IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

CORWIN DELANO ORR, 

Plaintiff, 

v. 

DERRICK PETERSON and S. NEELY, 

Defendants. 

ACOSTA, Magistrate Judge: 

Introduction 

Civ. No. 3:14-cv-00898-AC 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Corwin Delano Orr ("On"), proceedingpro se, filed this lawsuit against Defendants 

Derrick Peterson and Sean Neely1 ("Defendants") under 42 U.S.C. § 1983 for violations of his 

Fourth, Fourteenth, and Eighth Amendment rights. He also alleges a claim for "negligence." 

Defendants now move for summary judgment. After review of the record, the court concludes 

1

Plaintiffs Complaint names as defendant "S. Neely." However, Defendants stipulated 

"S. Neely" likely refers to Sean Neely, who has entered an appearance in this court. 

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Defendants are entitled to summary judgment. 

Factual Background 

Orr was arrested in February 2014 for possession of cocaine, resisting arrest, and attempted 

assault of a police officer. (Declaration of Jose Martinez ("Martinez Deel.") at ii 5, Ex. 1.) 

Following his arrest, Orr was housed in the Multnomah County Detention Center ("MCDC") to 

await trial. (Id.) While Deputies attempted to book Orr, he became disruptive and verbally 

threatened deputies. (Martinez Deel. at ii 7 .) After a disciplinary hearing, the MCDC hearings 

officer imposed two consecutive fifteen-day periods of disciplinary segregation and a concurrenttenday period of disciplinary segregation. (Martinez Deel. at ii 8, Ex. 3.) 

During his term in segregation, Orr was housed primarily in 4B ("Unit 4B), an 

administrative-segregation unit. (Martinez Deel, ii 8, Ex. 3.) Similar to other areas ofMCDC, Unit 

4B is equipped with heavy metal security doors designed to be fire resistant and to withstand a 

"sustained assault." (Declaration ofRaimond Adgers ("Adgers Deel.") at ii 12.) Moreover, the 

doors are designed in a manner to "accommodate the efficient movement of inmates and personnel 

across units, and must be built to such a scale so as to allow for the easy passage ofindividuals using 

mobility devices." (Adgers Deel. at ii 13.) Because of the purposes for which these doors are 

designed, they are necessarily "very heavy and quite large." (Adgers Deel. at ii 13.) 

Orr alleges that while he was housed in Unit 4B, the security doors opened and shut at all 

hours of the day and night. (Comp!. Ex. 1-5) Because of the weight of the doors, opening and 

closing them created a significant noise which deprived Orr of sleep and "peace of mind." (Comp!. 

Ex. 1-5.) Orr repeatedly complained to MCDC staff that the noise created by the doors caused him 

stress, anxiety, and "constant anger." (Comp!. Ex. 1-5.) Aside from explaining to Orr that the noise 

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was unavoidable, MCDC did not address Orr's concerns. (Comp!. Ex. 1-5.) 

Procedural Background 

Orr filed his complaint on June 4, 2014, alleging violations of his Fourth, Fomteenth, and 

Eighth Amendment rights. Although he does not articulate it as a separate claim, Orr also makes 

reference to a his claims arising under "negligence." (Comp!. at 4.) He seeks an injunction, punitive 

damages, and damages for his pain and suffering. (Comp!. at 7.) Attached to Orr's Complaint are 

four exhibits, 2 all of which appear to be inmate grievance forms filed by Orr during his time at 

MCDC. Defendants' answered Orr's complaint, and thereafter, moved for summary judgment on 

all of Orr's claims. (Dkt. Nos. 16, 20.) Orr did not file a response or otherwise contest any of 

Defendants' arguments and, aside from the exhibits attached to his complaint, did not introduce any 

evidence to rebut Defendants' motion. 

Legal Standard 

A court should grant a motion for summary judgment "ifthe movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." 

FED. R. C1v. P. 56(a). The moving party bears the burden of establishing that no issue of fact exists 

and that the nonmovant cannot prove one or more essential elements of a claim or defense. Celotex 

Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the movant meets his burden, the nonmovant must 

"go beyond the pleadings [] by her own affidavits ... [to] designate specific facts showing that there 

is a genuine issue for trial." Id. (internal quotation marks omitted). Conclusory allegations which 

are unsupported by factual material such as affidavits and documentary evidence are insufficient to 

2

0rr attached to his complaint Exhibits 1, 3, 4, and 5. Thus, although the exhibits are 

numbered up to five, there is no exhibit 2, so only four exhibits are at issue. 

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defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 

However,"[ e ]ven in the absence of opposing affidavits, summary judgment is inappropriate where 

the movant's papers are insufficient on their face." White by White v. Pierce County, 797 F.2d 812, 

815 (9th Cir. 1986) 

On summary judgment, the court is bound to view all facts in a light most favorable to the 

nonmovant and must draw all justifiable inferences in the nonmovant' s favor. Narayan v. EGL Inc., 

616 F.3d 895, 899 (9th Cir. 2010). Further, where the nonmoving party to a motion for summary 

judgment is a pro se litigant, the court must "construe liberally the filings and motions." Thomas 

v. Ponder, 611F.3d1144, 1150 (9th Cir. 2010). 

Discussion 

Defendants advance four arguments in support of their motion for summary judgment. First, 

they argue Defendants cannot be held personally liable for constitutional violations because neither 

Defendant "personally participated in the selection" and installation of the heavy-duty security doors. 

Second, they argue Orr cannot establish the objective and subjective elements of his constitutional 

claim. Third, they argue Defendants are entitled to qualified immunity. Fourth, they contend Orr 

cannot prove damages as part of his negligence claim. 

I. Orr's Request for Injunctive Relief 

Before the court addresses Defendants' arguments, it must address the justiciability of Orr's 

claim for injunctive relief. "The jurisdiction of federal courts depends on the existence of a 'case 

or controversy' under Article III of the Constitution." GTE Cal., Inc. v. Fed. Commc 'n Comm 'n, 39 

F.3d 940, 945 (9th Cir. 1994). As a result of this jurisdictional prerequisite, the court has "an 

independent obligation to consider [issues ofjusticiability, including] mootness sua sponte. Shell 

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Offehore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013). A claim is moot where it 

"loses its character as a live controversy" and the comt cannot grant the plaintiff"effective relief." 

Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 797-98 (9th Cir. 1999), DiRaffael v. Cal. Military 

Dep 't, -Fed.Appx. -, 2015 WL 625197, at* 1 (9th Cir. 2015). "A prisoner's release from prison 

generally moots his claims for declaratory or injunctive relief relating to the prison's policies. 

Bryans v. Fuzi, No. 3:14-cv-00635-JE, 2015 WL 758547, at *2 (D. Or. Feb 23, 2015) (citing Dilley 

v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995)). 

Orr requests injunctive relief in his complaint. Although he does not outline the specifics 

of what form that injunction would take, the court presumes, considering his allegations, that he 

requests either the installation of some mechanism which would reduce the noise created by the 

security doors or his removal from Unit 4B to a quieter area ofMCDC. Regardless, it is undisputed 

that Orr was released from custody on June 13, 2014. As a result, his claims for injunctive relief 

have lost the character of a true legal dispute and are moot. Therefore, the court should grant 

summary judgment in Defendants' favor on Orr's claim for injunctive relief. Still at issue, however, 

is Orr's claim that he is entitled to damages for violations of his constitutional rights. 

II. Claims Under 42 U.S.C. § 1983 

Orr alleges in his complaint claims are for "negligence" and violations of his constitutional 

rights. The constitution does not create a private right of action for rights violations. However, the 

civil cover sheet to Orr's complaint cites 42 U.S.C. § 1983 as the statute giving rise to his cause of 

action. To prevail in an claim under§ 1983, the plaintiff must show"(!) [a] deprivation ofa right 

secured by the Constitution and laws of the United states, and (2) that the deprivation was committed 

by a person acting under color of state law." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th 

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Case 3:14-cv-00898-AC Document 27 Filed 04/09/15 Page 5 of 11
Cir. 2012) (quotation marks and citations omitted). In proving the second element, the plaintiff must 

demonstrate a causal connection between the constitutional deprivation and the defendant's acts or 

omissions. Leer. v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). "The inquiry into causation must 

be individualized and focus on the duties and responsibilities of each individual defendant whose 

acts or omissions are alleged to have caused a constitutional deprivation." Id. 

A. Defendants' Personal Involvement in the Alleged Constitutional Violations 

Defendants argue they are entitled to summaty judgment because neither Defendant 

patticipated in the process of designing, selecting, or installing the security doors. Stated 

alternatively, Defendants ask the court to find that Orr cannot establish a causal element of his claim. 

In support of their argument, Defendants introduced the Declaration ofRaimond Adgers, a captain 

with the Multnomah County Sheriffs Office. He testified to the following: 

The last time security doors were replaced at MCDC was over a period of time across 

the 2007 and 2008 fiscal years. Neither Captain Peterson (who was a Lieutenant at 

the time) nor Deputy Neely participated in the decision[-]making process. 

(Adgers Deel. at ii 22.) 

Through the Adgers Declaration, the Defendants have demonstrated that there is no causal 

link between Orr's alleged constitutional deprivations and Defendants' actions to the extent Orr's 

rights were violated by the design, selection, and installation of the security doors. However, this 

is only one of two cognizable theories ofrecovery. Orr also alleges in the Complaint that the doors 

were operated all night, which deprived him of sleep, and that the doors were "slammed." Implicit 

in Orr's use of the word "slammed" is that the doors were closed in a manner more aggressive than 

necessary. Thus, Orr's claims could be construed as alleging Defendants were personally involved 

in operating the security doors in a manner which infringed on Orr's constitutional rights. 

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Defendants do not introduce evidence which negates the causal element under this second theory of 

recovety. Thus, although the court concludes Defendants may not be held liable under a "design, 

selection, and installation" theory, this does not entitle Defendants to summary judgment on Orr's 

constitutional claims. 

B. Merits of Orr's Constitutional Claims 

Orr pleads his case primarily under the standards established to analyze Eighth Amendment 

claims. (See Comp!. at 4-5) (asserting claims for "deliberate indifference" and "cruel and unusual 

punishment.") However, the record suggests that, at the time Orr was housed in Unit 4B, he was 

being detained pending trial. Thus, Orr's claims are more appropriately construed as arising under 

§ 1983 for violation of Orr's Due Process rights under the Fifth and Fourteenth Amendments. See 

Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) ("Claims by pretrial detainees are analyzed 

under the Fourteenth Amendment Due Process Clause, rather than under the Eighth Amendment."). 

This distinction is largely semantic because "detainees' rights under the FoutteenthAmendment are 

comparable to prisoners' rights under the Eighth Amendment," and comts apply the "same 

standards." Id. 

To determine ifthe conditions of confinement violate a detainee's Due Process rights, the 

comt looks at a two-pronged test consisting of an objective element and a subjective element. The 

objective element is established if the plaintiff shows he or she was "deprived of the minimal 

civilized measure oflife's necessities." Id. The subjective prong, which triggers liability on the part 

of a prison official, is present if the official "acted with 'deliberate indifference' to a substantial risk 

of serious harm," and does so in a "wanton" manner. Id. Mere negligence on the part of prison 

officials is not sufficient. Id. 

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I. The Objective Prong 

In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), the U.S. Supreme court 

articulated several factors which guide the court's analysis of whether the conditions of pretrial 

detention constitute "punishment" and thus violate the detainees due process rights: 

Whether the sa~ction involves an affirmative disability or restraint, whether it has 

historically been regarded as punishment, whether it comes into play only on a 

finding of scienter, whether its operation will promote the traditional aims of 

punishment-retribution and deterrence, whether the behavior to which it applies is 

already a crime, whether an alternative purpose to which it may rationally be 

connected is ·assignable for it, and whether it appears excessive in relation to the 

alternative purpose assigned are all relevant to the inquiry, and may often point in 

differing directions. 

Moreover, the court must "decide whether the disability is imposed for the purpose of punishment 

or whether it is but an incident of some other legitimate governmental purpose." Bell v. Wolfish, 441 

U.S. 520, 538 (1979). Absent a showing of "intent to punish on the part of the detention facility," 

the court's analysis will turn on "whether an alternative purpose to which the restriction may 

rationally be connected is assignable for it, and whether it appears excessive in relation to the 

alternate purpose assigned to it." Id. (quoting Kennedy, 372 U.S. at 168-69) (brackets omitted). 

The court concludes that Orr fails to demonstrate that the noise created by the security door 

was severe enough to meet the objective prong of his Fourteenth Amendment claim. Orr 

demonstrated, through the exhibits attached to his complaint, that the noise disturbed his sleep and 

deprived him of quiet throughout the day. The court will assume, without deciding, that sleep and 

some measure of quiet during waking hours constitute minimal civilized measures of life's 

necessities. However, Orr fails to create a genuine issue of fact that the noise created by the security 

doors is "excessive in relation to the alterative purpose assigned" to them. Defendants showed that, 

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because it is a detention facility, MCDC must have doors which can "accommodate the efficient 

movement of inmates and personnel," including those using mobility devices, while still serving the 

function of preserving employee and inmate safety. To that end, the security doors at issue were 

very heavy and quite large. (Adgers Deel. at~~ 12-13.) The size and weight of the security doors 

is rationally connected to the legitimate purposes for which they were designed and, despite the noise 

which results from the doors' use, the disruption was not "excessive in relation to" the doors' 

purposes. 

In addition, none of the Kennedy factors weigh in Orr's favor. First, although they serve the 

purpose of restricting movement between housing units, prison doors do not "involve an affirmative 

disability or restraint." Second, the noise created by heavy metal doors has not traditionally been 

regarded as punishment. Third, the operation of prison doors "promotes the traditional aims of 

punishment-retribution and deterrence" by keeping the prison facility secure. Fourth operating a 

loud door is not already a crime. Fifth, the doors clearly serve the purpose of securing the prison 

facility. Because Orr cannot prove the objective prong of his Due Process claim, it fails as a matter 

of law, and the court declines to analyze whether he can prove the subjective prong of that claim. 

Therefore, the court should grant summary judgment in Defendants favor on Orr's claims brought 

under§ 1983 for violation of his Due Process rights. 

III. Negligence Claim 

Defendants next argue that to the extent Orr pleads a claim for common-law negligence, 

summary judgment in their favor is appropriate. They contend Orr is precluded from establishing 

damages, a necessary element of a negligence claim in Oregon. The court agrees. 

To prevail on a negligence claim in Oregon, the plaintiff must show:(!) the defendant owed 

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him or her a duty; (2) the defendant breached that duty; (3) a causal link exists between the 

defendant's breach and the plaintiff's injury; and ( 4) damages. Mason v. Householder, 58 Or. App. 

192, 197 (1982). OR. REV. STAT.§ 30.650 provides that: "Noneconomic damages, as defined in 

ORS 31.710, may not be awarded to an inmate in an action against a public body unless the inmate 

has established that the inmate suffered economic damages, as defined in ORS 31.710." Section 

31. 710 defines noneconomic damages to conclude, among other things, "pain, mental suffering, 

emotional distress, humiliation, injury to reputation, ... [and] inconvenience and interference with 

normal and usual activities apart from gainful employment." OR. REV. STAT. § 31.710(2)(b ), held 

unconstitutional on other grounds by Klutschkowski v. PeaceHealth, 354 Or. 150, 151 (2013). 

In the "relief'' section ofhis complaint, Orr requests injunctive relief, fees and costs, punitive 

damages, and "pain [and] suffering compensation." (Campi. at 7.) Because he does not request 

economic damages or produce evidence showing his entitlement to economic damages, Orr may not 

collect damages for pain and suffering under Oregon law. Further, although § 30.650 is silent as to 

punitive damages, OIT does not plead facts or present evidence which shows he is entitled to punitive 

damages. Therefore, the comt concludes Defendants should be granted summary judgment on Orr's 

negligence claim. 

Conclusion 

For the aforementioned reasons, the court should GRANT Defendants' Motion for Summary 

Judgment (Dkt. No. 20) and enter a judgment in Defendants' favor. 

Scheduling Order 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due April 23, 2015. Ifno objections are filed, then the Findings and Recommendation will go 

FlNDlNGS AND RECOMMENDATION - 10 [RMD] 

Case 3:14-cv-00898-AC Document 27 Filed 04/09/15 Page 10 of 11
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. 

DATED this 9th day of April, 2015. 

FINDINGS AND RECOMMENDATION - 11 

~ ...• 

J'1-j V.ACOSTA 

United tates Magish·ate Judge 

[RMD] 

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