Opinion
Case No. 2:15-cv-02390-SB
09-28-2018
ROBERT WOODROFFE, Plaintiff, v. ELLEN ROSENBLUM; SHANNON VINCENT; VICTOR BEERBOWER; COLLETTE PETERS; MICHAEL GOWER; JOHN MYRICK; JILL CURTIS; CAPTAIN PEDRO; CAPTAIN IVERSON; CAPTAIN LYTLE; LT. R.A. YOUNG; LT. BOSTON; LT. EDISION; SGT. HAGA; SGT. HOSKINS; SGT. PRIMMER; MR. HILLMICK; MS. KRUEGER; MS. SHORT; LT. STEWART; MICHAEL MAHONEY; ROBERT H. KING JR.; DR. SHELTON; DR. NORTON; JAMES DEACON; SGT. WILSEN; LEONARD WILLIAMSON; MR. D. GREEN; MICHAEL JORDEN, the State Defendants are sued in their individual and official capacities, Defendants.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Pending before the Court are nine motions seeking, among other things, dismissal on all remaining claims of self-represented plaintiff Robert Woodroffe ("Woodroffe"), an inmate at Two Rivers Correctional Institution ("TRCI"). Additionally, Woodroffe filed a cross-motion for summary judgment against Defendant Robert J. King, a fellow inmate. (ECF No. 127.) In his Third Amended Complaint ("TAC"), Woodroffe alleged violations of the First, Eighth, and Fourteenth Amendments and a state law claim for intentional infliction of emotional distress ("IIED"). (ECF No. 15.) For the reasons set forth below, this Court recommends that the district judge grant the State Defendants' motion for summary judgment and Defendant King's Motion to Dismiss, and deny all other motions.
The pending motions are: Defendant King's Motions to Dismiss (ECF No. 41, 42, 48, 49, and 55), Defendant Jorden and Defendant Green's Motion for Judgment on the Pleadings (ECF No. 54), Defendant King's Motion to Declare Plaintiff a Vexatious Litigant (ECF No. 56), Defendant King's Motion to Revoke Plaintiff's IFP Status (ECF No. 57), and the State Defendants' Motion for Summary Judgment (ECF No. 91).
In an Order dated October 26, 2016, the court dismissed Woodroffe's Second (Cruel and Unusual Punishment), Fifth (Intentional Infliction of Emotional Distress), and Sixth (Equal Protection) Claims for Relief. (ECF No. 16 (Order to Dismiss in Part).) Additionally, the Court dismissed all defendants except David Pedro ("Pedro"), Laine Iverson ("Iverson"), Larry Lytle ("Lytle"), Richard Young ("Young"), Kami Short ("Short"), Jill Curtis ("Curtis"), Dwayne Green ("Green"), Michael Jorden ("Jorden"), Dr. Steve Shelton ("Dr. Shelton") (collectively "State Defendants"), and King. (Id.)
LEGAL STANDARD
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party 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 all reasonable inferences must be drawn 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) (quotations and citation omitted).
DISCUSSION
Woodroffe's surviving claims brought pursuant to 42 U.S.C. § 1983 are a First Amendment retaliation claim against defendants Pedro, Iverson, Lytle, Young, Short, and King; an Eighth Amendment deliberate indifference claim against defendant Dr. Shelton; and a Fourteenth Amendment Due Process claim against defendants Curtis, Green, and Jorden.
I. FIRST AMENDMENT RETALIATION
A. Woodroffe's Allegations
1. Against Defendant Pedro
Woodroffe alleges that Pedro failed to take disciplinary action against King despite knowing that King paid people to harm Woodroffe. (TAC ¶¶ 74-77.) According to Woodroffe, Pedro failed to protect him from King "due to [Woodroffe's] law suits and torts." (TAC ¶ 76.)
2. Against Defendant Iverson
Woodroffe alleges that Iverson confiscated "1/2 his property and some being legal material and to this date still has it out of retaliation." (TAC ¶ 83.) Additionally, Woodroffe claims that Iverson held him in administrative segregation "based on protected right in filing civil action and or giving another legal advice." (TAC ¶ 84; see also id. at ¶ 90 (alleging that Iverson and others were responsible for Woodroffe "wrongly" spending "31 days" in segregation); id. at ¶ 92 (alleging that Iverson was responsible for an additional seven days of segregation).) Finally, Woodroffe alleges that Iverson "has held up all incoming mail and out going mail to retaliate and harass [Woodroffe]." (TAC ¶ 93.)
3. Against Defendants Lytle and Young
Woodroffe alleges that Lytle and Young filed a misconduct report in November 2014, solely in retaliation for a tort claim filing. (TAC ¶ 80.) Additionally, Woodroffe alleges that in early 2016, Lytle "pull[ed Woodroffe] into the office and threaten[ed Woodroffe] with segregation any time he wants on a made up investigation for any reason for 30 days . . . ." (TAC ¶ 82.) Woodroffe contends Lytle's actions "were based on retaliation . . . ." (TAC ¶ 81.) Woodroffe alleges that Young assisted Lytle in the actions described above. (TAC ¶ 82.)
4. Against Defendant Short
Woodroffe alleges that Short "retaliated against [Woodroffe] when she worked in concert with . . . King" to create false misconduct reports. (TAC ¶¶ 46, 103-105.)
5. Against Defendant King
Woodroffe alleges that King conspired with the State Defendants "to set [Woodroffe] up for false misconduct to retaliate against [Woodroffe] . . . ." (TAC ¶ 42.)
B. Parties' Arguments
1. Defendants Pedro, Iverson, Lytle, Young, and Short
The five named State Defendants seek dismissal of Woodroffe's First Amendment retaliation claim on four grounds: (1) some claims are barred as untimely, (2) Woodroffe failed to exhaust administrative remedies as to some claims, (3) Woodroffe is unable to satisfy a prima facie case for retaliation, and (4) Pedro, Lytle, Young, and Short are entitled to qualified immunity. (Defs.' Mot. Summ. J. 16.)
As discussed below, the Court finds that entry of summary judgment on Woodroffe's First Amendment retaliation claims is appropriate on the grounds of exhaustion and failure to present a prima facie case. As such, the Court does not reach the State Defendants' statute of limitations and qualified immunity arguments.
2. Defendant King
King seeks dismissal of Woodroffe's First Amendment retaliation claim on two grounds: (1) King is not a state actor, and (2) Woodroffe's claim against King is time barred. (Def.'s Mot. Dismiss 3.) As discussed below, the Court agrees that King is not a state actor. As such, the Court does not reach King's alternative ground for dismissal.
C. Analysis
1. Defendants Pedro, Iverson, and Lytle
a. The PLRA's Exhaustion Requirement
As a threshold matter, Defendants Pedro, Iverson, and Lytle argue that Woodroffe failed to exhaust administrative remedies prior to filing his civil rights complaint in federal court. (Defs.' Mot. Summ. J. 17.) As support for their exhaustion argument, the State Defendants rely on the Declaration of Arnell Eynon, TRCI's Grievance Coordinator and an Oregon Department of Corrections ("ODOC") custodian of records. In opposition, Woodroffe argues that the State Defendants are untruthful in their statement that he failed to exhaust his administrative remedies. (Pl.'s Opp. 20.)
Woodroffe is familiar with prison grievance procedures, having filed approximately 180 grievances in the past five years. (Arnell Eynon Decl. Attach. 1, Mar. 15, 2018.) Additionally, Woodroffe is an experienced self-represented litigant, having filed almost a dozen federal lawsuits, see https://ecf.ord.circ9.dcn/cgi-bin/iquery.pl (last visited Sept. 28, 2018), and dozens of state actions, see, e.g., Woodroffe v. State, 362 Or. 482 (2018), Woodroffe v. Myrick, 361 Or. 543 (2017), Woodroffe v. Hubbard, 271 Or. App. 591 (2015), Woodroffe v. Nooth, 257 Or. App. 704 (2013), Woodroffe v. Bd. of Parole and Post-Prison Supervision, 219 Or. App. 87 (2008). The Oregon state courts have adjudicated Woodroffe a vexatious litigant. (Def. King's Mot. Vexatious Litigant Ex. 1 (Order Declaring [Woodroffe] a Vexatious Litigant).)
The Prison Litigation Reform Act ("PLRA"), amended 42 U.S.C. § 1997e, requires that prisoners exhaust "such administrative remedies as are available" before filing suit challenging prison conditions in federal court. 42 U.S.C. § 1997e(a). "If a prisoner had full opportunity and ability to file a grievance timely, but failed to do so, he has not properly exhausted his administrative remedies." Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009).
Once a defendant shows there was an available administrative remedy and the prisoner did not exhaust that available remedy, the prisoner has the burden of production to come forward with evidence showing there is something in his case "that made the existing and generally available administrative remedies effectively unavailable to him." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). A prisoner's failure to exhaust may be excused if he can demonstrate that the grievance process is unavailable to him because (1) "administrative procedures [are] unavailable," (2) "prison officials obstructed [the prisoner's] attempt to exhaust," or (3) prison officials failed to follow grievance-processing protocol. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). An administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from using the process. Id. To be available, "a remedy must be capable of use for the accomplishment of its purpose." Id.
The grievance procedure available to Oregon inmates, such as Woodroffe, is explained in ODOC's Administrative Rules governing Grievance Review System (Inmate), set forth in Chapter 291, Division 109, of the Oregon Administrative Rules. See Or. Admin. R. ("OAR") 291-109-0100 et. seq. ("Inmate Communication and Grievance Review System"). ODOC has a three-level grievance and appeal process in place to address inmate complaints. Id.
Inmates may file grievances regarding several issues, including "unprofessional behavior or action which may be directed toward an inmate by an employee or volunteer." OAR 291-109-0140. Inmates are encouraged to communicate grievances informally with first-line staff as their primary means of resolving disputes, prior to filing a formal grievance. Id. at 291-109-0140(1)(a).
If the initial communication does not resolve the grievance, the inmate may proceed to level one by completing a grievance form. Id. If the matter is not an emergency, grievance forms must be filed with the grievance coordinator within thirty days of the aggrieving incident, and contain "a complete description of the incident, action, or application of the rule being grieved including date and approximate time." Id. at 291-109-0140(l)(b) and 291-109-0150(2). An inmate cannot grieve misconduct reports, or issues for which the inmate has already filed suit in state or federal court. Id. at 291-109-0140(3)(e), (i).
At level two, an inmate may appeal the grievance coordinator's decision regarding the inmate's level-one grievance form, to the functional unit manager. Id. at 291-109-0170(1). The inmate must file a grievance appeal form with the grievance coordinator within fourteen days of the date ODOC sent the level-one grievance response to the inmate. Id. at 291-109-0170(1)(b).
At level three, the inmate may appeal the decision made by the functional unit manager by filing an additional grievance appeal form with the grievance coordinator within fourteen days of the date ODOC sent the level-two grievance response to the inmate. Id. at 291-109-0170(2). This level-three appeal satisfies the administrative remedies exhaustion requirement under 42 U.S.C. § 1997e(a).
b. Woodroffe's Grievance Process
Only Woodroffe's grievances related to Pedro's, Iverson's, and Lytle's exhaustion arguments are discussed here.
1) Grievance No. TRCI-2015-10-058
In TRCI-2015-10-058, Woodroffe grieved Pedro for allegedly "circumvent[ing]" Woodroffe's effort to mail a letter. (Eynon Decl. Attach. 3 at 4.) Woodroffe expressed a concern that Pedro has "got it out for [him]." (Id.) Following Pedro's written response to TRCI-2015-10-058, Woodroffe filed a first-level appeal. (Eynon Decl. Attach. 3 at 2.) Woodroffe took no further action after the TRCI superintendent responded to his initial appeal. (Eynon Decl. ¶ 7, Attach. 3 at 1.) Accordingly, Woodroffe did not complete the grievance review process for TRCI-2015-10-058.
2) Grievance No. TRCI-2014-06-007
In TRCI-2014-06-007, Woodroffe grieved Pedro's placement of Woodroffe in segregation following an attack by another inmate. (Eynon Decl. Attach. 4 at 2.) The grievance coordinator returned TRCI-2014-06-007 to Woodroffe as non-compliant with ODOC's grievance process. (Eynon Decl. Attach. 4 at 2 ("Per DOC Rule, inmates can't grieve any part of the investigative process as it relates to a misconduct report.").) Woodroffe did not take any further action.
3) Grievance No. TRCI-2016-02-175
In TRCI-2016-02-175, Woodroffe grieved Iverson's confiscation of his property and the failure to provide a "shakedown report" following the property confiscation. (Eynon Decl. Attach. 5 at 7.) While there is no dispute that Woodroffe completed the grievance review process for TRCI-2016-02-175, the record shows that Woodroffe filed his TAC prior to exhausting the process for the property confiscation claims against Iverson. Specifically, Woodroffe filed his TAC on August 11, 2016 (ECF No. 15), and the two-level appeal process for TRCI-2016-02-175 did not conclude until December 12, 2016. (Eynon Decl. Attach. 5 at 1.)
4) Grievance No. TRCI-2016-03-093
In TRCI-2016-03-093, Woodroffe grieved Iverson's handling of certain property while Woodroffe was held in administrative segregation. (Eynon Decl. Attach. 6 at 10.) Specifically, Woodroffe alleged that his body wash spilled and ruined a toothbrush and two finger nail clippers. (Id.) There is no dispute that Woodroffe concluded the grievance review process for TRCI-2016-03-093, but not until after he filed his TAC. (Eynon Decl. Attach. 6 at 1 (showing that Woodroffe completed the grievance process on August 19, 2016, i.e., eight days after he filed his TAC).)
5) Grievance No. TRCI-2016-07-158
In TRCI-2016-07-158A, Woodroffe grieved Iverson for withholding Woodroffe's mail as retaliation. (Eynon Decl. Attach. 7 at 4.) Woodroffe filed a first-level appeal to Iverson's grievance response. (Eynon Decl. Attach. 7 at 2-3.) ODOC returned Woodroffe's first-level appeal as noncompliant with the Grievance Review System. (Eynon Decl. Attach. 7 at 1 ("Appeals must be filed within 14 calendar days of the date the employee response was sent to the inmate.").) Woodroffe did not take any further action and as such did not complete the grievance review process for TRCI-2016-07-158.
6) Grievance No. TRCI-2016-02-009
Lytle and Young contend that Woodroffe failed to exhaust administrative remedies for Lytle's alleged threat of segregation before Woodroffe filed his TAC. (Defs.' Mot. Summ. J. 14 ("Plaintiff filed a grievance against Captain Lytle on February 1, 2016, which was not complete until August 10, 2016.") Although Woodroffe's "Inmate Complaint History" shows that he filed a grievance against Lytle and Young on February 1, 2016 (TRCI-2016-02-009), the Eynon Declaration does not include any documentation for TRCI-2016-02-009. (Eynon Decl. Attach. 1 at 4.) Woodroffe, however, submitted the complete documentation for TRCI-2016-02-009. (Pl.'s Opp. Attach. 1 (hereinafter "Ex.") at 187-92 (including a letter dated July 22, 2016, stating "[t]his concludes the grievance review process for this matter").) While there is no dispute that Woodroffe concluded the grievance review process for TRCI-2016-02-009, there is a dispute about whether the process concluded before Woodroffe filed his TAC. Although the letter denying Woodroffe's second-level appeal is dated July 22, 2016, Lytle and Young rely on the "SENT TRCI GRIEVANCE OFFICE" date of August 10, 2016 stamped on the letter. (Woodroffe Ex. 191.)
Although Woodroffe initially grieved that Young was present when Lytle threatened Woodroffe with segregation, it appears Woodroffe subsequently dropped Young from that grievance. (Woodroffe Ex. 188 ("Mr. Lt. Young did not pull me into office . . . .").)
The Court's docket indicates that the TAC was filed with the Court on August 11, 2016. However, Woodroffe signed the TAC on August 3, 2016. (ECF No. 15.) Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs the document (or signs the proof of service, if later) and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 274-76 (1988) (establishing prison mailbox rule); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (applying the mailbox rule to both state and federal filings by prisoners).
c. Exhaustion Analysis
1) Defendant Pedro
With regard to Woodroffe's attempts to complete the grievance process against Pedro—TRCI-2015-10-058 and TRCI-2014-06-007—the Court finds that Woodroffe failed to exhaust the administrative process for one of those grievances: TRCI-2015-10-058.
Woodroffe did not file a second level appeal for TRCI-2015-10-058, and therefore did not exhaust his administrative remedies with respect to that grievance. See OAR 291-109-0170(2) (Appeal of Functional Unit Manager Decision (Final Appeal Process)). In addition, Woodroffe alleges that Pedro failed to protect Woodroffe from an assault in 2014, but there is no evidence in the record that Woodroffe ever grieved that allegation. (Eynon Decl. Attach. 1.)
However, with respect to TRCI-2014-06-007, the grievance coordinator returned Woodroffe's grievance as noncompliant with the ODOC Grievance Review Process, because he was attempting to grieve a matter he was not allowed to grieve. See OAR 291-109-0140(3)(e) (prohibiting inmate from grieving misconduct report). Although Woodroffe did not appeal or resubmit a compliant grievance, see OAR 291-109-0170(1)(c) (allowing inmate opportunity to resubmit grievance denied on procedural ground), the Court finds that, under these circumstances, Woodroffe should not be faulted for failing to resubmit or appeal a grievance on a matter he was told he could not grieve. See Galligar v. Nooth, 2:12-cv-01891-PK, 2014 WL 4792924, at *8 (D. Or. July 29, 2014) ("However, since the defendants admit that Rule 291-109-0140(3)(e) is applied to effectively preclude grieving such conduct, they have not carried their burden of proving that [prisoner] failed to exhaust his available administrative remedies.").
Accordingly, the district judge should dismiss Woodroffe's claims against Pedro for allegedly circumventing Woodroffe's efforts to mail a letter, and for failure to protect, as Woodroffe did not exhaust either of those claims. However, the Court will consider on the merits Woodroffe's claim that Pedro improperly segregated him from another inmate following an attack in retaliation for Woodroffe exercising his First Amendment rights.
2) Defendant Iverson
With regard to Woodroffe's grievances against Iverson—TRCI-2016-02-175, TRCI-2016-03-093, and TRCI2016-07-158—the Court finds that Woodroffe failed to exhaust his grievances in a timely manner.
The Court turns first to TRCI-2016-07-158. Under ODOC rules, Woodroffe's first-level appeal was not timely. See OAR 291-109-0170(1)(b) (requiring that the "grievance coordinator must receive the appeal within 14 calendar days from the date that grievance response was sent to the inmate from the grievance coordinator" (emphasis added)). The sent date on the "Grievance Response Form" is August 4, 2016, and the received date on Woodroffe's Grievance Appeal Form is August 25, 2016, outside of the required 14-day time period. Nor did Woodroffe seek an exemption for his late-filed appeal. See OAR 291-109-0170(2)(c)(A) ("An inmate may file a grievance appeal past the 14 day timeline if the inmate can demonstrate why the grievance appeal could not be filed within the timelines established by rule, i.e., physical incapacity, etc.") As a result, Woodroffe failed to exhaust his First Amendment retaliation claim against Iverson for allegedly withholding Woodroffe's mail as set forth in TRCI-2016-07-158.
The Court turns next to Woodroffe's two grievances against Iverson that Woodroffe did not exhaust until after he filed the TAC in this case—TRCI-2016-02-175 (fully exhausted on December 12, 2016) and TRCI-2016-03-093 (fully exhausted on August 19, 2016). Where an inmate fails to exhaust prior to filing his complaint, this Court is "required by 42 U.S.C. § 1997e(a) to dismiss the complaint without prejudice." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see also Young v. Cal. Dep't of Corr. and Rehab., No. 12-16491, 2014 WL 23777, at *1 (9th Cir. Jan. 2, 2014) ("The district court properly dismissed Young's retaliation claim against defendant Barron because Young failed properly to exhaust his administrative remedies against this defendant prior to filing suit and failed to demonstrate that administrative remedies were effectively unavailable to him."); Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998) (affirming dismissal of inmate's complaint even though inmate exhausted claims several days after filing action), overruled by implication on other grounds by Jones v. Bock, 549 U.S. 199 (2007). Accordingly, Woodroffe also failed to exhaust his First Amendment retaliation claims against Iverson arising from the alleged mishandling and wrongful confiscation of Woodroffe's property as alleged in TRCI 2016-02-175 and TRCI-2016-03-093, and the district judge should enter judgment on those claims.
3) Defendants Lytle and Young
With regard to Woodroffe's attempt to complete the grievance process against Lytle and Young—TRCI-2016-02-009—for the reasons discussed above, the Court finds that Woodroffe failed to exhaust TRCI-2016-02-009 in a timely manner because he filed his TAC before completing the grievance review process. See generally OAR, Chapter 291, Division 109 (using "sent" date as the operative date to begin new time period). Alternatively, as explained in section I.C.2.a.(1) below, even if the Court were to construe the grievance review process as complete on July 22, 2016 (i.e., the date of the letter denying the final appeal), Woodroffe's First Amendment retaliation claim against Lytle and Young fails on the merits. Accordingly, the district judge should grant Lytle's and Young's motions for summary judgment on Woodroffe's First Amendment retaliation claims arising from the alleged threat of segregation as set forth in TRCI-2016-02-009.
2. Defendants Lytle, Young, Iverson, and Short
a. Prima Facie Case of First Amendment Retaliation
Woodroffe alleges that Pedro, Lytle, Young, Iverson, and Short retaliated against him for pursuing his tort claims in violation of his First Amendment rights. Specifically, Woodroffe contends that Lytle and Young retaliated with threats of segregation and wrongful placement in segregation following misconduct findings; Iverson retaliated by wrongfully placing Woodroffe in segregation; and Short retaliated by wrongfully filing a misconduct report. The State Defendants argue that Woodroffe does not present sufficient facts to create an inference that the named defendants took these actions because Woodroffe was pursuing litigation, and that he has failed to demonstrate the lack of a legitimate penological purpose for the challenged actions. (Defs.' Mot. Summ. J. 17-19.)
Under Ninth Circuit law, a First Amendment retaliation claim in the prison context requires a showing: (1) "that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Brodheim v. Cry, 584 F.3d 1262, 1269 n.3 (9th Cir. 2009) ("On summary judgment . . . the plaintiff must demonstrate there is a triable issue of material fact on each element of his claim, as opposed to merely alleging facts sufficient to state a claim."). As discussed below, the Court finds that viewing the evidence in the light most favorable to Woodroffe, no reasonable jury could find that Woodroffe's First Amendment rights were chilled, that the State Defendants acted "because of" Woodroffe's protected conduct, or that the State Defendants' actions did not advance a legitimate penological purpose.
1) Defendant Pedro
Woodroffe's retaliation claim against Pedro arises from TRCI-2014-06-007, in which Woodroffe attempted to grieve Pedro's action of placing Woodroffe in segregation following an attack by another inmate. Specifically, Woodroffe alleges that:
38. Exhibit 68 thru 70 is a misconduct and findings and facts but makes clear that it was a unilateral attack and this is common practice that inmate don't go to segregation when assaulted from behind which was know by capt. Pedro and he still did it and had Mr. Reece written up far below what is normally written up for this kind of assault and really so with Mr Reeces assaultive history as he was a threat to this unit and the security knew that he would assault someone again and it was not if but when and they knew it and prior to me there was several assaults by Mr Reece and his last assault was towards a officer in this facility and now he is on lock down.(Robert Woodroffe Decl. ¶¶ 38-39, Apr. 18, 2016.)
39. Exhibit 71 and 72 is 2 kites from capt. Pedro except exhibit 72 conflicts with exhibit 73 cause Capt. Pedro made a false statement to punish me and is on good terms with inmate Reece and Inmate King but it comes down to punishing me for filing action towards him and his friends and wrongly or falsely putting me in segregation is solely to chill my efforts to pursue grievances and tort and civil actions.
Even if Woodroffe's factual allegations are true that Pedro placed Woodroffe in segregation following an "assault[] from behind" by another inmate, Woodroffe neither argues nor produces evidence that Pedro lacked a legitimate penological purpose in segregating Woodroffe from the other inmates following an attack. See, e.g., Amadeo v. Castellaw, 371 F. App'x 763, 765 (9th Cir. 2010) (finding that "the administrative segregation of a prisoner is 'reasonably related' to the 'legitimate penological interest' of maintaining order and safety within the prison") (citing Turner v. Safley, 482 U.S. 78, 89 (1987)); see also OAR 291-046-0025(1) ("An inmate may be involuntarily placed in administrative segregation or protective custody for a period not to exceed 30 days by the functional unit manager . . . when he/she has sufficient evidence to believe immediate assignment is necessary to protect the safety, security, and orderly operation of the facility.").
There is no evidence that Pedro's action in segregating Woodroffe did not reasonably advance a legitimate correctional goal. As such, Woodroffe cannot satisfy his prima facie case for retaliation against Pedro, and the district judge should grant Pedro's motion for summary judgment on Woodroffe's First Amendment retaliation claim.
2) Defendants Lytle and Young
Woodroffe's retaliation claims against Lytle and Young arise from (1) TRCI-2016-02-009, in which Woodroffe grieved that Lytle and Young threatened him with placement in segregation, and (2) Woodroffe's allegation that in November 2013 and July 2015, Lytle and Young wrongfully placed him in segregation following findings of misconduct. In his opposition to Lytle's and Young's motion for summary judgment on the merits, Woodroffe relies on his declaration and the exhibits attached to his opposition brief. Specifically, Woodroffe alleges that:
The Court determined above that Woodroffe failed to exhaust this claim against Lytle and Young. (See Section I.C.1.c.(3) above.)
57. Exhibit 97 Capt. Lytle was there when Lt. Young violated my rights and knew that i could not be punished for a tort and so did Lt. Young as both got 20 + years in Dept. of corrections.
58. Exhibit 98 Capt. Lytle states the matter happened prior to his shift yet he signed off on the Misconduct report.
59. Exhibit 99 Capt. Lytle co-signing Lt. Youngs actions and my freedom of speech and of which are both protected as to torts, grievances and lawsuits.(Woodroffe Decl. ¶¶ 57-59, 65, 71, 82-85.) The exhibits Woodroffe referenced in his declaration include Inmate Communication Forms (Exs. 97-99, 175-184), an ODOC Misconduct Report (Ex. 127), Transcript of Disciplinary Hearing of Robert Craig Woodroffe dated July 15, 2015 (Exs. 138-155), a letter signed by Superintendent John Myrick, detailing the results of Defendant Young's investigation into Woodroffe's concerns regarding his housing assignment resulting from being "set up" by other inmates (Exs. 173-174), and Grievance Nos. TRCI-2016-02-010, TRCI-2016-02-009, TRCI-2016-02-009 (First Level Appeal), TRCI-2016-02-009 (Second Level Appeal) (Exs. No. 185-191). While Woodroffe accurately describes these exhibits in his declaration, the evidence does not create material factual disputes on Woodroffe's retaliation claims.
. . . .
65. Exhibit 127 is a mis-conduct for 7-2-05 which was based only on inmate hearsay and no evidence signed off on it was Mr. Capt. Lytle who's got a deep rooted hatred for me.
. . . .
71. Exhibit 138 thru 155 is the transcripts for hearing 1507 TRCI 10012 but the key here is I was denied a investigation or to call witnesses when the[ir] only evidence was hearsay of inmates and they could of acquired video footage over a 6 week period that they were investigating the matter but capt. Lytle knew what he was doing was wrong in signing off on the misconduct and knew his action were retaliation and done so knowingly.
. . . .
82. Exhibit 173-174 Mr. Young was roped into a investigation due to me writing Mr. Gower asst. Director for DOC. And was not happy about it and did not like me so it was more of a conflict to start with and the facts a Dr. got dismissed his informant was caught lying or was it set up by staff?
83. Exhibit 175 thru 182 is kites to Lt. Young that were not answered except 181 as he had brought them to me in a pile to interview me.
84. Exhibit 183-184 Ms. Schutt answers Mr. myricks the superintendents kite i sent him.
85. Exhibit 185 thru 191 are exhausted grievances.
With regard to the November 2013 misconduct case (Ex. 93), Woodroffe does not argue that the disciplinary process served no legitimate penological purpose, or that he did not commit the charged violation, Disrespect III. See Gonzalez-Aguilera v. Belleque, No. 1:09-cv-00579-PA, 2011 WL 690606, at *3 (D. Or. Feb. 16, 2011) ("Because it is undisputed that Gonzalez-Aguilera threatened Officer Schutt, Gonzalez-Aguilera can not demonstrate the filing of the misconduct report did not advance any legitimate penological interest. [Plaintiff's] retaliation claim therefore fails on the merits."). Similarly, in July 2015, Defendant Lytle signed off as reviewing supervisor on a misconduct report that charged Woodroffe with three major rule violations. (Woodroffe Ex. 127.) Again, Woodroffe does not contend that the misconduct report served no legitimate penological purpose, or that there was no basis for the report. Belleque, 2011 WL 690606, at *3; see also Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) ("The plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains.").
The Court turns next to Woodroffe's claim that Lytle and Young threatened him with segregation. Even if Lytle and Young did so, there is no evidence in the record that the alleged threat was in retaliation for Woodroffe's "torts, grievances and lawsuits." (Woodroffe Decl. ¶ 59.) Woodroffe has not submitted any evidence to show that either defendant was aware of Woodroffe's grievances or lawsuits. In fact, the record shows that prior to filing TRCI-2016-02-009 (grieving threats of segregation), Woodroffe never named Lytle in a grievance and had not filed a grievance naming Young for several years prior. (Eynon Decl. Attach. 1.) Additionally, there is no evidence that either Lytle or Young were aware of this case at the time of the alleged threat, as they were not served until several months later. (See ECF No. 16 (Order dated Oct. 28, 2016) (authorizing Woodroffe to proceed with the litigation against, among others, Lytle and Young).) Accordingly, there is no evidence in the record from which a reasonable juror could conclude that Lytle and Young made the alleged segregation threat "because of" Woodroffe's grievances or lawsuits. See McCollum v. CDCR, 647 F.3d 870, 882 (9th Cir. 2011) ("To raise a triable issue as to motive, [inmate] must offer either direct evidence or at least one of three general types of circumstantial evidence of that motive[,]" and noting that circumstantial evidence of motive includes temporal proximity, the defendants' expressed opposition to the plaintiff's actions, or evidence of pretext) (quotations and citation omitted)).
Finally, Woodroffe neither alleges nor can he establish on this record that a threat of segregation is enough to "chill" the exercise of an ordinary person's First Amendment rights. See Rhodes, 408 F.3d at 568-69 (applying an objective standard). Here, even after the alleged threat of segregation, Woodroffe filed more than a hundred grievances, initiated this federal court action, and fully participated in the litigation before this Court. Woodroffe has not established that an alleged threat of segregation is enough to chill an inmate's First Amendment rights, and indeed it did not do so here. Cf. Woodroffe v. Kitzhaber, et al., No. 2:13-cv-00403-SI, at *4-5 (D. Or. June 5, 2013) (ECF No. 12 (dismissing Woodroffe's 215-page complaint sua sponte, and holding that Woodroffe's access to courts claim was "clearly frivolous" in light of "the numerous filings Plaintiff has made in court"). /// ///
For all of these reasons, the Court finds that Woodroffe cannot satisfy his prima facie case for retaliation against Lytle and Young. Accordingly, the district judge should grant Lytle's and Young's motion for summary judgment on Woodroffe's First Amendment retaliation claim.
3) Defendant Iverson
Woodroffe's retaliation claim against Iverson is grounded in the allegation that Iverson wrongfully held Woodroffe in segregation. (TAC ¶ 84 (alleging that Iverson held him in administrative segregation "based on protected right in filing civil action and or giving another legal advice"); see also id. at ¶ 90 (alleging that Iverson and others were responsible for Woodroffe "wrongly" spending "31 days" in segregation); id. at ¶ 92 (alleging that Iverson was responsible for an additional seven days of segregation).)
In his opposition to Iverson's motion for summary judgment, Woodroffe alleges that:
7. James deacon also makes false accusation as to his declaration and chain of events and its also known that all records are sent to Salem and he has said he has no access to them once hearing is completed and there was no physical evidence for administrative segregation and was continued Retaliation on Capt. Iverson and there was no evidence to support but regardless you still can't hold a person in disciplinary segregation for exercising his constitution right to file civil litigation which regarded plaintiff was not doing and . . . was admitted by Mr. Deacon.
. . . .
161. Exhibit 411 kite to Collette Peters dated 2-14-14 over Capt. Iverson wrongly placing me and others on lock down on the unit for prea and set ups and the state police had already investigated it and Determined that I was a victim but he choose to punish me anyhow just because.
. . . .
166. Exhibit 416 capt. Iverson put me on lock down saying he's completing a investigation the state police had already done and proved I was set up and nothing got done by this prison for this matter even after several other inmates came forward and stated king and staff were conspiring to set me up.
167. Exhibit 417 is a denied grievance on capt Iverson on being placed on cell lock down and this was done to cover up acts.(Woodroffe Decl. ¶¶ 7, 161, 166-167, 186, 189-190, 192.)
. . . .
186. Exhibit 453 thru 455 Tort claim as to retaliation by Capt. Iverson in placing me in segregation over my property, but later lying about it and said I was in dsu for litigation, but had no evidence on anything except made up hearsay and had no actual reports to support it and can only be more retaliation. And then a few months later after I get out of seg. He threatens me with a misconduct for mentioning legal actions over my property and this is retaliation and it just keeps going and no one will do anything about it.
. . . .
189. Exhibit 459 on 2-28-16 Mr. Iverson came down to see me at his false segregation with nothing to support it and there was no paper work on it and he just says he intends to lock me down and send me to snake river on lock down for suing people and he knew he was violating my rights.
[190]. Exhibit 460 thru 462 Mr Iverson had no evidence to support placing me on Ad seg. In DSU and in his report he was not able to establish nothing nor prove none of his statements for reason for placement "NO EVEDENCE" none was supplied and it was not even completely approved see 462.
. . . .
192. Exhibit 464-465 notification and hearing (see back side of page 465 and states there is no evidence as to me once again by Iversons retaliations toads me and simply just targeting me for suing him and his friends and there is a long pattern and a continued pattern to harm me for exercising my 1st amendment rights.
The record before the Court shows that upon his transfer to TRCI in June 2013, ODOC has housed Woodroffe "in special housing, either on the Disciplinary Segregation Unit (DSU) or on the Administrative Housing Unit (AHU), since that time." (Antonio Fernandez Decl. ¶ 3, Attach. 1, Mar. 15, 2018.) However, Woodroffe challenges only his placement in the DSU for seven days (TAC ¶ 92) and then thirty-one days (TAC ¶ 90) beginning January 27, 2016, and ending on March 7, 2016. (Fernandez Decl. Attach. 1 at 6 (showing Woodroffe's placement in cell DS110 from 1/27/2016 to 02/03/2016, and placement in cell DS119B from 02/03/2016 to 03/07/2016.) Iverson does not dispute that placement in DSU is an adverse action. Rather, Iverson argues that there was a legitimate penological purpose for Woodroffe's placement. (Defs.' Mot. Summ. J. 14-15.)
Specifically, on January 27, 2016, security received information that "Woodroffe and an inmate from another facility were filing lawsuits against inmates on AHU." (Steven Boston Decl. ¶ 4, Feb. 27, 2018.) Iverson submitted an "Involuntary Administrative Segregation" request (James Deacon Decl. Attach. 2, Mar. 15, 2018) and, in response, TRCI moved Woodroffe "to DSU on involuntary administrative segregation status for his safety while an investigation was conducted." (Boston Decl. ¶ 4 ("Woodroffe cannot live in inmate general population for his safety and DSU was the appropriate temporary housing assignment."); see also OAR 291-046-0025(1) ("An inmate may be involuntarily placed in administrative segregation or protective custody for a period not to exceed 30 days by the functional unit manager . . . when he/she has sufficient evidence to believe immediate assignment is necessary to protect the safety, security, and orderly operation of the facility.") The Court finds that Woodroffe's placement in DSU for his own safety serves "the legitimate penological objective of prison security and inmate safety." Woodroffe v. Oregon, No. 2:12-cv-00124-SI, 2015 WL 2125908, at *14 (D. Or. May 6, 2015), appeal filed Woodroffe v. Kulongoski, et al. (9th Cir. June 8, 2016).
However, the record also shows that Woodroffe was held in the DSU beyond the authorized 30-day period. (Deacon Decl. ¶ 7); see also OAR 291-046-0025(2) (authorizing "a period in excess of 30 days only when information verified through the hearing process . . . shows the inmate to constitute an immediate and continuing threat to the safety, security, and orderly operation of the facility"). Deacon, ODOC's hearings officer, convened a hearing on March 2, 2016, to consider Woodroffe's involuntary placement. (Deacon Decl. ¶ 8; see id. at ¶ 7 ("[A] hearing should have been conducted by Friday, February 26, 2016. In this case, I did not receive the paperwork until after February 26, 2016, and scheduled a hearing as soon as possible.") Deacon postponed the hearing until March 7, 2016, in order to review all relevant information. (Id.) On March 7, 2016, based on the evidence presented, including Woodroffe's testimony, Deacon determined that continued involuntary segregation "was not justified because there was no direct evidence that Inmate Woodroffe was conducting any litigation between himself and other inmates on AHU." (Deacon Decl. ¶ 10.)
Neither the State Defendants nor Woodroffe present evidence to explain the brief paperwork delay. However, even if Iverson was somehow at fault for the brief delay (and there is no evidence that he was), it is clear that Woodroffe's continued placement in DSU was necessary to further the legitimate penological interest of security and inmate safety. (Deacon Decl. ¶ 7 ("In this case, security concerns made it important to have Inmate Woodroffe remain in DSU on involuntary administrative segregation status until any potential security risks could be ruled out.") Deacon was within his authority briefly to delay a final decision to take all factors into consideration. See, e.g., Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (finding that preserving institutional order, discipline, and security are legitimate penological goals); see also Bell v. Wolfish, 441 U.S. 520, 546-47 (1979) ("Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.")
Alternatively, the Court finds that Woodroffe has not presented a disputed question of fact on causation. Although Woodroffe alleges that Iverson was "targeting [him] for suing him and his friends," Woodroffe does not support this conclusory allegation with any specific facts to show that Iverson was aware of Woodroffe's previous lawsuits or that Woodroffe's prior grievances and civil litigation impacted Iverson's actions. Woodroffe's Inmate Complaint History shows that prior to his January 2016 placement in DSU, Woodroffe never grieved any action by Iverson. (Eynon Decl. Attach. 1.) Nor does Woodroffe submit any evidence of prior civil litigation in which he implicated Iverson. Similarly, with regard to Woodroffe's conclusory allegation that Iverson was motivated by Woodroffe's grievances and litigation against Iverson's "friends," Woodroffe offers no specific facts or evidence in support. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) ("[T]he plaintiff must allege a causal connection between the adverse action and the protected conduct."); Heilbrun v. Villanueva, 3:14-CV-1706-SI, 2017 WL 2432152, at *10 (D. Or. June 5, 2017) (granting summary judgment on plaintiff's retaliation claims because "the record contains no evidence that Plaintiff's exercise of his First Amendment rights caused Defendants to take these alleged actions"). Finally, for the same reasons discussed above, Woodroffe cannot demonstrate that Iverson chilled his First Amendment rights.
Viewing the evidence in the light most favorable to Woodroffe, the Court finds that Woodroffe is unable to satisfy his prima facie case for First Amendment retaliation against Iverson. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) ("For [plaintiff] to state a cause of action, therefore, he must do more than allege retaliation because of the exercise of his first amendment rights in bringing and assisting in civil rights litigation; he must also allege that the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals."); see also Barren v. Kohn, No. 2:13-cv-01492-RCJ-GWF, 2017 WL 2271122, at *4 (D. Nev. May 24, 2017) (finding that although "the task of sorting out retaliatory motives from legitimate ones in the face of multiple grievances, lawsuits, and disciplinary actions can be complex in some cases . . . . [t]he burden of proof remains on the prisoner-plaintiff to show a causal nexus between a particular protected activity and a particular adverse action that is unrelated to legitimate penological goals"). Accordingly, the district judge should grant Iverson's motion for summary judgment on Woodroffe's First Amendment retaliation claim.
4) Defendant Short
Woodroffe's retaliation claim against Short arises from allegations that she filed a false misconduct report in July 2014. The record shows that on July 23, 2014, Short filed a misconduct report charging Woodroffe with Racketeering, Extortion I, and Fraud. (Woodroffe Ex. 81.) However, it appears the charges in Short's misconduct report were subsequently dismissed and no sanction issued. (Id.) Woodroffe has not provided any evidence of an adverse action resulting from Short's allegedly false misconduct report. See, e.g., Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000) ("In a constitutional tort, as in any other, a plaintiff must allege that the defendant's actions caused him some injury."); King v. Capps, 384 F. App'x 601, 602 (9th Cir. 2010) (affirming district court's dismissal of plaintiff's First Amendment claim "because he failed to allege facts suggesting he was injured as a result of the misconduct report, which was later dismissed"). As such, Woodroffe is unable to state a prima facie case for retaliation against Short, and the district judge should grant Short's motion for summary judgment on Woodroffe's First Amendment retaliation claim.
3. Defendant King
King seeks dismissal of Woodroffe's First Amendment retaliation claim because King did not act "'Under Color of State Law.'" (Def.'s Mot. Dismiss 3.) King alleges that he "does not work for and is not an agent for any local, state or federal agency[]" and that "[y]ou cannot use 42 U.S.C. § 1983 to sue another inmate (because he does not work for the government)." (Def.'s Mot. Dismiss 3.)
Section 1983 provides a private right of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege two essential elements: (1) a federal constitutional or statutory right was violated, and (2) the alleged violation was committed by a person acting under the color of state law. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). The under-color-of-state-law element of § 1983 excludes from its reach "merely private conduct, no matter how discriminatory or wrongful." Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quotations and citation omitted).
In support of his argument that King, a fellow inmate, is a "state actor" for purpose of his First Amendment retaliation claim, Woodroffe alleges, among other things, that:
Woodroffe's only surviving claim against King is that King, acting under the color of state law, retaliated against Woodroffe in violation of his First Amendment right to pursue redress through ODOC's Grievance Review System and the courts. (TAC ¶ 42.)
42. Robert King and Attorney Mahoney conspired with TRCI staff to retaliate against plaintiff for filing civil acting and litigating his legal matters and seeked to chill plaintiff from exercising his constitutional rights.2. Several staff conspired with Robert King to set plaintiff up for false misconduct to retaliate against plaintiff and did so repeatedly as King would pay off other inmates for staff to have and use inmate hearsay. Robert King conspired with C/O rancier and capt. boston to make false PREA reports and it was proven that this took place and staff did nothing but ignor the criminal activity.
43. Lt. Boston gave Robert King favors to draft a false prea conflict inmate report to keep plaintiff in segragation and not allowed back on the unit which Robert King wrote up in his own hand writing.
. . . .
46. Ms. Short was told by Ms. Kruiger to write a false Misconduct that was faciliteated and designed by Robert King Jr. thur micheal Mahoney.
. . . .
78. Capt. Iverson on 2-4-2014 placed . . . plaintiff lop sanctions on unit based on hearsay and over the already investigated prea matter and Robert King using staff and inmates for his bidding which so being is retaliatory and done so intentionally and this caused plaintiff harm.
. . . .
95. Lt. Boston told inmate Robert King in late december that he needed him to write a conflict report for Curtis Mcvae to keep plaintiff from coming back to unit in violation of rules and policy and out of retaliation.
. . . .
103. Ms. Short retaliated against plaintiff when she worked in concert with micheal mahoney and Robert King whim paid for Mr. Mahony to do as he did and was done over pending leagal actions filed in mahleur and Umatilla counties.
104. Plaintiff recieved a misconduct from Ms. Short in case No. 1406 N 204 N 25 on 7-23-14 and was dismissed due to retaliation and that I cant be punished for legal filings, grievances and torts.
105. Robert H King Jr. a state actor in conspiring with Ms Short thur Micheal Mahoney retaliated in getting plaintiff written up a misconduct for a protected 1st amendment right.
. . . .
108. Micheal Mahony conspired and admitted in a letter that he was being paid by Robert King for his action and contact with Ms. Short and quoted in the Misconduct by Ms. Short resulting in a misconduct violation plaintiffs 1st amendment right and retaliation.
109. Robert King conspired with Lt. Boston to place plaintiff in segragation several times and in late december thur to janurary 2014.(TAC ¶¶ 42-43, 46, 78, 95, 103-105, 108-109.)
21. Attorney Mahoney and inmate Robert King conspired and worked with doc employees in order to punish and harm plaintiff and this is retaliation also and they can be sued under a 1983 as state actor when the conspired with Doc managment to write him a misconduct for filing a law suit and doing service and this is all in writing and established evidence, or when robert King Notified the us Postal Inspectors and FBI and all was false and I got this all in writing.(TAC Attach. 1 at ¶ 21.)
MAHONY, MS. SHORT, ROBERT KING-STATE ACTORS
15. Exhibit 70 thru 80 is inmate king paying a lawyer Mr. Mahony to call the prion per Robert Kings instruction and to work it to get me Put in segragation on false charges but also for exercising my 1st amendment right to file civil action without retaliation from staff or state actors acting in concert with staff and it is common knowledge that Ms. Short when she was a officer had a overly friendly friendship and it is common for staff to know they can't punish a person for filing legal actions and page 77 at the bottom of exhibit you will see that it says: He is wasting my time and Mr. Kings money and establishes that Mr. King was in fact paying a lawyer to work thru the prison staff.
16. Exhibit 81 is a kite confirming that a memo exists of Mr. King trying to pay inmates to lie to staff for him and offered Inmate masher 500.00 to lie to Capt. Pedro to get me punished
17. Exhibit 82 is a photo copy of a investigator that interviewed me and several other inmates about Mr. Kings habitual acts of lying to others to include prison staff the police, and the courts and whomever if it will serve his needs and the interviews are going to be used to impeach Mr. Kings false testimony to attempt to show he is changed and a good person for the parole board.
18. Exhibit Mr. King wants to call me a vexatious litigant and got a court to agree but i was not able to find out what it was until it was
to late but regardless I've won over 75 % roughly of the action I file or agree to settle the for everyone's benefit as I did in this court in CV 977-MO which Mr. King says was dismissed but he believes that everything he says will be believed and that include this court and his exhibits are not properly in line with the court rules on evidence.(Woodroffe Decl. ¶¶ 15-18.) In response, King contends that he is not a state actor and, as such, cannot be liable under § 1983. (Def.'s Mot. Dismiss 3 ("Defendant King does not work for and is not an agent for any local, state or federal agency.").)
Michael R. Mahoney is an Oregon attorney in private practice. (Ex. 259.)
At the outset, the Court recognizes the uphill battle Woodroffe faces by attempting to establish that a fellow inmate is a state actor, and the Court has not found any relevant authority to support Woodroffe's request to extend § 1983 liability to a fellow inmate under the circumstances present here. On the contrary, courts have consistently rejected attempts to cast the § 1983 net wide enough to include fellow inmates. See, e.g., Jackson v. Foster, 372 F. App'x 770, 771 (9th Cir. 2010) (concluding that "the district court properly dismissed Jackson's excessive force claim because [fellow] inmate . . . did not act under color of state law under any formulation of the governmental actor tests"); see also Gettimier v. Burse, No. 2:13CV44HEA, 2015 WL 75224, at *5 n.3 (E.D. Mo. Jan. 6, 2015) ("The fact that a fellow inmate is not a 'state actor' for purposes of § 1983 litigation is so fundamental as to not require citation."); Rigano v. Cty. of Sullivan, 486 F. Supp. 2d 244, 256 n.15 (S.D.N.Y. 2007) ("Plaintiff also appears to bring a claim against the inmate defendants pursuant to 42 U.S.C § 1983. It is well-established that a § 1983 claim is only cognizable against a state actor and not a fellow inmate."); cf. Williams v. Calidonna, 09:06-CV-0178, 2007 WL 432773, at *1-2 (N.D.N.Y. Feb. 2, 2007) (dismissing § 1983 action against inmates despite allegation they were working as state informants).
Woodroffe's theory of liability as to fellow inmate King is that King acted in concert with prison officials to create false misconduct reports against Woodroffe. (Woodroffe Decl. ¶¶ 15-18.) The Court finds that Woodroffe cannot demonstrate that King was a state actor based on the circumstances alleged.
In Lugar v. Edmondson Oil Corporation., 457 U.S. 922, 937 (1982), the Court established a two-part state-action test to determine if conduct that allegedly caused the deprivation of a federal right could be fairly attributable to the State. "First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible [state policy] . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor [state actor]." Id.; see also Collins v. Womancare, 878 F2d 1145, 1151 (9th Cir. 1989) ("The Eighth Circuit has aptly labeled these two elements of the Lugar test the 'state policy' and 'state actor' requirements, respectively." (citation omitted)). Both parts of the Lugar test must be satisfied for there to be state action. Lugar, 457 U.S. at 937-39; see also Collins, 878 F.2d at 1151 (same).
Generally, courts may rely on four tests to determine if a private person is a state actor: public function, state compulsion, nexus, and joint action. Lugar, 457 U.S. at 939. Because the Court finds that Woodroffe cannot satisfy the first prong of the Lugar test, the state policy requirement, it need not resolve the second prong. See Collins, 878 F.2d at 1151 ("Because our analysis of the citizen's arrest reveals that Womancare's employees' actions failed to meet the first prong of the Lugar test, we need not consider the Collins group's second [prong], sovereign function argument.").
Woodroffe's theory of state actor liability as applied to King cannot meet the first prong of the Lugar test. Woodroffe has not articulated any state-created right, privilege, or rule that King exercised here to retaliate against him. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 162 n.23 (1970) ("Whatever else may also be necessary to show that a person has acted 'under color of a statute' for purposes of § 1983 . . . we think it essential that he act with the knowledge of and pursuant to that statute."). Instead, Woodroffe alleges that King acted contrary to state law and policy, by "set[ting] plaintiff up for false misconduct to retaliate." (Woodroffe Decl. ¶¶ 15-18.) As a fellow inmate, King had no power by virtue of a state law or policy, but instead exercised only the power of a fellow inmate. See Lugar, 457 U.S. at 940 (finding that plaintiff's allegation of "malicious, wanton, willful, oppressive, and unlawful acts" were to say "that the conduct of which petitioner complained could not be ascribed to any governmental decision; rather, respondents were acting contrary to the relevant policy articulated by the State"). Put another way, no state-created right, privilege, or rule gave King the right to make false allegations against Woodroffe. See id. at 941 (stating that "private misuse of a state statute does not describe conduct that can be attributed to the State"); West v. Atkins, 487 U.S. 42, 49 (1988) ("The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'") (quoting U.S. v. Classic, 313 U.S. 299, 326 (1941)); see also McCann v. Winn Corr. Ctr., 1:09-cv-2232, 2010 WL 2710402, at *7 (W.D. La. May 24, 2010) ("Under the 'color of law' requirement, the defendants in a § 1983 action must have committed the complained-of acts in the course of their performance of duties and have misused power that they possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.") (citation omitted).
Here, Woodroffe has not alleged and cannot demonstrate that King misused power that he possessed by virtue of a state-created right, privilege, or rule; rather, King is alleged to have acted as a private actor misusing available state resources. Woodroffe cannot hold fellow inmate King liable as a state actor, and therefore the district judge should dismiss Woodroffe's First Amendment retaliation claims against King. ///
II. EIGHTH AMENDMENT DELIBERATE INDIFFERENCE
A. Woodroffe's Allegations of Deliberate Indifference
In his TAC, Woodroffe alleges that Dr. Shelton violated the Eighth Amendment by way of an unconstitutional "TLC [Therapeutic Level of Care] policy" and medical indifference to Woodroffe's deviated septum and medical need for a donut cushion. (TAC ¶¶ 143-44.)
Dr. Shelton is the only remaining defendant named in Woodroffe's Eighth Amendment claim. (ECF No. 16 (Order to Dismiss in Part at 8-9, 11.)
B. Parties' Arguments
Dr. Shelton moves for summary judgment on Woodroffe's Eighth Amendment claims on the ground, among others, that Woodroffe failed to exhaust his administrative remedies for his medical indifference claims. (Defs.' Mot. Summ. J. 9-10.) Additionally, Dr. Shelton argues that Woodroffe's reference to the TLC policy is not a "stand-alone claim." (Defs.' Mot. Summ. J. 6.) In response, Woodroffe argues that he exhausted his deliberate indifference claims and, alternatively, that his filing of a tort claim notice rendered the grievance process unavailable. (Woodroffe Decl. ¶¶ 29-30.) Woodroffe did not respond to Dr. Shelton's assertion that a single reference to the TLC policy is not a claim.
C. Analysis
1. Woodroffe's Grievance Process
a. Donut Cushion
In TRCI-2016-05-121, Woodroffe grieved Dr. Shelton's failure to replace his donut cushion. (Eynon Decl. Attach. 8 at 8.) While there is no dispute that Woodroffe completed the grievance review process for TRCI-2016-05-123, the record shows that Woodroffe filed his TAC prior to exhausting the administrative review process for this medical indifference claim. Specifically, Woodroffe filed his TAC on August 11, 2016 (ECF No. 15), and the two-level appeal process for TRCI-2016-05-123, did not conclude until November 1, 2016. (Eynon Decl. Attach. 8 at 1.)
That Woodroffe filed a tort claim notice regarding the donut cushion after he had already filed his TAC does not save Woodroffe's failure to exhaust here.
b. Deviated Septum
There is no evidence in the record that Woodroffe filed a grievance regarding Dr. Shelton's treatment of his deviated septum. (Eynon Decl. Attach. 1.)
2. Exhaustion Analysis
a. Donut Cushion
The Court turns first to Woodroffe's single grievance against Dr. Shelton, TRCI-2016-05-123, which Woodroffe did not exhaust until after he filed the TAC in this case. Under these circumstances, this Court is "required by 42 U.S.C. § 1997e(a) to dismiss the complaint." McKinney, 311 F.3d at 1199.
In any event, the record reflects that Woodroffe acquired a donut cushion in July 2016, and he is authorized to purchase additional donut cushions through 2020. (Shannon L. Johnston Decl. ¶¶ 3-5, Feb. 21, 2018.)
Although a plaintiff's failure to exhaust administrative remedies usually results in a dismissal without prejudice, the deadlines to exhaust Woodroffe's administrative remedies have long since passed and therefore he is unable to cure his failure to exhaust this claim.
b. Deviated Septum
Woodroffe never filed a grievance against Dr. Shelton related to his deviated septum and therefore there is no evidence that Woodroffe exhausted his claim.
3. "TLC Policy"
The only mention of the TLC policy in Woodroffe's pleadings with regard to Dr. Shelton is in ¶ 143 of the TAC. The Court agrees with Dr. Shelton that Woodroffe has not stated a valid Eighth Amendment claim based on a single reference to the TLC in his TAC. Accordingly, the district judge should enter judgment for Dr. Shelton on Woodroffe's Eighth Amendment medical indifference claim.
III. FOURTEENTH AMENDMENT DUE PROCESS
A. Woodroffe's Due Process Allegations
Woodroffe's only remaining due process claim is against Curtis, Green, and Jorden. (ECF No. 16 (Order to Dismiss in Part 10 ("The [due process] claim shall proceed against Curtis, Green, and Jorden only on Plaintiff's claim that he was denied due process in a prison grievance proceeding."); see also id. at 6 (referencing prison grievance proceeding No. 2013.08.086).)
In his TAC, Woodroffe alleges that Curtis "denied due process in doc grievance 2013.08.086 in taking such a delay that forced plaintiff to file a tort and stop the grievance process." (TAC ¶ 127.) With respect to Jorden and Green, Woodroffe alleges that they violated due process by ignoring his viable tort claims despite evidence "to prove his claim." (TAC ¶¶ 139-40.)
B. Parties' Arguments
Curtis argues, among other things, that Woodroffe's due process claim against her arising from "grievance 2013.08.086" is barred as untimely. In response, Woodroffe argues a theory of continuing harm to avoid the limitations bar. (Pl.'s Opp. 20-21 ("Defendants also state several claims are time barred but this is not true, as if a violation of rights takes place over a period of time it may be considered to be a 'continuing wrong' or continuing harm, violation etc. That means the statute of limitations may not start to run until the end of that period.").)
Green and Jorden argue that judgment should enter on Woodroffe's due process claim against them because there is no evidence that they were involved in the handling of Woodroffe's grievance. Alternatively, Woodroffe does not have a "constitutional entitlement" to a response to his "letters." (Defs.' Mot. Summ. J. 5-6; Defs.' Mot. J Pleadings 2.) Woodroffe did not respond to Jorden's and Green's arguments.
C. Analysis
1. Defendant Curtis
The Court first turns to Curtis' argument that Woodroffe's due process claim against her is time barred. The grievance on which Woodroffe relies is Snake River Correctional Institution ("SRCI") Grievance No. 2013-08-086 (Ex. 368). By letter dated December 9, 2013, Curtis responded to Woodroffe's claims alleged in SRCI-2013-08-086. However, Woodroffe waited until December 23, 2015, to file a due process claim relating to Curtis' response. (ECF No. 2.)
In the Ninth Circuit, courts must apply the forum state's statute of limitations for personal injury claims to § 1983 claims. See, e.g., Butler v. Nat'l Comm. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) ("Section 1983 does not contain its own statute of limitations. Without a federal limitations period, the federal courts apply the forum state's statute of limitations for personal injury actions."). Under Oregon law, personal injury claims must be commenced within two years of the injury. See Or. Rev. Stat. § 12.110(1).
Woodroffe's due process claim accrued on December 9, 2013. As such, Woodroffe was required to file a complaint within two years of the accrual date. See Knox v. Davis, 260 F.3d 1009, 1012-13 (9th Cir. 2001) (finding that a § 1983 claim accrues when the plaintiff knows or has reason to know of the injury that forms the basis of the action). Instead, Woodroffe filed his original complaint on December 23, 2015, beyond the two-year limitations period. Woodroffe's due process claim against Curtis is time-barred, and the district judge should grant Curtis' motion for summary judgment on Woodroffe's due process claim.
2. Defendants Jorden and Green
Beyond the bare conclusory allegations in his TAC, Woodroffe does not offer any legal argument or evidence in support of his due process claim against Jorden and Green.
The Due Process Clause protects inmates from the deprivation of a liberty interest without due process of law. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974) ("Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law."). However, a due process claim requires a plaintiff to establish the existence of a liberty interest for which the protection is sought. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) ("The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake."). A due process claim involves a determination of (1) whether a governmental actor interfered with a recognized liberty or property interest, and (2) whether the procedures surrounding the alleged interference were constitutionally sufficient. See Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
The law is well established that prisoners do not have a constitutional right to a specific prison grievance procedure. See, e.g., Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (finding that "inmates lack a separate constitutional entitlement to a specific prison grievance procedure"); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) ("There is no legitimate claim of entitlement to a [prison] grievance procedure."); see also Martin v. Roche, No. EDCV 08-0827 SJO (JTL), 2009 WL 32635, at *15 (C.D. Cal. Jan. 5, 2009) (noting that "a prisoner cannot assert a due process claim based on the manner in which his grievances are processed, nor hold the officials who processed his grievances liable for the violations that were the subject matter of his administrative appeals").
Even assuming the truth of Woodroffe's allegation that he sent two letters to Jorden and Green regarding torts allegedly arising from SRCI-2013-08-086 and Jorden and Green failed to respond, those allegations are not sufficient to state a Fourteenth Amendment due process claim. Accordingly, the district judge should grant Jorden's and Green's motion for summary judgment on Woodroffe's Fourteenth Amendment due process claim.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT the State Defendants' Motion for Summary Judgment (ECF No. 91), GRANT Defendant King's Motion to Dismiss (ECF No. 41), DENY Woodroffe's Motion for Summary Judgment Against Robert H. King Jr. (ECF No. 127), DENY AS MOOT Defendant King's Motions to Dismiss (ECF No. 42, 48, 49, and 55), DENY AS MOOT Defendant Jorden and Defendant Green's Motion for Judgment on the Pleadings (ECF No. 54), DENY King's Motion to Declare Plaintiff a Vexatious Litigant (ECF No. 56) and Motion to Revoke Plaintiff's Waiver of Fees (ECF No. 57), and enter JUDGMENT for the State Defendants and Defendant King on all remaining claims. /// /// /// /// /// /// /// ///
Woodroffe does not qualify for the Court's "three strikes" rule because he has not had three or more prior federal actions or appeals dismissed as frivolous. See 28 U.S.C. § 1915(g) ("In no event shall a prisoner bring a civil action . . . if the prisoner has, on 3 or more prior occasions, while incarcerated . . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . ."); Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (holding that a prisoner with three or more strikes may not proceed in forma pauperis and must instead pay the full filing fee up front). --------
SCHEDULING ORDER
This Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (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.
DATED this 28th day of September, 2018.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge