UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

LEMUEL FRED HENTZ, 

Plaintiff, 

v. 

L. PARKER, et al., 

Defendants. 

Mcshane, District Judge. 

2:14-cv-02039-MC 

ORDER 

Plaintiff, an inmate in the custody of the Oregon 

Department of Corrections, filed a complaint under 42 U.S.C. 

§ 1983 alleging that defendants violated his rights to free 

speech, due process, and protection against cruel and unusual 

punishment. Defendants now move for summary judgment (#85). 

The facts giving rise to plaintiff's claims are as 

follows: On January 2, 2013, plaintiff asked the OSP law 

library coordinator to notarize an "Oath of Office" for a 

judge pro tempore. Subsequently, plaintiff sent the 

notarized oath to the Oregon Secretary of State, who rejected 

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Case 2:14-cv-02039-MC Document 122 Filed 11/10/16 Page 1 of 9
it and returned it along with an explanatory note to ODOC. 1 

Due to this conduct, plaintiff was found guilty of "False 

Information to Employees I" and "Forgery," both of which are 

major rule violations. As a consequence of the rule 

violations, plaintiff was permanently terminated from his 

inmate work assignment in the Oregon Correctional Enterprise 

(OCE) laundry. 

After plaintiff was terminated from his laundry job, 

defendant Parker printed a copy of plaintiff's card photo and 

placed it on a clipboard in his work area to remind himself to 

clean out plaintiff's locker. This is his practice for all 

similarly situated OCE workers. Parker Declaration (#91). 

On March 30, 2014, April 2, 2014, and August 10, 2014, 

plaintiff was issued "conduct orders" for breaking institution 

rules. Conduct orders are low level, informal disciplinary 

measures which confine an inmate to his or her cell for 24, 

48, or 72 hours unless otherwise authorized by staff. See, OAR 

291-105-0010(4); Hearn Declaration (#89) att. 3. 

On September 9, 2013, ODOC Health Services requested a 

move for plaintiff to a single-level facility for medical 

reasons. On September 13, 2013, ODOC moved plaintiff to the 

1 

The court previously dismissed plaintiff's claim against the 

Secretary of State employee who returned the "oath of 

office." 

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Oregon State Correctional Institution (OSCI) . Because OSCI is 

a small facility designated normally for inmates close to 

release, ODOC subsequently moved plaintiff to the Two Rivers 

Correctional Institution (TRCI), another medically suitable 

facility, on September 26, 2013. Breyman Declaration (#88). 

Plaintiff's Amended Complaint (#66) alleges: 

1. Defendant Betty Bernt, who is the Public/Legislative 

Information Officer for OCE, racially discriminated against 

him for causing his termination from his OCE laundry job. 

2. Defendant Correctional Officer Luke Parker posted 

plaintiff's photo in his work station to humiliate plaintiff, 

racially discriminate against him and subject him to cruel and 

unusual punishment. Other inmates subsequently teased 

plaintiff by calling him "your Honor" and making comments such 

as asking him to sign "release papers." 

3. The remaining defendants actions in issuing four 

conduct orders confining plaintiff to his cell for periods of 

24 and 72 hours constituted cruel and unusual punishment, 

deprived him of due process, and was racially motivated. 

Plaintiff argues in his Response (#116) - for the first 

time - that defendants Jackson, LaGore, and Grady retaliated 

against him with false disciplinary charges. However, 

plaintiff did not allege this retaliation by false 

disciplinary charges in his Amended Complaint. The only 

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retaliation allegation in plaintiff's Amended Complaint is 

that his transfer from OSP to OSCI was retaliatory. 

To the extent plaintiff's allegation that the 

disciplinary reports were retaliatory is intended to 

constitute a claim, it is not alleged in the operative 

pleading (plaintiff's Amended Complaint) and is not properly 

before the court. In any event, plaintiff has not alleged any 

facts to support a First Amendment retaliation claim based on 

the disciplinary orders. 

Defendants are entitled to judgment as a matter of law as 

to plaintiff's claim that defendant Bernt caused his 

termination from his OCE laundry job because it is undisputed 

that she did not make any decision regarding plaintiff's 

inmate work assignment. Bernt Declaration (#86). Plaintiff 

has not presented any evidence to the contrary and there is no 

material issue of fact that defendant Bernt did not 

participate in the decision to terminate plaintiff from the 

OCE work program. 

It is undisputed that defendant Parker printed 

plaintiff's ID photo and placed it on a clipboard hanging in 

his work station. However, the record reflects that it is 

defendant Parker's practice to do so in order to remind him to 

remove property from plaintiff's locker. Parker Declaration 

(#91) . Plaintiff has not presented any evidence that this 

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action was racially motivated or established differently from 

other inmates in this regard. I find that it did not 

constitute cruel and unusual punishment as a matter of law. 

Defendants acknowledge that defendant Parker made the 

remark that plaintiff should be referred to as "your Honor." 2 

However, the Constitution does not impose liability for 

ordinary trash talk. Watison v. Carter, 668 F.3d 1108, 1113 

(9th Cir. 2012) ("[T]he exchange of verbal insults between 

inmates and guards is a constant, daily ritual observed in 

this nation's prisons of which (the courts) do not approve, 

but which do not violate the Eighth Amendment"); Oltarzewski 

v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (vulgarity and 

verbal harassment not actionable; Guat v Sunn, 810 F.2d 923, 

925 (9th Cir. 1987) ("[I] t trivalizes the Eighth Amendment to 

believe that a threat constitutes a constitutional wrong"). 

Because mere verbal harassment without more is not actionable, 

plaintiff's allegation that defendant Parker teased him about 

his fraudulent claim to a judicial position fails to state a 

claim. Moreover, plaintiff fails to allege that defendant 

Parker's conduct caused him any physical injury and therefore 

2 

A certain amount of such teasing could reasonably be expected 

under the circumstances. It was plaintiff's own actions in 

attempting to obtain a false certification of judicial office 

that led to defendant Parker's comment - which I note is 

constitutionally protected under the First Amendment. 

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is not actionable under the PLRA. See, 42 U.S.C. § 1997e(e). 

The factual basis underlying plaintiff's conduct order 

claims is set forth in defendants' motion ( #85) and the 

defendants' declarations. The record is clear that in each 

instance, committed minor infractions and was sanctioned to 

the usual in-cell restriction for 24 to 72 hours. 

To state a claim for a violation of due process under 42 

U.S.C. § 1983, a plaintiff must invoke a federally protected 

liberty interest. Jackson v. Carey, 353 F.3d 750, 755 (9~ Cir. 

2003). An inmates liberty interests are limited to freedom 

from restraints that impose an "atypical and significant 

hardship on the inmate in relation to the ordinary incidents 

of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). 

24-hour - 72 hour cell-ins do not implicate a constitutional 

liberty interest because they do not "present the type of 

atypical, significant deprivation in which a state might 

conceivably create a liberty interest. at 486. 

Plaintiff's cell-ins do not constitute an Eight Amendment 

violation because he has not alleged that they resulted in a 

deliberate indifference to his serious medical needs, Estelle 

v. Gamble, 429 U.S. 97, 104 (1976). A temporary restriction 

on access to ice does not constitute a serious medical need. 

Moreover, defendants declarations indicate that plaintiff 

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easily could have obtained ice by asking his cell-mate or a 

staff member to bring it to him. 

In summary, plaintiff 1 s claim that the disciplinary 

measures violated his rights to due process, equal protection 

and to be free from cruel and unusual punishment fail because 

he has not submitted any evidence that he was subjected to any 

serious or atypical hardship or treated differently from 

similarly situated inmates. Plaintiff's Eighth Amendment 

claim fails because he has failed to establish that defendants 

were deliberately indifferent to his serious medical need. 

Plaintiffs alleges that his personal property was 

mismanaged during his transfers. However, plaintiff does not 

identify any specific individual or defendant that was 

allegedly responsible for the matters he complains of. In 

addition, plaintiff / s claims against the unidentified Doe 

defendants are apparently based on various rules regarding 

inmate property during transfers and fail to state a 

constitutional claim. 

To the extent plaintiff may be attempting to allege that 

his institutional transfers were discriminatory or 

retaliatory, he has failed to allege any defendant that was 

responsible for the transfers. Moreover, it is undisputed on 

the record before the court that plaintiff's transfers were 

for medical reasons. Breyman Declaration (#88). Plaintiff 1 s 

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reliance on the one page handwritten doctor's order (exhibit 

6) is misplaced. It does not state that plaintiff is to be 

kept at OSP for six months. 

Qualified immunity shields government officials from 

liability for damages when they make decisions that, even if 

constitutionally deficient, reasonably misapprehend the law 

governing the circumstances they confronted. Brosseau v. 

Haugen, 543 U.S. 194, 202 (2004); Harlow v. Fitzgerald, 457 

U.S. 800 (1982). 

I find for the reasons explained above that none of 

defendants' alleged actions violated plaintiff's clearly 

established constitutional rights. However, even if some 

minimal encroachment did arguably occur, defendants are 

qualifiedly immune from liability for damages because they 

acted reasonably and misapprehended the law governing the 

circumstances they confronted. Brosseau, 543 U.S. 194, 202; 

Harlow, 457 U.S. 800. 

I find that there are no genuine issues of material fact 

remaining in this case and that defendants are entitled to 

judgment as a matter of law. Fed.R.Civ.P. 56(c). Defendants' 

Motion for Summary Judgment (#85) is allowed, The Clerk of 

the Court is directed to enter a judgment dismissing this 

proceeding. 

Any appeal from this order or the judgment dismissing 

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this case would be frivolous and not taken in good faith. 

Therefore, plaintiff's in forma pauperis status is hereby 

revoked. 

IT IS SO ORDERED. 

DATED this 10 day of November, 2016. 

L--~--- ~~~~-

Michael Mcshane 

United States District Judge 

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