Page 1 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

Lynn S. Walsh, OSB #924955 

email: walsh@europa.com 

209 SW Oak Street 

Suite 400 

Portland, Oregon 97204

Telephone: 503-790-2772 

Facsimile: 503-227-6840 

Attorney for Plaintiff 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

JESSE FANUS, 

Plaintiff, 

vs. 

JEFF PREMO, 

 Defendants. 

NO. 

COMPLAINT 

Violation of Civil Rights (42 U.S.C. § 

1983) - Declaratory and Injunctive 

Relief, and Damages 

 This is a civil rights action brought under 42 U.S.C. § 1983 concerning the imposition of 

unconstitutional rules, policies, practices and procedures used by the superintendent of the 

Oregon State Penitentiary when classifying and housing a prisoner on death row. Plaintiff, who 

does not currently have a death sentence, is housed on death row pursuant to ODOC’s automatic 

placement rule which fails to provide the most basic procedural protections to death row 

prisoners. Plaintiff is seeking relief declaring the automatic placement rule as unconstitutional, 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 1 of 10
Page 2 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

injunctive relief requiring the prison to classify plaintiff pursuant to the classification procedures 

used in classifying all prisoners, and damages for the loss of his liberty interest. 

Jurisdiction

1. This court has jurisdiction over the subject matter of this Complaint under 42 

U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4). 

Venue

2. Venue is proper within the District of Oregon because all of the events giving 

rise to this claim occurred in this judicial district, and all defendants reside in this judicial 

district. 28 U.S.C. § 1391(b). 

Parties

3. Plaintiff Jesse Fanus is a prisoner of the Oregon Department of Corrections 

(ODOC) and he is currently confined on Death Row at the Oregon State Penitentiary (OSP) in 

Salem, Oregon. 

4. Defendant Jeff Premo is the superintendent of OSP and an employee of ODOC. 

He is sued in both his official and individual capacity. As superintendent, Mr. Premo is 

ultimately responsible for all aspects of a smooth running institution. As such, he is responsible 

for directing the daily operation of the institution in compliance with the United States 

Constitution, federal statutes, and correctional case law. At all times relevant, Mr. Premo was 

acting under color of state law. 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 2 of 10
Page 3 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

Facts 

5. In 1999 plaintiff Jesse Fanus was convicted of aggravated murder and sentenced 

to death. He was also convicted of lesser charges and sentenced to a total of 17.5 years with no 

eligibility for any form of release. 

6. Since his transfer to ODOC shortly after sentencing in 1999, Mr. Fanus has been a 

resident of Death Row at OSP. 

7. In October, 2012, Mr. Fanus’ death sentence was set aside upon his motion for 

post-conviction relief because of the ineffectiveness of his trial counsel. He is currently 

awaiting a new sentencing trial. 

8. Although Mr. Fanus currently does not have a death sentence and wishes to be 

moved to general population, Mr. Premo refuses to move Mr. Fanus from death row. His 

current criminal defense lawyer, Richard Wolf, has made countless efforts to persuade the prison 

authorities to move Mr. Fanus off Death Row. Likewise, Mr. Fanus has exhausted his 

administrative remedies regarding this issue by filing a grievance and grievance appeal 

requesting reclassification and transfer off of death row. 

9. On or about September 12, 2013, Mr. Fanus’ criminal defense lawyers filed (in 

State Court) a Motion to Compel The Oregon Department of Corrections to Move Mr. Fanus to 

General Population, Or, In the Alternative, to Limit the State’s Evidence on Capital Sentencing 

Question “Two,” Codified at ORS 163.150(1)(b)(B). Question “Two” asks “Whether there is a 

probability that the defendant would commit criminal acts of violence that would constitute a 

continuing threat to society.” 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 3 of 10
Page 4 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

10. Mr. Fanus was essentially arguing in State Court that his conditions of 

confinement violate the Due Process Clause and the Eighth Amendment against cruel and 

unusual punishment. In addition, Mr. Fanus was arguing that state actors were preventing Mr. 

Fanus from developing relevant evidence permitting jurors to give a negative response to 

sentencing question “Two.” 

11. The Oregon Department of Justice (ODOJ) argued that the state court could not 

interfere in the operations of ODOC and suggested alternatives such as the filing of an 

administrative grievance and the subsequent filing of a 1983 federal rights lawsuit. The state 

court agreed. As a result, Mr. Fanus has followed the suggestions of the ODOJ and has 

exhausted the administrative grievance procedure (the grievance and appeals were denied), and 

is now filing this lawsuit alleging a violation of his civil rights, specifically the violation of the 

Due Process Clause. 

Conditions on Death Row vs. General Population

12. In Oregon, Death Row is a particular location in the Oregon State Penitentiary 

where the conditions of confinement are far more restrictive, with substantially fewer freedoms 

and privileges than those which exist in General Population. All prisoners with a death sentence 

are housed on Death Row with the exception of two, a woman who is housed in the women’s 

prison, and a man with special medical issues. 

13. All prisoners who are convicted of Aggravated Murder, but do not have death 

sentences, are subject to the classification process, and housed in the General Population of the 

prisons (assuming they have no disciplinary, security, or other special concerns). 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 4 of 10
Page 5 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

14. Plaintiff’s conditions of confinement on death row are extreme and atypical of 

conditions in the general population units at OSP. On Death Row, prisoners spend the vast 

majority of their time in their cells, up to approximately 22-23 hours per day. On Death Row, 

the prisoners eat all of their meals alone in their cells, they are allowed only 1.5 hours of yard 

time per day, five days per week, where they are limited to certain caged outdoor areas. They 

are provided another 40 minute walk per day for showering, using the phone, exercise, and 

socialization. All visitation is non-contact visitation (i.e., through glass and talking on a phone). 

There are almost no educational programs, and no drug and alcohol treatment programs available 

to death row prisoners. There are few jobs available to Death Row prisoners, at wages far less 

than those available in General Population. In short, Death Row prisoners lead a life of 

isolation, they are deprived of meaningful human contact, and they are deprived of most other 

incentives and privileges that are available in prison life. They live what can only be described 

as a miserable existence until they die a natural death, or, in very rare circumstances, executed. 

15. In general population, prisoners have access to numerous educational programs, 

drug and alcohol programs, job training, good jobs, long hours of recreation, games, sports, 

contact visits, hobbies, meals in the chow hall, and socialization with other prisoners. They 

have access to the open prison yard, complete with a jogging track and basketball courts. They 

enjoy the near-constant company of others. They may socialize and play games together in 

common areas, they eat communal meals every day, receive regular contact visits from family 

and friends, and are provided group religious and educational programming. In other words, the 

experience for general population inmates at OSP or other ODOC facilities is hardly a solitary 

one. 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 5 of 10
Page 6 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

16. In general population, even those convicted of aggravated murder and serving life 

sentences, have available to them the incentives and privileges that may be available to all other 

prisoners. 

Classification Procedures 

17. Inmates are assigned a Custody Level which is one of five levels of supervision 

assigned to an inmate through initial and classification review procedures. The highest Custody 

Level is Level 5 which is assigned where an inmate “has demonstrated behaviors causing serious 

management concerns, or has demonstrated behaviors that in the judgment of the Department 

present a threat sufficient to require special security housing on intensive management status,” or 

“has a sentence of death.” 

18. In short, the Oregon Administrative Rules require death row offenders to be 

automatically and permanently placed in the above-described restrictive conditions—contrary to 

the practice for all other prisoners in Oregon. (See OAR 291-104-0111.) These prisoners are 

never evaluated using the multi-factor scoring guide. Their sentence conclusively determines 

their placement. They are likewise ineligible for any subsequent classification review by 

ODOC. In other words, a death row prisoner’s placement is permanent. 

19. Up until the time that Mr. Fanus began asking to be moved to general population, 

the rule did not prevent reclassification for those whose death sentences have been overturned. 

ODOC has since amended the rule so that a Level 5 classification includes the offender who 

“[h]as a sentence of death, or is pending retrial in a case in which a death sentence may be 

reimposed.” (emphasis supplied.) OAR 291-104-0111. 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 6 of 10
Page 7 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

20. Mr. Premo and ODOC have failed to provide any process whatsoever to Mr. 

Fanus before imposing, and while continuing to impose, the harsh conditions of death row upon 

Mr. Fanus. 

ODOC’s Classification Rule regarding Death Row Inmates Serves no Legitimate 

Penological Purpose 

21. According to Frank Thompson, Superintendent of OSP December 1994-April 

1998, research indicates that inmates released back to general population from death row do not 

represent a greater security risk than would be the case with other inmates convicted of violent 

crimes, but were never on death row. See “A Statement in Favor of Passage of the Oregon 

Death Penalty Repeal Amendment (2014)” by Frank Thompson, Retired Oregon Prison 

Superintendent. 

22. Likewise, Mr. Thompson states that in states that do not have the death penalty, 

inmates serving sentences of life without the possibility of parole are not found to pose a greater 

or unique risk to prison operations. He also states that prisoners serving life without the 

possibility of parole are less likely than other inmates who might be sentenced for violent crimes 

to become involved in other violent behaviors. “Put another way, according to available data, as 

a group, inmates released from death row to appropriate levels of security custody and general 

population, do not present a unique or increased risk.” Where there is a security risk, 

implementation of the classification system will guide appropriate housing and supervision 

arrangements so that threats to security can be properly managed. See “A Statement in Favor of 

Passage of the Oregon Death Penalty Repeal Amendment (2014)” by Frank Thompson, Retired 

Oregon Prison Superintendent. 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 7 of 10
Page 8 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

23. In light of the available studies, ODOC’s automatic placement of prisoners on 

death row serves no legitimate penological purpose. 

CLAIM FOR RELIEF

(Violation of 42 USC 1983) 

24. Mr. Fanus’s current placement on death row imposes an atypical and significant 

hardship on him. 

25. Mr. Fanus has a protectable liberty interest in avoiding his current placement on 

death row. 

26. ODOC’s automatic placement policy for those who have a death sentence (and 

those with a pending retrial where the death sentence may be imposed) fails to provide the most 

basic procedural protections to those offenders. 

27. ODOC’s automatic placement policy for those who have a death sentence (and 

those with a pending retrial where the death sentence may be imposed) serves no legitimate 

penological purpose. 

28. In addition, the permanent nature of the policy forecloses any after-the factprocess, i.e., plaintiff has had no subsequent opportunity to contest his placement because 

classification review is not available to death row inmates on any basis. 

29. In short, Plaintiff has been deprived of safeguards against erroneous placement in 

conditions that are more restrictive than necessary by virtue of his pending retrial where there is 

the possibility of the imposition of the death penalty. 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 8 of 10
Page 9 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

30. ODOC’s classification policies, procedures and rules violate rights secured to 

Mr. Fanus by the Eighth and Fourteenth Amendments to the U.S. Constitution and are thus a 

violation of 42 U.S.C. § 1983. 

31. Defendants’ unconstitutional conduct is ongoing and will continue to violate 

Plaintiff’s constitutional rights. 

32. Mr. Fanus seeks declaratory relief declaring that ODOC’s classification policies, 

rules, procedures and practices as a violation of the due process clause of the 14th Amendment. 

33. Mr. Fanus seeks injunctive relief requiring Mr. Premo to comply with the 

demands of due process, and perform a classification review for Mr. Fanus, and to house him 

based upon the review. 

34. Plaintiff is also seeking economic and noneconomic damages for the 

unconstitutional conditions of confinement in an amount to be determined at trial, and his 

attorney fees and costs pursuant to 42 U.S.C. § 1988. 

REQUEST FOR RELIEF

WHEREFORE, the Plaintiff requests relief as follows: 

a. For a preliminary and permanent injunction requiring Mr. Premo to perform a 

classification review for Mr. Fanus and to house him based upon that review; 

b. A declaratory judgment pursuant to 28 USC § 2201 finding that the current ODOC 

classification rules regarding death row inmates are unconstitutional; 

c. Economic and non-economic damages resulting from the unconstitutional conditions 

of confinement; 

d. An award of costs and attorney’s fees under 42 U.S.C. § 1988; and 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 9 of 10
Page 10 COMPLAINT LYNN S. WALSH,

OSB#92495 

Suite 400 

209 SW Oak Street 

Portland, Oregon 97204 

(503) 790-2772

walsh@europa.com

e. Such other relief as the Court deems just and equitable. 

DATED: 6/10/2014 /s/ Lynn S. Walsh 

Lynn S. Walsh, OSB #924955 

(503)790-2772 

walsh@europa.com

Attorney for plaintiff 

Case 6:14-cv-00935-AA Document 1 Filed 06/10/14 Page 10 of 10