1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRAD RICHARD BALLANTYNE; JANE

DOE, guardian ad litem for A.B., I.B., and

M.B., minor children,

Plaintiffs, Case No. 6:15-cv-00793-MC

v. OPINION AND ORDER

JERI TAYLOR; CORRECTIONAL 

OFFICER MAYNARD, CORPORAL

PANTHER; JEREMY NOFZIGER; and

JOHN DOES 1-50,

Defendants.

_____________________________

MCSHANE, Judge:

Plaintiffs Brad Ballantyne and his three minor children bring this 42 U.S.C. § 1983 action 

against various officers of the Oregon Department of Corrections. Plaintiffs allege defendants 

violated their rights of freedom of association and right to maintain familial relationships under 

the First and Fourteenth Amendments. Because each individually named defendant is entitled to 

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2 – OPINION AND ORDER

qualified immunity, defendants’ motion for summary judgment, ECF No. 8, is GRANTED. 

Plaintiffs’ motion to continue summary judgment and allow for discovery, ECF No. 19, is 

DENIED.

BACKGROUND

Plaintiff Brad Ballantyne is an inmate within the Oregon Department of Corrections. 

Ballantyne was allowed contact visits with his three children, ranging in age from four to seven. 

On May 17, 2013, defendant Gail Maynard, a Correctional Officer, observed Ballantyne playing 

with his children. Concerned that Ballantyne was inappropriately touching, fondling, and kissing 

his daughters, Maynard asked Defendant Stephen Panther, a Corporal, to pull video of the 

playroom. Maynard and Panther proceeded to watch video of several different days of visits 

between Ballantyne and his daughters. Maynard then prepared and submitted a misconduct 

report to her supervisors. In addition to helping Maynard prepare the misconduct report, Panther

prepared an interoffice memo. Neither Maynard nor Panther had any further involvement in the 

matter. 

On May 24, 2013, Ballantyne received notice of a formal hearing regarding charges of 

major rules violations for Sexual Assault and Disobedience of an Order I. Department of 

Corrections Rule of Misconduct 2.20 states, “An inmate commits Sexual Assault if he/she 

engages in non-consensual sexual activity with another person or when force is used or when the 

person is unable to consent because of age or incapacitation.” “Sexual Activity” is defined as, 

“Sexual contact including, but not limited to sexual intercourse, kissing, fondling, and/or 

manipulation of the genitalia, buttocks, and breasts of another person, or of oneself, in a manner 

which produces or is intended to produce sexual stimulation or gratification.” OAR 291-127-

0210(23).

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Department of Corrections Rule of Misconduct 4.01 states, “An inmate commits 

Disobedience of an Order I if he/she overtly refuses to promptly, or in a timely manner, comply

with a valid order, which creates a threat to the safety, security, or orderly operation of the 

facility.” OAR 291-105-0015(4)(a). 

Ballantyne denied committing Sexual Abuse I, but admitted disobeying Maynard’s order 

that he not build a fort in the playroom. The disciplinary hearing began on June 4, 2013, but was 

delayed pending the results of the investigation of the Oregon State Police and to allow 

Ballantyne the opportunity to take a polygraph examination. At the conclusion of its 

investigation, the Oregon State Police determined Ballantyne had committed no crime.

On September 19, 2013, the disciplinary hearing reconvened. Defendant Jeremy Nofziger 

is the Correctional Hearings Officer who presided over the hearing. Nofziger reviewed the tapes 

and reports with Ballantyne. Ballantyne explained that he came from an affectionate family and 

did not believe he did anything inappropriate. Ballantyne also stated he had never been warned 

about any touching before receiving notice of the charge. Ballantyne denied touching his 

children with any sexual intent. Nofziger found Ballantyne violated Rule 2.20 Sexual Assault 

disobedience of an order. Nofziger recommended a sanction of 180 days visitation rights, and 

disciplinary segregation for 120 days. Nofziger’s recommendation was consistent with the 

sanctions available under the Department of Corrections Major Grid Violation and 

Administrative Rules.

After the hearing, Ballantyne was transferred from the Oregon State Penitentiary to the 

Eastern Oregon Correctional Institution (EOCI). Defendant Jeri Taylor is the Superintendent of 

EOCI. Other than being named a party in this action, Taylor has had no contact or 

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communications with Ballantyne. Taylor did not participate in the hearing or have any 

involvement in the decision to terminate Ballantyne’s visitation privileges. 

As noted, Ballantyne brings this action alleging defendants violated his First Amendment 

right of Freedom of Association and his Fourteenth Amendment right to maintain familial 

relationships. While Ballantyne does not bring a procedural due process claim, he essentially 

argues that Nofziger’s findings were arbitrary.

STANDARDS

The court must grant summary judgment if there is no genuine issue of material fact and 

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is 

“genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. 

Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The 

court reviews evidence and draws inferences in the light most favorable to the non-moving party. 

Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. 

Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the nonmoving party must present “specific facts showing that there is a genuine issue for trial.” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting Fed. R. Civ. P. 

56(e)).

DISCUSSION

Ballantyne admits he cannot present an issue of fact at this stage. Ballantyne moves to 

defer summary judgment to allow time to conduct discovery. ECF No. 19. Rule 56(d) states:

If a nonmovant shows by affidavit of declaration that, for specified reasons, it 

cannot present facts essential to justify its opposition, the court may:

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(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

Ballantyne cites Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) in support of 

his request to allow discovery under rule 56(d). Klingele, however, specifically states that the 

burden is on the party moving for additional discovery under rule 56 to show what specific, 

material facts would be discovered with additional discovery. 849 F.2d at 412. The closest 

Ballantyne gets to specifics comes at the end of his briefing, when he states, “At this juncture, it 

becomes even more critical that Plaintiff be allowed to proceed to discovery, and be allowed the 

opportunity to find and join the most proper party whom is enforcing this unconstitutional 

policy. Defendant should not be allowed to play the departmental version of ‘hide the ball,’ and 

avoid discovery of the ultimate policy enforcer.” Resp., 19; ECF No. 16. 

As explained below, however, these defendants are entitled to qualified immunity. The 

Supreme Court has emphasized that questions surrounding qualified immunity shall be 

determined “at the earliest possible stage in litigation.” Dunn v. Castro, 621 F.3d 1196, at 1199 

(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Qualified immunity shields officials not 

only from standing trial, “but also to avoid the burdens of ‘such pretrial matters as discovery.’” 

Id. (quoting Behrens v. Pelletier, 516 U.S. 299, 308 (1996)). In other words, qualified immunity 

is appropriate here, and Ballantyne may not avoid qualified immunity as to these defendants 

simply because he does not yet know who to sue.

“The doctrine of qualified immunity shields government officials performing 

discretionary functions from liability for damages ‘insofar as their conduct does not violate 

clearly established statutory or constitutional rights of which a reasonable person would have 

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known.’” Dunn, 621 F.3d at 1198-99 (9th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 

800, 818 (1982)). Courts shall resolve qualified immunity questions “at the earliest possible 

stage in litigation.” Id. at 1199 (quoting Harlow v. Bryant, 502 U.S. 224, 227 (1991)). In 

determining if an official is entitled to qualified immunity, courts look at two issues: (1) whether 

the plaintiff alleged facts establishing the violation of a constitutional right; and (2) “whether the 

right is clearly established such that a reasonable government official would have known that 

‘his conduct was unlawful in the situation he confronted.’” Id. (quoting Saucier v. Katz, 533 U.S. 

194, 121 (2001)). While the first prong is a factual inquiry, the second prong is a question of law. 

Id.

Ballantyne fails to establish either prong. As noted by defendants:

The U.S. Supreme Court has held that “state officials are not subject to suit under 

section 1983 unless they play an affirmative part in the alleged deprivation of 

constitutional rights.” Rizzo v. Goode, 423 U.S. 362, 377, 46 L. Ed. 2d 561, 96 S. 

Ct. 598 (1976); king v. Atiyeh, 814 F.3d 565, 568 (9th Cir. 1987). Additionally, 

“[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.” 

Barran v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998): Taylor v. List, 880 

F.2d 1040, 1045 (9th Cir. 1989)

Reply, 2.

The allegations regarding these individual defendants are far too attenuated to support an 

action under § 1983. As discussed above, Maynard and Panther simply viewed the tapes and 

wrote a report to their supervisors laying out their concerns. They played no role in the hearing 

or in imposing any discipline against Ballantyne. Taylor has never met Ballantyne. She is named 

in this action solely because she is the Superintendent of EOCI. Like Maynard and Panther, 

Taylor played no part in the hearing and imposed no discipline on Ballantyne. 

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7 – OPINION AND ORDER

The “personal involvement” question is closer with regard to Nofziger, who presided 

over the disciplinary hearing. Nofziger, however, is clearly entitled to qualified immunity under 

the second prong of that analysis. The second prong of a qualified immunity analysis is “whether 

the right is clearly established such that a reasonable government official would have known that 

‘his conduct was unlawful in the situation he confronted.’” Dunn, 621 F.3d at 1199-1200 

(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). I must determine whether “the preexisting 

law provided the defendants with ‘fair warning’ that their conduct was unlawful. Id. at 1200 

(quoting Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003)). Here, 

the right at issue is an inmate’s right to family visits.

Dunn, a Ninth Circuit case from 2010, squarely addressed this issue. In 2002, California 

prison officials temporarily prohibited Dunn from receiving visits from his minor children after 

Dunn engaged in an explicit telephone conversation with his wife while his child was listening 

in. Like Ballantyne, Dunn brought freedom of association claims under the First and Fourteenth 

Amendments. Reversing the district court, the Ninth Circuit framed the question as whether “a 

reasonable prison official could have believed that terminating Dunn’s right to receive visits 

from his children was lawful, in light of clearly established law and the information he 

possessed. Id. at 1201. 

The court then looked at Supreme Court and Ninth Circuit precedent at the time officials 

denied Dunn visits. Those cases “clearly established that prisoners do not enjoy an absolute right 

to receive visits while incarcerated, even from family members.” Id. The court discussed the 

2003 Supreme Court decision in Overton v. Bazzetta, 539 U.S. 126. In Overton, the Court noted 

that prison required inmates to lose some rights, and that “freedom of association is among the 

rights least compatible with incarceration.” Id. at 131. The Dunn court noted Overton’s

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discussion of the “substantial deference” courts must give prison officials in determining the 

proper administration of prisons. 

In determining the officials were entitled to qualified immunity, the court noted that 

Dunn challenged—as Ballantyne does here—the specific application of those prison regulations 

against him, as opposed to any facial challenge to the regulations. Dunn, 621 F.3d at 1203. The 

court pointed out that Dunn’s defense to the charge—that he did not know his child was on the 

line—was not actually a defense to the charge. There was no dispute that a minor overheard the 

explicit conversation. Dunn argued he did not intend to violate the regulation.

Here, Ballantyne essentially argues he did not touch his children with the intent of 

producing any sexual gratification. But the incidents are caught on tape and there is no dispute 

that Ballantyne did touch and kiss his children, often while rubbing their bottoms. Ballantyne is 

simply arguing he lacked intent. 

Dunn bars Ballantyne’s claims. There, the court explained that qualified immunity “gives 

ample room for mistaken judgments.” Id. at 1204 (quoting Hunter, 502 U.S. at 229). The court 

cited cases discussing that “the purpose” of qualified immunity recognizes that holding officials 

liable for honest mistakes “might unnecessarily paralyze their ability to make difficult decisions 

in challenging situations, thus disrupting the effective performance of their public duties.” Id.

(quoting Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009)). Considering the incidents are all 

on tape, Ballantyne only argues that Nofziger erred in evaluating Ballantyne’s intent. But even 

assuming Nofziger erred in finding Ballantyne intended to produce sexual gratification when 

touching his children, that is a reasonable mistake and one that is protected under qualified 

immunity. Holding Nofziger liable for a mistaken judgment here would paralyze hearings 

officers throughout Oregon. Instead of making the findings and conclusions required for the 

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successful administration of a prison, hearings officers would have the threat of § 1983 liability

hanging over every disciplinary hearing. Courts must give substantial deference to prison 

officials. Here, while the video does not mandate a finding that Ballantyne touched his children 

with the intent of producing sexual gratification, it certainly supports Nofziger’s findings. 

CONCLUSION

Because the individually named defendants are entitled to qualified immunity, 

defendants’ motion for summary judgment, ECF No. 8, is GRANTED. Plaintiffs’ motion to 

allow discovery, ECF No. 19, is DENIED.

IT IS SO ORDERED.

DATED this 29th day of December, 2015.

_______/s/ Michael J. McShane ________

Michael McShane

United States District Judge

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