UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

DW A YNEEDW ARD ABRAHAM 

Plaintiff, 

v. 

OREGON DEPARTMENT OF 

CORRECTIONS; MAX WILLIAM, 

Director ofODOC; DAN JOHNSON, 

Superintendent of PCRI; STAN CZERNIAK, 

Assistant Director of ODOC; MS. 

BALLARD, Counselor at PRCI; DON 

WILLIAM, Program Service Manager, PRCI; 

GINGER MARTIN, Assistant Director of 

ODOC Transitional Services, 

Defendants. 

ACOSTA, Magistrate Judge: 

Introduction 

No. 2:13-cv-00827-AC 

FINDINGS AND 

RECOMMENDATIONS 

Plaintiff Dwayne Edward Abraham ("Abraham") filed suit against the Oregon Department 

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of Corrections ("ODOC"), three ODOC employees, and three employees of Powder River 

Correctional Institution ("PRCI") (collectively "Defendants"). Defendants now move for summary 

judgment on all of Abraham's claims. For the reasons discussed herein, summary judgment should 

be granted in Defendants' favor. 

Factual Background 

In February 2004 Abraham pleaded guilty to one count of delivery of a controlled substance 

and one count of endangering the welfare of a minor. (Deel. Of Dwayne Edward Abraham 

("Abraham Deel.") Ex. 1at1). He was sentenced to forty months in prison and thirty-six months 

of post-prison supervision. (Abraham Deel. Ex. 1 at 2.) Abraham's sentencing document also 

provided he "may be considered for ... [the] alternative incarceration program" ("AIP"). (Abraham 

Deel. Ex. 1 at 2.) The AIP is a "highly structured corrections program that includes intensive 

interventions, rigorous personal responsibility and accountability, physical labor, and service to the 

community." OAR 291-062-0110(1). If an inmate successfully completes the program, he is 

immediately released into the community on post-prison supervision even if the inmate has not 

served the entire term to which he was sentenced. OAR 291-062-0170 

Abraham alleges he participated in the program for approximately three months before he 

was abruptly removed from the program. (Comp!. at 4.) When he wrote a letter appealing his 

removal from the AIP, he was told that he was ineligible for the program due to an elevated score 

on the STATIC-99 test, an actuarial tool used to assess an inmate's risk for recidivism and future 

criminality. (Abraham Deel. Ex. 2.) When Abraham was sentenced Oregon regulations provided 

that, "[i]nmates who score a six or higher on the Static 99 will not be accepted into an AIP." OAR 

291-062-0140( 4) (2011), invalidated as unconstitutionally vague by Smith v. Dep 't of Corr., 243 Or. 

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App. 45, 51 (2011). 

Abraham exhausted his avenues of administrative appeal and, together with another inmate, 

filed suit in Oregon state court appealing the administrative decision. In that suit, Abraham claimed 

that OAR 291-062-0140( 4) was unconstitutionally vague and resulted from an unlawful delegation 

of rulemaking authority. Smith, 243 Or. App. at 47. The Oregon Court of Appeals agreed "with 

some of petitioners' arguments," and in a May 25, 2011, opinion held the regulation invalid. Id. The 

court found that the agency which adopted OAR 291-062-0140( 4) did not adequately incorporate 

the STATIC-99 test by reference into the regulation. Id. at 50. 

On May 15, 2013, Abraham filed this lawsuit, alleging violations of his Fifth and Fourteenth 

Amendment rights to due process, his Eighth Amendment right to be free from cruel and unusual 

punishment, and a state-law claim for false imprisonment. 

Preliminary Procedural Matter 

Abraham does not plead his claims for relief with particularity, but Abraham filed prose so 

the court must construe his claims liberally. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 

His complaint purports to allege claims only under 42 U.S.C. § 1983, 42 U.S.C. § 12101, and 29 

U.S.C. § 794. However,§ 12101 et seq. is the Americans With Disabilities Act, and§ 794 prohibits 

discrimination in administrating federal grant programs. Abraham has alleged no disability nor has 

he alleged he was under consideration for receipt of a federal grant. The court construes Plaintiffs 

first and third claims for relief as § 1983 claims alleging violations of Abraham's Fifth, Eighth, and 

Fourteenth Amendments. Because Abraham discusses the "elements of the common law tort of 

False Imprisonment" in his second claim for relief and alleges supplemental jurisdiction under 28 

U.S.C. § 1367, the court construes Abraham's second claim for relief as a state-law claim for false 

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imprisonment instead of a claim under the ADA or for discrimination under federal grant programs. 

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 of law." 

FED.R.Crv .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 

Co1p. 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). 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). 

Discussion 

Defendants argue they are entitled to summary judgment on three grounds. First, they claim 

Abraham's claims are time-barred under the Oregon statute of limitations. Second, they claim that 

all defendants are insulated from liability by the Eleventh Amendment and principles of qualified 

immunity. Third, they contend they are entitled to judgment as a matter oflaw on Abraham's statelaw claim because the Oregon Tort Claims Act does not consent to suit in federal court. 

I. Statute of Limitations 

Defendants argue that Abraham's claims are barred by Oregon's two-year statute of 

limitations for claims alleging civil rights violations and false imprisonment. Because the events 

which gave rise to Abraham's claims occurred six years before he filed this suit, Defendants contend 

Abraham's claims are time-barred and should be dismissed. Abraham contends that the statute of 

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limitations should be legally and equitably tolled during the period of time prior to the Oregon Court 

of Appeals's decision in Smith v. Dep 't of Corr. 

The statute oflimitations in a§ 1983 suit is the same as provided under state law for personinjury torts. Wallace v. Kato, 549 U.S. 384, 387 (2007). In Oregon, tort claims for "false 

imprisonment, or for any injury to the person or rights of another" must be brought within two years 

of when the plaintiffs claims accrue. OR. REV. STAT. § 12.110. In Berry v. Branner, the Oregon 

Supreme Court applied the common law "discovery rule" to a battery claim brought more than two 

years after the battery occurred, and held that a cause of action does not accrue under § 12.110 until 

"the time plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort 

committed upon her person by defendant." 245 Or. 307, 308 (1966). Subsequent decisions have 

extended the "discove1y rule" to the remaining causes of action articulated in § 12.110, including 

those brought under 42 U.S.C. § 1983. Whalen v. Am. Med. Response Nw, Inc., 256 Or. App. 278, 

280-285 (2013), citing T.R. v. Boy Scounts of Am., 344 Or. 282, 288 (2008). 

"[A) § 1983 cause of action for damages attributable to an unconstitutional ... sentence does 

not accrue until the ... sentence has been invalidated." Heckv. Humphrey, 512 U.S. 477, 489-90 

(1994). Abraham does not contend that his sentence, as originally articulated in his sentencing 

documents, was unconstitutional. Instead, his claim rests on the premise that, by denying him access 

to an early release program based on an unconstitutional administrative regulation, the state 

administered his sentence in an unconstitutional manner and denied him a constitutional liberty 

interest under the due process clause of the Fifth and Fourteenth Amendments. 1 Nonetheless, the 

1

There is Supreme Court caselaw which suggests Abraham's claim is not cognizable as a 

§ 1983 claim. See Edwards v. Balisok, 520 U.S. 641 (1997) (holding that a prisoner's§ 1983 

claim, which alleged deprivation of "early release credits" through an unconstitutional process, 

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rules governing accrual of claims relating to an unconstitutional sentence apply similarly. Just as 

a claim challenging the legitimacy of an entire sentence does not accrue until that sentence has been 

invalidated, a claim which alleges an otherwise legitimate sentence has been administered in an 

unlawful manner cannot proceed until a court has found unlawful the administration of that sentence. 

Here, Abraham did not know, nor could he reasonably have known, that he suffered a 

deprivation of his constitutional rights until the Oregon Court of Appeals held OAR 291-062' 

0140(4) unconstitutional. The Oregon Court of Appeals invalidated the regulation on which the 

govermnent based its decision to deny Abraham participation in the AIP, thereby accruing 

Abraham's§ 1983 claim, on May 25, 2011. Smith, 243 Or. App 45, 45 (2011). Because Abraham's 

claim did not accrue until May 25, 2011, the limitations period did not expire until May 25, 2013. 

Thus, when Abraham filed this claim on May 15, 2013, he was not time-barred from doing so. 

Accordingly, Abraham's claim is timely and not barred by the statute of limitations.2 

II. Immunity From § 1983 Suit 

Defendants argue that, even if Abraham's claims are not time-barred, the ODOC is immune 

from suit under the Eleventh Amendment to the U.S. Constitution. The Eleventh Amendment 

provides: 

The Judicial power of the United States shall not be construed to extend to any suit in law 

or equity, commenced or prosecuted against one of the United States by Citizens of another 

State, or by Citizens or Subjects of any Foreign state. 

could be brought in federal court only as a habeas c01pus claim). However, Defendants do not 

raise this argument and the court need not address it, as this case is decided on other grounds. 

2

Because the court concludes Abraham's claim accrued less than two years prior to the 

date he filed this cause of action, the court need not address his equitable tolling and equitable 

estoppel arguments. 

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Although the text of the amendment appears to divest federal courts only of diversity jurisdiction for 

cases brought against a state, the Supreme Court has interpreted the Eleventh Amendment to mean 

that a state, as "a sovereign entity in our federal system ... [is] not amenable to the suit of an 

individual without its consent." Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54 (1996), quoting Hans 

v. La., 134 U.S. 1, 13 ( 1890). Thus, "states may not be sued in federal court unless they consent to 

it in unequivocal terms or unless congress, pursuant to a valid exercise of power, unequivocally 

expresses its intent to abrogate the immunity." Green v. Mansour, 474 U.S. 64, 68 (1985). 

A. ODOC and ODOC employees 

"To temper Congress' acknowledged powers of abrogation with due concern for the Eleventh 

Amendment's role as an essential component of our constitutional structure, we have applied a 

simple but stringent test: 'Congress may abrogate the States' constitutionally secured immunity from 

suit in federal court only by making its intention unmistakably clear in the language of the statute."' 

Seminole Tribe of Fla., 517 U.S. at 56, quoting Dellmuth v. Muth, 491 U.S. 223, 227-228 (1989). 

The Ninth Circuit has repeatedly held that 42 U.S.C. § 1983 does not unequivocally abrogate a 

state's sovereign immunity, and may not be used to recover damages against a state, a state agency, 

or government officers acting within their official capacities. Brown v. Ore. Dep 't of Corr., ---- F. 

3d----,No. 11-35628, 2014WL1687758, at *5 (9th Cir. 2014); Taylorv. List, 880 F.2d 1040, 1045 

(9th Cir. 1989) (Eleventh Amendment immunity applies to state agencies, including the department 

ofcorrections). Flintv. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (Eleventh Amendment bars 

§ 1983 damages claims against state officials in their official capacity because the damages award 

would be satisfied out of the State treasury). 

ODOC and PRCI are state organizations protected from suit under § 1983 by the Eleventh 

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Amendment. Further, the individually named defendants in this case are all employees of the State 

of Oregon and Abraham does not allege that any of these state employees acted in their personal 

capacity. Therefore, all of the defendants named in this case are immune from suit under the 

Eleventh Amendment. 

Abraham argues that he may nonetheless succeed in his case pursuant to Monell v. New York 

City Dep 't of Soc. Serv., 436 U.S. 658 (1978). Monell does not apply here. In Monell, the Court 

held, after extensive analysis of§ 1983's legislative history, that Congress did not intend to insulate 

local governments and municipalities from suit when "the action that is alleged to be 

unconstitutional implements or executes a policy statement, ordinance, regulation, or decision 

officially adopted and promulgated by that body's officers." Id. at 690-90. However, Monell does 

not extend to allow similar suits for damages against states, state agencies, or certain state officers 

and agents. Id. Further, neither party claims the State of Oregon has consented to be sued in this 

case. Because the Eleventh Amendment insulates state officers from § 1983 liability, summary 

judgment should be granted in favor ofODOC, ODOC employees, and PRCI employees with regard 

to the first and third claims of Abraham's Complaint. 

B. Qualified Immunity 

Even ifthe Eleventh Amendment does not insulate the real-person defendants from suit in 

this case, summary judgment is nonetheless appropriate because those defendants possess qualified 

immunity from suit. Government officials performing discretionary governmental functions are 

generally entitled to qualified immunity. Anderson v. Creighton, 483 U.S. 635, 638 (1987). 

Qualified immunity shields these government employees from suit "as long as their actions could 

reasonably have been thought consistent with the rights they are alleged to have violated." Id. The 

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liability of the defendant generally turns on the "'objective legal reasonableness' of the action ... 

assessed in light of the legal rules that were 'clearly established' at the time it was taken." Id. at 639. 

In Saucier v. Katz, 533 U.S. 194 (2009) the United States Supreme Court articulated a two-pronged 

test to determine whether qualified immunity applies. First, the court must determine whether the 

official violated the Plaintiffs constitutional rights. Second, the court must analyze whether the law 

governing that right was clearly established. Id at 201. However, in Pearson v. Callahan, 555 U.S. 

223, 236 (2009), the Supreme Court determined that, although beneficial, the order of the two-step 

Saucier test is not mandatory. 

The court will, as it must during summary judgment, draw all inferences in Abraham's favor. 

Even assuming that Defendants violated Abraham's liberty interest under due process clause the 

Fifth and Fourteenth Amendments for unlawfully depriving him of an opportunity for early release 

from incarceration, Abraham cannot prove that his rights were "clearly established." The relevant 

inquiry in whether a plaintiffs rights were clearly established is "whether it would be clear to a 

reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. 

at 202. Here, it would not have been clear to a "reasonable officer" that denying Abraham access 

to the AIP was a constitutional violation. During Abraham's state-court lawsuit against ODOC, the 

Oregon Court of Appeals invalidated the rule which formed the basis of Defendants' justification 

for denying Abraham's participation in the AIP. However, the court of appeals based its decision 

on the technical ground that the state agency which adopted OAR 291-062-0140(4) failed to 

incorporate the STATIC-99 test into the regulation or attach it as an exhibit. As a result, it was void 

for vagueness. A reasonable officer or agent applying OAR 291-062-0140(4) to AIP eligibility 

decisions would not have reason to know the regulation was invalid due to such a legal technicality. 

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Because a reasonable officer would not have known that denying Abraham participation in the AIP 

constituted unlawful conduct, Abraham's due process right was not "clearly defined."3 As a result, 

the individually named defendants in this action are entitled to qualified immunity from Abraham's 

§ 1983 claims, and the court should dismiss Abraham's first and third claims as against all 

defendants. 

III. Jurisdiction Over Plaintiffs State Law Claims for False Imprisonment 

Remaining after the court dismisses Abraham's first and third claims for relief is Abraham's 

claim for false imprisonment. 28 U.S.C. § 1367 permits federal courts to exercise supplemental 

subject matter jurisdiction over "claims that are so related to claims in the action within such original 

jurisdiction that they form part of the same case or controversy under Article III of the United States 

Constitution." Where the court dismisses all claims over which it has original jurisdiction, it has the 

discretion to "decline to exercise supplemental jurisdiction over" remaining claims before it only 

under the court's supplemental jurisdiction. The court no longer has original jurisdiction over a 

claim which forms the same case or controversy as Abraham's state-law claim and Abraham does 

not persuasively argue that the court should exercise its discretion to hear his claim for false 

imprisonment. Therefore, the court should decline to exercise subject-matter jurisdiction and 

dismiss Abraham's second claim for relief. 

Conclusion 

For the aforementioned reasons, Defendants' Motion for Summary Judgment (Dkt. No. 42) 

should be GRANTED as to Abraham's first and third claims for relief. Further, the court should 

3 Abraham bases his Eighth Amendment claim on the same facts as his Fifth and 

Fourteenth Amendment claims. Thus, the court's analysis is identical for his third claim for 

relief. 

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DISMISS Abraham's second claim for relief for lack of subject-matter jurisdiction. 

Scheduling Order 

The above Findings and Recommendation will be referred to a United States District Judge 

for review. Objections, if any, are due August 27, 2014. Ifno objections are filed, review of the 

Findings and Recommendation will go under advisement on that date. If objections are filed, a 

response to the objections is due fourteen days after the date the objections are filed and the review 

of the Findings and Recommendation will go under advisement on that date. 

j 5-1.!,__ DATED this .f::::::::_ day of August, 2014. 

JOH · 1 . ACOSTA 

United Stat.ts Magistrate Judge 

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