Decl., ¶15. Plaintiff signed a new action plan verifying that McDonald directed him to re-engage with treatment. McDonald Decl., Exh. 13.
On March 19, 2018, McDonald informed Plaintiff that a request for subsidized treatment was approved for eight individual sessions. McDonald Decl., ¶ 16, Exh. 14. McDonald instructed Plaintiff to schedule his appointments. McDonald Decl., ¶ 16, Exh. 14.
On March 21, 2018, Plaintiff contacted Dr. Karlin's office and requested an excuse note from classes. Karlin Decl., ¶ 8. Not aware of the mandatory nature of Plaintiffs classes and believing that Plaintiff still had chronic pain and no transportation, Karlin approved a 30-day note dated March 21, 2018, to allow Plaintiff time to find appropriate transportation. Karlin Decl., ¶ 8. On March 22, 2012, Plaintiff emailed McDonald with a copy of the "Excuse Slip" signed by Dr. Karlin which stated "excuse plaintiff from class for next 30 days." McDonald Decl., Exh. 15, p. 2.
On March 26, 2018, McDonald called Dr. Karlin's office regarding the March 21, 2018, excuse slip. McDonald Decl., ¶ 17; Karlin Decl., ¶ 9. At that time, Karlin's office did not have an authorization on file to release information to McDonald. Karlin Decl., ¶ 9. McDonald informed Karlin's staff of general publicly available information regarding Plaintiffs conviction and mandatory attendance at treatment, and explained the importance of Plaintiff's engagement in sex offender treatment. McDonald Decl., ¶ 17.
On April 2, 2018, McDonald met with Plaintiff and his wife at an office visit. McDonald Decl., ¶ 18. Plaintiff denied telling Dr. Karlin's staff not to speak with McDonald and claimed not to know why there was no release of information (ROI) on file. McDonald Decl., ¶ 18. McDonald advised Plaintiff that if she could speak with Karlin she would have a better understanding of his physical limitations. McDonald Decl., ¶ 18. Plaintiffs wife offered to take him to Karlin's office to clear up the ROI issue, but Plaintiff declined because he was in pain. McDonald Decl., ¶ 18. McDonald directed Plaintiff to re-engage in treatment by April 22, 2018, and Plaintiff signed an Action Plan reflecting this directive. McDonald Decl., ¶ 18, Exh. 16.
On May 7, 2018, Plaintiff appeared for a scheduled office visit with McDonald. McDonald Decl., ¶ 19. He still had not re-engaged in treatment because of alleged medical issues. McDonald Decl., ¶ 19. Because she did not have any current documentation on file excusing Plaintiff from treatment, and because Plaintiff had not complied with her request for over four months, McDonald served Plaintiff with a violation and sanction recommendation. McDonald Decl., ¶19. Pursuant to office protocol, McDonald submitted the sanction recommendation to Supervisor Officer Vice, who approved it. Vice Decl., ¶ 4. Plaintiff requested a formal hearing, which was scheduled with Hearings Office Michele Scholl for May 15, 2018. McDonald Decl., ¶ 19.
On May 8, 2018, plaintiff called Dr. Karlin's office to request another letter excusing him from classes set up by McDonald. Karlin Decl., ¶ 10. Karlin refused to writ any further letters and related to Plaintiff that with the accurate information he had about the true nature of his classes, Plaintiff needed to attend those classes. Karlin Decl., ¶ 10. Later that same day, Plaintiff represented to Dr. Darren Alexander at Tuality Healthcare Emergency Department that Dr. Karlin could not see him that day, which was not true. Karlin Decl., ¶10. Plaintiff asked Dr. Alexander for a note for his parole officer because his back pain was getting worse and opiates had not worked for him in the past. Karlin Decl., ¶ 10. Plaintiff received a note stating that he was seen the night of May 8, 2018, in the emergency department. Karlin Decl., ¶ 10.
Also on May 8, 2018, McDonald emailed Plaintiff to let him know that Ride Connection, a non-profit public transportation service, confirmed it could pick him up at his address in North Plains. McDonald Decl., ¶ 20, Exh. 17.
On May 9, 2019, Plaintiff received a voice mail message from Megan at Dr. Karlin's office letting her know that Plaintiff had called and requested another excuse letter and that Karlin had denied that request. McDonald Decl., ¶ 21. Plaintiff then appeared at Karlin's office in person and requested the letter and was again denied due to the nature of the sex offender treatment and requirement to sit for only 1-2 hours every other week. McDonald Decl., ¶ 21. McDonald emailed hearing officer Michele Scholl regarding this information. McDonald Decl., ¶ 21, Exh. 4, p. 9.
On May 11, 2018, Plaintiff went to the Oregon Health & Sciences University Emergency Department seeking another note to excuse him from court-mandated classes from two weeks. Karlin Decl., ¶ 11. Based on his current condition, Plaintiff was given a "note for school" for May 10-11, 2018. Karlin Decl., ¶ 11.
On May 17, 2019, Dr. Karlin discharged Plaintiff as a patient. Karlin Decl., ¶ 12. He did so due to Plaintiffs misrepresentations about his pain and ability to move, which Karlin suspected was a manipulation on his part to obtain letters to excuse him from attending his sex offender treatment counseling sessions. Karlin Decl., ¶ 12. Karlin avers that he had not spoken with or directly received any communication from Plaintiffs parole officers, nor had anyone from Washington County parole and probations office ever directly contacted Karlin or attempted to coerce or improperly influence him regarding his evaluation of Plaintiff or his medical condition. Karlin Decl., ¶ 13.
Plaintiffs formal violation hearing was rescheduled to May 29, 2018. McDonald Decl., ¶ 22. By May 22, 2018, Plaintiff had obtained his driver's license and a Vespa scooter, and had attended his first sex offender treatment session with Groener. Groener Decl., Exh. 21.
On May 29, 2018, McDonald attended the contested hearing with Scholl and Plaintiff. McDonald Decl., ¶ 22, Exh. 4. Scholl found Plaintiff in violation of the terms of his post-prison supervision, and ordered him to serve three days in jail for failing to re-engage in treatment. McDonald Decl., ¶ 22.
McDonald stated that she would have required Plaintiff to restart sex offender treatment regardless of the existence of this action:
ORS 144.102(4)(b)F) requires Plaintiff to attend sex offender therapy counseling and treatment ("Treatment") as a mandatory PPS condition. Plaintiff is also
required to pay for Treatment. I would have required Plaintiff to restart Treatment with Oregon Center for Change (OCC) regardless of this litigation, because I made it clear to Plaintiff prior to this lawsuit at the end of January 2018 that if he was able to see me and his physician for office visits, I expected him to attend Treatment. Also, Plaintiff had already attended OCC in 2017 and completed group orientation. Without a physician's note expressly excusing him medically from attending counseling twice a month, Plaintiff was expected to meet that mandatory condition.McDonald Decl., ¶ 3.
LEGAL STANDARDS
Summary judgment is appropriate when "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 moving party satisfies its burden by offering the district court the portions of the record it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court does not assess the credibility of the witnesses, weigh the evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. Porter v. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). "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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted). "[W]here evidence is genuinely disputed on a particular issue - such as by conflicting testimony - that issue is inappropriate for resolution on summary judgment." Zetwick v. Cty. Of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (internal quotation and citation omitted).
If the moving party demonstrates no issue of material fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Celotex, 477
U.S. at 324. The nonmoving party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hernandez v. Space labs Med, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). "Mere allegations or denials" are insufficient to meet the nonmoving party's burden to show a genuine issue of material fact to defeat a motion for summary judgment. Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). Importantly, if the nonmoving party fails to provide evidence to support an essential element of his case on which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.
DISCUSSION
As noted, the sole remaining claim before the court is Plaintiffs allegation that defendants retaliated against him for bringing this action and obtaining a temporary restraining order. Plaintiff alleges it was not until after the court issued a temporary restraining order that Defendant McDonald set a date for Plaintiff to restart mandatory sex offender treatment, despite an alleged agreement to allow Plaintiff to defer until he recovered the physical and financial ability to do so.
To establish a claim for retaliation in the context of parole or post-prison supervision, a plaintiff must prove: (1) that he took a constitutionally protected action; (2) that he was retaliated against for exercising those rights; and (3) that the alleged retaliation did not advance legitimate penological goals. Hunter v. Trautwein, Case No. 05-215-ST, 2006 WL 3463441, at *6 (D. Or. Nov. 28, 2006) (citing Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) and Wilson v. City of Fountain Valley, 372 F.Supp.2d 1178, 1188-89 (CD. Cal. 2004)). There must be a causal connection between the alleged retaliatory conduct and the action that purportedly provoked the retaliation. Buckley v. Gomez, 36 F.Supp.2d 1216, 1226 (S.D. Cal. 1997), affd, 168 F.3d 498 (9th Cir. 1999).
A plaintiff must show "that the protected conduct was a 'substantial' or 'motivating' factor in the defendant's decision to act." Id. at 1226 (citing Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) and Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1997)). In claims of retaliation by prisoners against prison officials, the plaintiff also "bears the burden of pleading and proving the absence of legitimate penological goals for the conduct of which he complains." Bruce, 351 F.3d at 1289 (quoting Pratt v. Rowland, 65 F.3d 802, 806 (9th 1995)). If the plaintiff meets this burden, then the burden shifts to the prison officials to show by a preponderance of the evidence that the alleged retaliatory action was narrowly tailored to serve a legitimate penological purpose, such as maintaining prison discipline and suppressing criminal activities. Wilson, 372 F.Supp.2d at 1187 (citations omitted).
Here, Plaintiff does not satisfy his burden of showing that his filing of the original Complaint was "the substantial" or "motivating" factor behind the requirement for him to re-engage in the mandatory sex offender treatment. As set forth above, Officer McDonald repeatedly directed Plaintiff to restart treatment prior to the filing of this action. In November 2017, McDonald encouraged Plaintiff to obtain his driver's license to continue to attend treatment. During the January 5, 2018, visit, McDonald discussed resuming treatment with Plaintiff and he signed the action plan affirming his goal to re-engage at OCC. That discussion was confirmed by McDonald's emails to Dr. Ward and Defendant Groener to have Plaintiff restart treatment with individual, instead of group, sessions. When Groener called to make the appointment, however, Plaintiff refused. On January 10, 2018, McDonald reiterated to Plaintiff she felt he had been able to make various medical and parole office visit appointments, and felt he should be able to make treatment appointments as well. She also confirmed that she would have directed Plaintiff to restart treatment despite the filing of this action.
Plaintiff presents no evidence to the contrary. He argues that the court "need look no further than the few weeks that transpired between Judge Hernàndez's opinion and when Defendant McDonald was able to rid Plaintiff of his medical note excusing Doctor and shortly thereafter incarcerate for not being financially or physically able to provide her a note from a new physician." Even if this statement was not belied by the record, such timing alone, though possibly sufficient to establish a prima facie case for retaliation, will not suffice to defeat a motion for summary judgment. Wilson, 372 F.Supp.2d at 1191; see also Brown v. Coughlin, 965 F.Supp. 401, 406 (W.D. N.Y. 1997) (collecting cases, in prisoner-retaliation context and others, rejecting "timing alone" as sufficient to defeat summary judgment where defendant has evidenced non-retaliatory basis for adverse action).
Plaintiff apparently refers to the February 5, 2018, Order granting the Temporary Restraining Order.
Moreover, Plaintiff fails to show that the directive to restart treatment does not reasonably advance a legitimate penological goal. Treatment is mandatory under Or. Rev. Stat. 144.102(4)(b), and courts have long held that sex abuse treatment programs for prisoners and parolees serve legitimate penological objectives of rehabilitating offenders. See McKune v. Lile, 536 U.S. 24, 32-38 (2002). As a matter of law, a directive to follow the mandated treatment is legitimate.
Under these circumstances, the County Defendants are entitled to judgment as a matter of law on Plaintiffs claim of retaliation. The record, taken as a whole, could not lead a rational trier of fact to find for Plaintiff.
Finally, defendants contend they are entitled to qualified immunity. The doctrine of qualified immunity "protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Such protection extends regardless of whether the government official makes an error as a result of "'a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'" Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). Qualified immunity thus "gives government officials breathing room to make reasonable but mistaken judgments," and "protects all but the plainly incompetent or those who knowingly violate the law." Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991) (noting that "regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not 'clearly established' or the [official] could have reasonably believed that his particular conduct was lawful").
On summary judgment, courts resolve questions of qualified immunity through a two-pronged inquiry. Tolan v. Cotton, 572 U.S. 650, 655 (2014). The first prong "asks whether the facts, '[t]aken in light most favorable to the party asserting the injury, . . . show the officer's conduct violated a [federal] right[.]'" Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The second prong "asks whether the right in question was 'clearly established' at the time of the violation." Tolan, 572 U.S. at 656 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The court is not required to address the prongs in any particular order. See Pearson, 555 U.S. at 236 (holding that "the judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand").
Here, the first prong is dispositive. As discussed above, no constitutional violation occurred. As such, qualified immunity shields defendants from suit.
CONCLUSION
For the reasons stated above, plaintiffs Motion for Summary Judgment (ECF No. 116) should be DENIED, defendants' Motion for Summary Judgment (ECF No. 107) should be GRANTED, and a Judgment of dismissal with prejudice should be entered.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due on August 17, 2021. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.