UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

RICHARD FERRY, 

Plaintiff , 

v. 

MICHAEL GROWER, 

et al., 

Defendants. 

AIKEN, District Judge. 

6:15-cv-1136-AA 

ORDER 

Plaintiff is an inmate in the custody of the Oregon 

Department of Corrections ( "ODOC") . After a hearing and 

review in which plaintiff was found to have engaged in sexual 

misconduct toward his son during visitation times, plaintiff's 

visitation rights with his son were permanently suspended. 

Plaintiff filed a complaint under 42 U.S. C. § 198 3 

alleging three claims for relief: 1) Cruel and unusual 

punishment in violation of the Eighth and Fourteenth 

Amendments; 2) violation of right to familial association and 

free association in violation of the First and Fourteenth 

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Case 6:15-cv-01136-AA Document 100 Filed 10/12/16 Page 1 of 14
Amendments; 3) denial of substantive due process in violation 

of the Fourteenth Amendment. Amended Complaint (#29) P. 30-

32. Plaintiff seeks declaratory and injunctive relief and 

damages. Id. 

Defendants now move for summary judgment on the following 

grounds: "1) the statute of limitations has passed; 2) the 

constitutional provisions alleged to have been violated were, 

not in fact, violated; 3) most of the individual defendants 

were not involved in the alleged deprivation of rights; 

4)qualified immunity protects all defendants; 5) the Eleventh 

Amendment precludes 'official capacity' claims; and 6) the 

damage claims sought are improper." Defendants Motion for 

Summary Judgment (#60) p. 1. 

Plaintiff has also filed a Motion for Summary Judgment 

(#75). 

The facts giving rise to plaintiff's claims are as 

follows: 1 Plaintiff was convicted of four counts of sexual 

abuse in the first degree and two counts of sexual abuse in 

the third degree. 

Plaintiff has a minor son (herein referred to as "R") . 

1 

Al though plaintiff disagrees with defendants' characterization 

of the visiting room behavior that led to his discipline, 

suspension of visiting privileges, and ultimately his claims 

in this case, the facts set forth herein are supported by 

defendants' submissions of declarations and supporting 

evidence. 

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According to plaintiff his son has autism. On July 28, 2011, 

plaintiff was visiting with R in the playroom at the Oregon 

State Penitentiary ("OSP") which was against the rules because 

R was then ten years old and the playroom had clearly posted 

signs stating that the room was for children under eight. 

Corrections officer Reaves, observed plaintiff "excessively 

wrestling, tickling, & inappropriately touching his son." C/O 

Reaves prepared a memo stating that plaintiff was at times 

"rolling on top of his son, & then his son rolled on top of 

him, sitting over I/M Ferry's genitals for long periods of 

time." Officer Reaves reported his observation and impression 

that the extended physical contact was "excessive and 

inappropriate" to Sgt. Shelia Freeman. 

Sgt. Freeman reviewed a video tape of plaintiff's 

visitation with R and observed "a lot of excessive physical 

contact" between plaintiff and R. She also noted that 

plaintiff seemed to stop the behavior when staff approached or 

other inmates came into the room. Sgt. Freeman reported the 

incident and her observations to higher officers and placed a 

note in the visitor's screen indicating that R would not be 

allowed in the playroom because he was over the eight year old 

age limit. 

Cpl. Panther viewed the video tape of the incident and 

conducted an investigation, including reviewing 19 visits 

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between plaintiff and R. Cpl. Panther concluded thtaq 

plaintiff engaged in a "pattern of non-consensual sexual 

activity for his own stimulation with his autistic child 

committing Sexual Assault" and other rule violations. 

Executive Assistant to the Superintendent Michelle Dodson 

reviewed the video and in accordance with her authority 

terminated plaintiff's visitations rights with R for one year. 

After a disciplinary hearing in October, 2001, plaintiff 

was found to have violated three separate misconduct rules and 

sanctioned to a 180-day suspension fo visitation, 120 days of 

disciplinary segregation, a $200 fine, and 14 days loss of 

privileges. This sanction was approved by Superintendent Premo 

and upheld after administrative review. 

On December 8, 2011, Superintendent Premo, relying on 

Oregon Administrative Rule 291-127-0320, ruled that R would be 

permanently removed from plaintiff's visiting list. On June 

14, 2012, Mr. Grower upheld Superintendent Premo's decision. 

Pursuant to Or. Admin. R. 291-127-0330(2), "[t]he decision of 

the Assistant Director or designee shall be final." Visitors 

can request reconsideration five years after the permanent 

removal. 

In November 2011, plaintiff was involved in a incident 

involving the use of force by correctional officers against 

plaintiff at a the Two Rivers Correctional Institution. A 

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disciplinary hearing decision finding plaintiff guilty of 

staff assault, disrespect, and disobedience of an order was 

reached on December 9, 2011, adopted on December 13, 2011 and 

upheld on review on May 11, 2012. 

In January 2014, plaintiff was tried for sexual abuse 

arising out of the activities in the OSP playroom in 2011, and 

found not guilty. 

On March 20, 2014, in response to a request by plaintiff 

to reinstate visitation, Superintendent Premo referred back to 

his December 8, 2011 visitation review and reiterated his 

decision to uphold the permanent removal of R from plaintiff's 

visitation list. Mr. Grower also responded to plaintiff's 

request by referring plaintiff to Or. Admin. R. 291-127-0320, 

which provides that only the visitor can request review. 

On February 6, 2015, at plaintiff's request, Inspector 

General Williamson considered the OSP discipline in light of 

the 2014 trial. After personally listening to the entire trial 

proceeding, Inspector General Williamson was not persuaded 

that the "interests of justice" required ordering a new 

hearing or vacating the discipline and discipline was 

affirmed. 

Right to Visitation: It is well settled that there is no 

absolute right to prison visitation. See, Dunn v. Castro, 621 

F.3d 1196 at 1204 n. 4 (providing a lengthy list of court 

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Case 6:15-cv-01136-AA Document 100 Filed 10/12/16 Page 5 of 14
decisions upholding denial of visitation to prisoners). 

(9th Cir. 2010) Inmates have no constitutional right of "access 

to a particular visitor." Kentucky Dep't of Corrections v. 

Thompson, 490 U.S. 454, 461 (1989); Keenan v. Hall, 83 F.3d 

10 8 3 10 9 2 ( 9th Cir . 19 9 6 ) . 2 

In Overton v. Bazzetta, 539 U.S. 126, 131 (2003), the 

United States Supreme Court addressed incarceration and what 

it necessarily does to inmates' rights. At issue was a 

Michigan regulation limiting certain types and numbers of 

visitors, requiring visitors to be on an approved visitors 

list, and suspending all visits (except for clergy and 

attorneys) for two years for inmates who commit multiple rule 

violations. The Court ruled that the regulation did not 

violate the First, Eighth, or Fourteenth Amendment. Overton 

controls the outcome of this case. The withdrawal of 

plaintiff's visitation privileges in this case was reasonable 

and justified under the circumstances and did not violate 

plaintiff's constitutional rights. 

Statute of limitations: 42 U.S.C. § 1983 does not contain a 

specific statute of limitations for constitutional torts. 

Therefore, federal courts "borrow" the state statute of 

2 

Inmates also have no right to contact visitation. See, Barnett 

v. Centoni, 31 F. 3d 813, 817 (9th Cir. 1994) (per curiam); 

Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993); Toussaint 

v. McCarthy, 801 F.2d 1080, 1113-14 (9th Cir. 1986). 

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limitations in 42 U.S.C. § 1983 actions. See, Wallace v. 

Kato, 549 U.S. 384, 387 (2007); Wilson v. Garcia, 471 U.S. 

261, 266 (1985); Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 

1999); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991). 

In Oregon, the two year statute of limitations for 

personal injury actions, O.R.S. 12 .110 (1) applies to civil 

rights actions under 42 U.S.C. § 1983. Sain v. City of Bend, 

309 F.3d 1134, 1139 (9th Cir. 2002); Cooper v. City of Ashland, 

871 F.2d 104, 105 (9th Cir. 1988); Davis v. Harvey, 789 F.2d 

1332 (9th Cir. 1986). 

Federal law determines when a cause of action accrues and 

the statute of limitations begins to run on a § 1983 claim. 

W a 11 ace v . Kato, 5 4 9 U . S . at 3 8 8 . A federal claim accrues 

when the plaintiff know or has reason to know of the injury 

which is the basis of the action. Pouncil v. Tilton, 704 F.3d 

568 (9th Cir. 2012), cert denied, 134 S.Ct. 76 (1213); see 

also, Morales v. City of Los Angeles, 214 F.3d 1151, 1154 (9th 

Cir. 2000); Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 

(9th Cir. 1991); DeAnza Properties X, Ltd. v. County of Santa 

Cruz, 936 F.2d 1084, 1086 (9th Cir. 1991); Vaughan, supra, 927 

F . 2 d 4 8 6 , 4 8 0 ( 9th Cir . 1 9 91 ) . 

In addition, federal law controls when an action 

"commences" for the purposes of the statute of limitations. 

Sain, supra at 1136. Under FRCP 3, a 1983 action commences in 

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Case 6:15-cv-01136-AA Document 100 Filed 10/12/16 Page 7 of 14
federal district court for purposes of the statute of 

limitations when the complaint is filed. Id. at 1138. 

The key events giving rise to plaintiff's claims in this 

case are as follows: 

* July 2011: initial termination of visitation. 

* August 2011: Misconduct report. 

* October 2011: Disciplinary Hearing regarding sexual 

* December 2011: Permanent removal of R from visiting 

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assault and other violations at OSP. 

list 

* Disciplinary Hearing regarding staff assault and other 

violations at TRCI. 

* May 2012: Decision upholding discipline at OSP. 

May 2012: Decision upholding discipline at TRCI. 

* May 2012: Review of Intensive Management Unit 

Placement. 

* June 2012: Decision upholding permanent removal of R 

from plaintiff's visiting list. 

I find that plaintiff's claims accrued at the time the 

final decisions regarding his discipline and visitation were 

made in 2012, and the statute of limitations began to run at 

that time. Plaintiff filed this action on June 2 3, 2 015. 

Accordingly, plaintiff's claims are time barred. 

It is irrelevant that plaintiff requested that his 

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Case 6:15-cv-01136-AA Document 100 Filed 10/12/16 Page 8 of 14
discipline and visiting rights be reconsidered in 2014. Knox 

v. Davis, 260 F.3d 1009 (9th Cir. 2001); see also, Pouncil v. 

Tilton, supra, at 581 (questioning Knox) . 3 

Based on the foregoing, I find that defendants' alleged 

conduct did not violate plaintiff Constitutional rights. I 

further find that assuming arguendo plaintiff's rights were 

violated, his claims are barred by the statute of limitations. 

Therefore, defendants are entitled to judgment as a matter of 

law. 

I further find with regard to defendants' other arguments 

as follows: 

Eleventh Amendment: To the extent plaintiff seeks to hold 

defendants liable for damages in their official capacities, 

plaintiff's claims are barred by the Eleventh Amendment. 

Brown v. Oregon Department of Corrections, 751 F.3d 983, 989 

(9th Cir. 2014). 

Personal involvement: The United States Supreme Court has held 

that state officials are not liable under § 1983 unless they 

play an affirmative part in the alleged constitutional 

violation. Rizzo v. Goode, 423 U.S. 362, 377 (1976). In 

3 

Moreover, the final decision on visitation cannot be 

reconsidered for five years. Or. Admin. R. 291-127-0320(4). 

Plaintiff alleges that he will be released in 2016, so it is 

probable that the issue will be rendered moot before five 

years has elapsed. 

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Case 6:15-cv-01136-AA Document 100 Filed 10/12/16 Page 9 of 14
addition, "[a] plaintiff must allege facts, not simply 

conclusions, that show that an individual was personally 

involved in the deprivation of his civil rights. Liability 

under § 1983 must be based on the personal involvement of the 

defendant." Barren v. Harrington, 152 F.3d 1193, 1194 (9th 

Cir. 1998), cert. denied, 525 U.S. 1154 (1999). 

The crux of plaintiff's claims in this case are the 

decisions regarding whether plaintiff's visitation with his 

son would be permanently discontinued. The exhibits and 

declarations submitted in support of defendants' motion for 

summary judgment establish that Officer Reves, Sgt. Freeman, 

Cpl. Panther, Ms. Dodson, Ms. Parker, Mr. Williamson, Mr. 

Belleque and Ms. Barton had no responsibility in making the 

OSP discipline or visitations decisions. Al though these 

defendants may have reported, investigated, and reviewed 

evidence, the ultimate discipline and decision to permanently 

to remove plaintiff's son from plaintiff's visiting list were 

made by defendants Premo and Grower. 

There is no remaining genuine issue of material fact that 

the other individuals named as defendants in this case had 

minimal or no involvement in the ultimate decisions giving 

rise to plaintiff's claims. Therefore, they are entitled to 

judgment as a matter of law. See, Ballantyne v. Taylor, 2015 

WL 9581811 at *3 (D. Or. Dec. 29, 2015). 

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Case 6:15-cv-01136-AA Document 100 Filed 10/12/16 Page 10 of 14
Qualified immunity: 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). 

While public officials are thus generally protected from 

civil liability under the doctrine, the defense will fail 

where their actions violate law that is clearly established, 

because "a reasonably competent public official should know 

the law governing his conduct." Id. at 819. "The qualified 

immunity standard 'gives ample room for mistaken judgments' by 

protecting 'all but the plainly incompetent or those who 

knowingly violate the law .. '" Hunter v. Bryant, 502 U.S. 224 

(1991) (quoting Malley v. Briggs, 475 U.S. 335341 (1986). An 

official should be denied qualified immunity only when "[t]he 

contours of the right are sufficiently clear that a reasonable 

official would understand that what he is doing violates that 

right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). 

Until recently courts considering an official claim of 

qualified immunity followed the two-step protocol established 

in Saucier v. Katz, 533 U.S. 194 (2001), which required the 

court first to determine whether the defendant violated a 

constitutional right and then to determine whether that right 

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was clearly established. See, Pearson v. Callahan, 555 U.S. 

223 (2009) (overturning Saucier in part). In Pearson v. 

Callahan, the Supreme Court reversed this earlier rule and 

gave courts discretion to grant qualified immunity on the 

basis of the "clearly established" prong alone, without 

deciding in the first instance whether any right had been 

violated. Id. Thus, we may grant qualified immunity if 'the 

facts that a plaintiff has alleged or shown [do not] make out 

a violation of a constitutional right' or if 'the right at 

issue was [not] clearly established at the time of the 

defendant's alleged conduct.' Id. at 816, 818 (internal 

citations omitted). See also, James v. Rowlands, 606 F.3d 646 

(9th Cir. 2010) 

In this case, I find that defendants response to 

plaintiff's conduct did not violate any of plaintiff's clearly 

established constitutional rights. All of defendants' alleged 

conduct at issue in this case was consistent with a reasonable 

understanding of the law on prisoner visi ta ti on and each 

defendant acted in accordance with the administrative 

regulations and in a way that a reasonable corrections officer 

would act under the circumstances. Therefore, even if some 

minimal encroachment on plaintiff's rights did arguably occur, 

defendants are qualifiedly immune from liability for damages 

because their response was a reasonable interpretation of the 

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law governing the circumstances they confronted. Brosseau, 543 

U.S. 194, 202; Harlow, 457 U.S. 800. 

Damages: Pursuant to the PLRA, 42 U.S.C. § 1997e(e), "no 

Federal civil action may be brought by a prisoner confined in 

a jail, prison, or other correctional facility, for mental or 

emotional injury suffered while in custody without a prior 

showing of physical injury." See generally, Oliver v. Keller, 

289 F.3d 623 (9th Cir. 2002) (discussing extent of physical 

injury necessary to sustain a claim). 

In this case, plaintiff is suing for denial of his 

visitation rights and is not entitled to damages for mental 

and emotional distress. In addition, plaintiff has not 

submitted any evidence of economic damages, and has presented 

no evidence that would justify an award of punitive damages. 

Conclusion: Based on the foregoing, 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. 

Defendants' Motion for Summary Judgment (#60) is allowed. 

Plaintiff's Motion for Summary Judgment (#75) is denied. 

The Clerk is directed to enter a judgment dismissing this 

action. 

I find that an appeal from this order would be frivolous 

Ill// 

//Ill 

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Case 6:15-cv-01136-AA Document 100 Filed 10/12/16 Page 13 of 14
and not taken in good faith. Therefore, plaintiff's in forrna 

pauperis status is hereby revoked. 

DATED this {'}-. day of 

Ann Aiken 

United States District Judge 

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