IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

WILLIAM M. SMITH, 

Plaintiff, 

V. 

DAVE G. POWELL, Individually and in his 

Official Capacity as a Hearings Officer at 

Eastern Oregon Correctional Institution, 

Defendant. 

BECKERMAN, Magistrate Judge. 

2: 14-cv-01725-SB 

FINDINGS AND 

RECOMMENDATION 

William M. Smith, an inmate at Eastern Oregon Correctional Institution ("EOCI"), filed this 

action pro se against Hearings Officer Dave G. Powell ("Officer Powell"), in his individual and 

official capacity, alleging claims under federal law arising from an inmate misconduct report, and 

the subsequent hearing and sanction. Specifically, Smith alleges that Officer Powell, without cause, 

found him in violation of prison rules and imposed 120 days in the Disciplinary Segregation Unit, 

in violation of his First, Eighth, and Fourteenth Amendment rights. Smith also alleges that Officer 

Powell violated his First Amendment right by instructing him not to write letters to members of the 

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public discussing graphic sexual assault. Smith seeks compensatory and punitive damages, as well 

as declaratory and injunctive relief. 

The parties filed cross motions for summary judgment. Smith filed a Motion for Partial 

Summary Judgment seeking an entry of judgment against Officer Powell on Smith's due process and 

free speech claims, alleging that there are no material facts in dispute. Officer Powell filed a Motion 

for Summary Judgment seeking an entry of judgment against all of Smith's claims, on the grounds 

of qualified immunity and no legal entitlement to equitable relief. In addition, Officer Powell asks 

this Court to stay discovery pending the resolution of the cross motions for summary judgment. 

Smith opposes this request and seeks leave of the Court to stay Officer Powell's motion for summary 

judgment, permit discovery to proceed, and provide Smith an opportunity to amend his opposition 

to Officer Powell's summary judgment motion. 

For the reasons set forth below, the district judge should grant Officer Powell's motion for 

summary judgment, and deny Smith's motion for partial summary judgment. In addition, this Court 

denies as moot Officer Powell's request to stay discovery pending resolution of his claim for 

qualified immunity, and denies Smith's motion to defer ruling on Officer Powell's motion for 

summary judgment. 

BACKGROUND 

On May 6, 2014, Smith was placed into the Disciplinary Segregation Unit ("DSU") after 

EOCI corrections officers received a complaint about Smith writing a sexually explicit and 

threatening letter to a woman who had provided Smith religious counseling during the pendency of 

his criminal case. (Am. Compl ~ 5; David G. Powell Dec!.~ 5; Ex. 3 at 4-35, July 16, 2015 .) The 

letter was thirty-two handwritten pages, described in graphic detail Smith's rape of numerous women 

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in the past, and suggested Smith would visit the woman if released from prison. (Powell Decl. Ex. 

3 at 4-35, Ex. 7 at 2.) 

On May 8, 2014, Smith was issued a misconduct report for sending the letter, alleging rule 

violations for prohibited inmate conduct: Compromising an Employee; Disrespect I; Extortion I; and 

Disobedience of an Order I. (Powell Decl. Ex. 3 at 1.) The misconduct report quoted sections of 

Smith's letter that allegedly violated each rule. (Powell Decl. Ex. 3 at 1.) The misconduct report 

focused on the threatening nature ofthe letter, citing the following excerpts from Smith's letter: "We 

can't have you being overly-surprised when you answer the front door to find me standing on your 

porch" and "One day I'm here serving a life sentence and the next day I'm stopping by to pay you 

a visit." (Powell Decl. Ex. 3 at 8.) 

On May 12, 2014, Officer Powell conducted a disciplinary hearing on the misconduct report. 

(Powell Decl. Ex. 7 .) At the hearing, Smith explained to Officer Powell that the recipient of the letter 

was not an Oregon Department of Corrections ("ODOC") employee or volunteer. (Powell Decl. Ex. 

7 at 2 ("[T]he person I wrote this letter to . .. is not an [O]DOC employee or volunteer ... never has 

been."); see also Ex. 7 at 3-6 (Smith details the status of the recipient ofhis letter).) After listening 

to Smith's testimony, Officer Powell postponed the hearing in order to review the letter and consider 

testimony that was presented during the hearing. (Powell Decl. Ex. 7 at 6-8.) 

A second hearing was held on May 22, 2014. At that time, Officer Powell determined that 

the recipient of the letter did fit "under the umbrella of [O]DOC and she is an [O]DOC employee 

and that Smith tried to compromise her." (Powell Decl. Ex. 7 at 1 0.) Officer Powell found that Smith 

was in violation of the rule on Compromising an Employee. (Powell Decl. Ex. 7 at 10; Ex. 8.) 

Officer Powell also found Smith in violation of Disrespect I and Disobedience of an Order I, 

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however, both of those charges were merged into the more serious charge of Compromising an 

Employee. (Powell Dec!.~ 14; Ex. 7 at 10; Ex. 8.) Officer Powell dismissed the Extortion charge 

for insufficient evidence. (Powell Dec!.~ 14; Ex. 7 at 10; Ex. 8.) 

During the May 22, 2014 hearing, Officer Powell noted that Smith's letter caused the 

recipient and her husband to become so upset that they now keep a shotgun near their front door. 

(Powell Dec!. Ex. 7 at 1 0.) Officer Powell instructed Smith, "do not write this kind of content, sexual 

content about raping old women or sex with underage girls or how you do it, to anyone in the public. 

I'm giving that directive right now and if you ever do that again, I'm going to write you up again and 

find you in violation and place you in DSU again." (Powell Dec!. Ex. 7 at 1 0.) Officer Powell 

ordered Smith to stay in DSU for 120 days, pay a $200 fine, and forfeit all privileges for 28 days. 

(Powell Dec. Ex. 7 at 1 0.) 

OAR 291-105-0031 (1) provides that a hearings officer shall prepare a final order within ten 

days of a disciplinary hearing, and Officer Powell acknowledges that he failed to comply with that 

timeline. (Powell Dec!.~ 21 .) Officer Powell explains that between May 22, 2014 and July 2, 2014, 

EOCI experienced many institutional disturbances- including violent fights- that required him to 

conduct an unusually high number of disciplinary hearings. The institution was on "lockdown" status 

many times during that time period. (Powell Dec!.~ 21.) As a result, Officer Powell did not issue 

a final written order until July 2, 2014. (Powell Dec!.~ 8; Ex. 8.) Officer Powell contends, however, 

that Smith was not required to wait for issuance of the final order before seeking review of his 

disciplinary hearing and sanction. (Melissa Nofziger Dec!.~ 3, July 16, 2015; see also OAR 291-

1 05-0085(3) (final order not required before inmate petitions for administrative review).) 

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A final order for a Level 1 rule violation- such as Smith's- is subject to review by the 

Inspector General. See OAR 291-1 05-0085( 1 ). Smith sought administrative review, and on 

September 11 , 2014, the Inspector General vacated Officer Powell's final order for a lack of 

evidence. (Nofziger Decl. Ex. 1.) By that time, Smith had served his 120-day sanction in the DSU. 

Smith's other privileges were restored and the fine he paid was refunded. (Nofziger Decl. Ex. 2.) 

DISCUSSION 

I. Cross Motions for Summary Judgment 

A. Legal Standard 

Summary judgment is appropriate "if the movant shows there is no genuine dispute as to any 

material fact and the movant is entitled to a judgment as a matter oflaw." FED R. CIV. P. 56( a). The 

party seeking summary judgment bears the initial burden of demonstrating that no genuine dispute 

of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All material facts are 

resolved in a light most favorable to the nonmoving party. ld. at 331 . The court must accept all 

evidence and make all inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc ., 

477 U.S. 242,255 (1986). 

B. Analysis 

Section 1983 provides a private right of action for "the deprivation of any rights, privileges, 

or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. To state 

a claim under§ 1983, a plaintiff must allege two essential elements: (1) a federal constitutional or 

statutory right was violated; and (2) the alleged violation was committed by a person acting under 

the color of state law. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Smith alleges that 

Officer Powell found him in violation of prison rules, without cause, and imposed 120 days in the 

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Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 5 of 34
DSU, in violation of his First (right to petition for redress of grievance), Eighth (cruel and unusual 

punishment), and Fourteenth Amendment (due process) rights. Smith also alleges that Officer Powell 

violated his First Amendment (free speech) right by instructing Smith not to write letters discussing 

graphic sexual assault to members of the public. 

In response, Officer Powell argues Smith's federal claims fail as a matter oflaw because no 

clearly established constitutional right is implicated by the allegations that form the basis of Smith's 

§ 1983 claims. Accordingly, Officer Powell contends he is entitled to summary judgment on all of 

Smith's claims for money damages, on the ground of qualified immunity. 1 

1. Qualified Immunity from Monetary Damages 

Qualified immunity shields government officials from liability for civil damages arising from 

conduct that did "not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A plaintiff can overcome qualified immunity by 

establishing that "(1) the official violated a statutory or constitutional right, and (2) the right was 

'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 

2080 (20 11 ). Courts have discretion to "decid[ e] which of the two prongs ... should be addressed 

first in light of the circumstances in the particular case at hand."Pearson, 555 U.S. at 236. In this 

case, the Court ends its inquiry at the first prong, finding no genuine issue of material fact that 

Officer Powell deprived Smith of a constitutional right. 

1 Qualified immunity is a defense available to government officials sued in their individual 

capacity; thus, the immunity is not available to those sued in their official capacity. Community 

House, Inc. v. City of Boise, Idaho , 623 F.3d 945,966 (9th Cir. 2010). 

6- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 6 of 34
(a) Fourteenth Amendment- Substantive Due Process 

Smith alleges that the circumstances of his disciplinary hearing, and the resulting sanction 

(disciplinary segregation), violated his liberty interests. Specifically, Smith charges that Officer 

Powell knowingly and intentionally found Smith in violation of OAR 291-105-15(4)(h) 

(Compromising an Employee), despite no evidence to support Officer Powell's finding. Officer 

Powell sentenced Smith to 120 days in the DSU. (Pl.'s Mem. Partial Summ. J 6.) On review, 

Inspector General Leonard Williamson concluded that Smith did not violate OAR 291-1 05-15( 4)(h). 

By that time, however, Smith had served the entire 120-day sanction due, in part, to Officer Powell 's 

30-day delay in filing his final order, in violation of OAR 291-105-31(1)_2 In addition, the 120-day 

sanction resulted in Smith losing his level three privileged housing and his institutional employment 

during that period. (Am. Compl. ~ 60.) 

In response, Officer Powell argues that Smith did not have a protected liberty interest in 

avoiding a 120-day sanction and, in any event, the Inspector General vacated Officer Powell's final 

order. (De f.'s Mem. S umm. J. 5-6.) Both parties move for summary judgment on Smith's Fourteenth 

Amendment due process claims. 

In his Amended Complaint, Smith alleges: 

Officer Powell's finding of an OAR 291-105-15(4)(h) violation was not 

supported by a preponderance of the evidence, in violation of the Fourteenth 

Amendment (Am. Compl. ~ 59); 

Officer Powell did not allow Smith to call witnesses, submit documents, or 

testify on his own behalf, in violation of the Fourteenth Amendment (Am. 

Compl. ~~ 60, 62); 

2 The disciplinary hearing was held on May 22, 2014, and Officer Powell should have issued 

his final order on or before June 1, 2014, but he issued it on July 2, 2014. The Inspector General 

vacated Officer Powell's order on September 11, 2014. 

7 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 7 of 34
• Officer Powell changed the scope of the charges against Smith without 

providing adequate notice, in violation of the Fourteenth Amendment (Am. 

Compl. ~ 61); and 

• Officer Powell deprived Smith of prompt administrative review by delaying 

the submission of his final order, in violation of the Fourteenth Amendment 

(Am. Compl. ~ 63). 

(Am. Compl. ~~ 59-63.) 

The Due Process Clause of the Fourteenth Amendment protects liberty interests that arise 

either under the clause itself or under state law. Chappell v. Manderville , 706 F.3d 1052, 1062 (9th 

Cir. 2013). Due process claims require a determination of (1) whether a governmental actor 

interfered with a recognized liberty or property interest; and (2) whether the procedures surrounding 

the alleged interference were constitutionally sufficient. Kentucky Dep 't ofCorrections v. Thompson, 

490 U.S. 454,460 (1989). Standing alone, the Due Process Clause does not confer a liberty interest 

in freedom from the conditions or degree of confinement ordinarily contemplated by a prison 

sentence. Sandin v. Conner, 515 U.S. 472,480 (1995). Nevertheless, the Supreme Court recognizes 

that states "may under certain circumstances create liberty interests which are protected by the Due 

Process Clause." !d. at 484. However, a federal due process claim does not arise out of the mere 

violation of state prison regulations. Instead, "the touchstone of the inquiry into the existence of a 

protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the 

language of regulations regarding those conditions but the nature ofthose conditions themselves ' in 

relation to the ordinary incidents of prison life. " ' Wilkinson v. Austin, 545 U.S. 209, 223 (2005) 

(quoting Sandin, 515 U.S. at 484). 

A prisoner's liberty interest is recognized and protected only if prison officials act to affect 

the prisoner's sentence in an unexpected manner (e.g., transferring the prisoner to a mental hospital 

8- FINDINGS AND RECOMMENDATION 

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or administering psychotropic drugs), or impose an atypical and significant hardship on the inmate 

with relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 483-84; see also Ramirez 

v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) ("The Due Process [C]lause provides prisoners two 

separate sources of protection against unconstitutional state disciplinary actions."). Smith argues that 

his 120-day sentence in the DSU posed an atypical and significant hardship. (Am. Compl. ~ 61-63 .) 

In conducting the "atypical and significant hardship" inquiry, courts may consider: " 1) 

whether the challenged condition 'mirrored those conditions imposed upon inmates in administrative 

segregation and protective custody,' and thus comported with the prison's discretionary authority; 

2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state's action 

will invariably affect the duration of the prisoner's sentence." Ramirez, 334 F.3d at 861 (quoting 

Sandin, 515 U.S. at 486-87). If a protected liberty interest is at stake, the court must then determine 

whether the procedures used to deprive the prisoner of that liberty violated due process. See id. at 

860 ("Ifthe hardship is sufficiently significant, then the court must determine whether the procedures 

used to deprive that liberty satisfied Due Process."); Sandin, 515 U.S. at 487 (holding that "neither 

the ... prison regulation in question, nor the Due Process Clause ... afforded [prisoner] a protected 

liberty interest that would entitle him to procedural protections . ... "). 

With regard to the first factor, Smith does not allege that he experienced conditions different 

than other inmates who are housed in segregation. Similarly, with regard to the third factor, Smith 

does not allege that his segregation extended the duration of his sentence. See LaFleuer v. Nooth, 

No. 2: 12-cv-00637-SI, 2014 WL 1236138, at *4 (D. Or. March 25, 2014) (finding no issues of fact 

regarding conditions of segregation or length of sentence). Smith's due process claims are instead 

grounded in the second factor: whether the duration of his stay in the DSU and the degree of restraint 

9 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 9 of 34
imposed caused him a significant and atypical hardship compared to ordinary prison life. (Am. 

Com pl. ~~ 61-63.) 

The Court first considers whether the duration of Smith's confinement, 120 days, was 

sufficiently long to invoke a liberty interest. Judges in this district have found that there is no brightline rule as to the duration of segregation that invokes a liberty interest. LaFleur, 2014 WL 1236138, 

at *4-5 (collecting cases, and noting that placements in segregation from 40 days to 2.5 years have 

been found not to be "significant and atypical"). Subsequent to this Court's decision in LaFleur, the 

Ninth Circuit decided Brown v. ODOC, and held that a 27 -month (81 0 days) indeterminate stay in 

segregation, without any "meaningful review" of the confinement, invokes a liberty interest. 751 

F.3d 983, 988 (9th Cir. 2014) (prisoner was subjected to solitary confinement for over twenty-three 

hours each day with almost no interpersonal contact, and denied most privileges afforded inmates 

in the general population); see also Evans v. Deacon, 3:11-cv-00272-ST, 2015 WL 248412, at *13 

(D. Or. Jan. 20, 20 15) ("Liberally read, Brown may be interpreted to implicate a liberty interest any 

time that an inmate faces 'lengthy confinement without meaningful review' in a housing unit with 

conditions which differ significantly from those imposed in whatever housing unit constitutes the 

' appropriate baseline."' (quoting Brown, 751 F.3d at 988)). 

Smith's stay in the DSU was significantly shorter than the prisoner in Brown (a finite 120-day 

duration compared to an indefinite term that reached 810 days). Indeed, the duration of Smith's 

disciplinary sentence was substantially shorter than any segregation term found by other courts to 

implicate a liberty interest. See, e.g. , Ramirez, 334 F.3d at 861 (remanding for the district court to 

consider whether the plaintiffs two-year placement in disciplinary segregation constituted an 

atypical and significant hardship where the segregated unit was "overcrowded and violent," the 

10 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 10 of 34
isolation "severed" the plaintiffs ties with his family, and the plaintiff was "made a patient of 

psychiatric programs" while segregated);3 Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) 

("There are no precise calipers to measure the severity of [segregated housing unit] hardship, but we 

believe that wherever the durational line is ultimately drawn, 305 days satisfies the standard."); 

Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (eight years with no prospect of release was 

atypical and significant). Importantly, following the Supreme Court's decision in Wilkinson (in 

2005), neither the Supreme Court nor the Ninth Circuit has held that a 120-day duration in 

disciplinary segregation amounts to a significant and atypical hardship. Consistent with controlling 

authority, this Court finds that the duration of Smith's disciplinary segregation did not implicate a 

liberty interest. 

Next, the Court considers the degree of restraint plaintiff experienced in the DSU. See 

Ramirez, 334 F.3d at 861 (finding that the second factor in the atypical and significant hardship 

analysis is "the degree of restraint imposed"). Smith contends that the conditions of his confinement 

were "virtually identical to those described in Wilkinson. " (Pl.'s Reply 11 ; William Smith Fourth 

Aff. ~ 26, July 1, 2015.) Specifically, Smith alleges: 

The loss of freedom and personal lifestyle privileges for me when I was placed in the 

DSU, were akin to the loss of freedom and lifestyle privileges experienced by 

civilians in the community when they are arrested and placed in jail. When I was 

placed in the DSU all of these freedoms and privileges were immediately gone. 

Instead I was locked down in my cell for 23 .5 hours per day, allowed to shower only 

three times per week for 10 minutes in duration, and the only personal property I was 

... allowed to purchase and possess was writing paper and envelopes. After 30 days 

3 On remand, the district court found that there were material facts in dispute regarding 

plaintiffs liberty interest in remaining free from confinement in the segregated housing unit, but 

even assuming plaintiff had such a liberty interest, the undisputed facts established that plaintiff 

received due process for that deprivation. Ramirez v. Galaza, Case No. 1 :99-cv-6282-0WW -DLB-P 

(E.D. Cal. Aug. 9, 2006) (ECF No. 117). 

11 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 11 of 34
I was allowed to also purchase and possess basic hygiene items. I was not allowed 

to possess any other personal property for the entire 120 days I was held in the DSU. 

The only exception to this was that I was allowed to possess a limited amount of 

paper work from my direct appeal which was pending in the state Court of Appeals. 

(Smith Fourth Aff. ~ 26.) 

In Wilkinson, the Supreme Court considered whether prisoners had a liberty interest in 

avoiding an indeterminate assignment to the Ohio State Penitentiary ("OSP"), a Supermax facility. 

The conditions at OSP were described as follows: 

Conditions at OSP are more restrictive than any other form of incarceration in Ohio, 

including conditions on its death row or in its administrative control units. The latter 

are themselves a highly restrictive form of solitary confinement. ... In OSP almost 

every aspect of an inmate's life is controlled and monitored. Inmates must remain in 

their cells, which measure 7 by 14 feet, for 23 hours per day. A light remains on in 

the cell at all times, though it is sometimes dimmed, and an inmate who attempts to 

shield the light to sleep is subject to further discipline. During the one hour per day 

that an inmate may leave his cell, access is limited to one of two indoor recreation 

cells. 

Incarceration at OSP is synonymous with extreme isolation. In contrast to any other 

Ohio prison, including any segregation unit, OSP cells have solid metal doors with 

metal strips along their sides and bottoms which prevent conversation or 

communication with other inmates. All meals are taken alone in the inmate's cell 

instead of in a common eating area. Opportunities for visitation are rare and in all 

events are conducted through glass walls. It is fair to say OSP inmates are deprived 

of almost any environmental or sensory stimuli and of almost all human contact. 

Aside from the severity of the conditions, placement at OSP is for an indefinite 

period of time, limited only by an inmate's sentence. For an inmate serving a life 

sentence, there is no indication how long he may be incarcerated at OSP once 

assigned there . .. . Inmates otherwise eligible for parole lose their eligibility while 

incarcerated at OSP. 

545 U.S. at 214-15 (citations omitted). 

The only similarity between conditions alleged by Smith and those endured by OSP inmates 

in Wilkinson is 23-hour confinement to a cell. Segregation in a DSU cell, standing alone, does not 

satisfy the significant and atypical hardship requirement. See Anderson v. Cnty of Kern, 45 F.3d 

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Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 12 of 34
1310, 1316 (9th Cir. 1995) (finding that "administrative segregation, even in a single cell for twentythree hours a day, is within the terms of confinement ordinarily contemplated by a sentence"), 

opinion amended on denial of reh 'g, 75 F.3d 448 (9th Cir 1995). Indeed, the Supreme Court noted 

in Wilkinson that the conditions in that case "likely would apply to most solitary confinement 

facilities[,]" but that the two additional components present - indefinite placement and 

disqualification from parole consideration- taken together with extreme insolation is what imposed 

an atypical and significant hardship. Wilkinson, 545 U.S. at 224. 

Smith also complains about the loss of personal lifestyle privileges during his DSU sanction, 

but inmates do not have a liberty interest in a particular incentive level. See, e.g., Hernandez v. 

Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) ("[A] prisoner has no constitutional right to a 

particular classification status."); see also Moody v. Daggett, 429 U.S. 78,88 n.9 (1976) (expressly 

rejecting a claim that "prisoner classification and eligibility for rehabilitative programs in the federal 

system" invoked due process protections); accord Callicott v. Snake River Dept. of Corrections 

Admin., No. 3:12-cv-1443-BR, 2014 WL 910735, at *6 (D. Or. March 10, 2014) ("Plaintiff did not 

have a federally protected right to a particular incentive level."). Compare Serrano v. Francis, 345 

F.3d 1071 , 1079-80 (9th Cir. 2003) (holding that inmate's "disability- coupled with administrative 

segregation in an SHU that was not designed for disabled persons- gives rise to a protected liberty 

interest," where inmate was required to crawl to navigate his cell, avoid the shower, and sit idle 

during exercise). 

Consistent with this Court's analysis, other courts in this district have held that conditions 

experienced by inmates in the DSU at Oregon state prisons are not atypical or significant, and that 

therefore a DSU transfer does not implicate a prisoner's liberty interest. See, e.g., Hudson v. 

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Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 13 of 34
Belleque, No. 07-cv-158-HA, 2009 WL 2015396, at *3 (D. Or. July 6, 2009) (holding that while 

placement in DSU may be significant to the prisoner, such a hardship is not atypical); Singh v. 

Czerniak, No. CV 07-1906-PK, 2009 WL 464461, at *5 (D. Or. Feb. 23, 2009) ("[T]he conditions 

of [the plaintiffs] confinement in the [Intensive Management Unit] are similar to conditions in the 

Disciplinary Segregation Unit and the Administrative Segregation Unit. ... Thus, the conditions in 

the IMU are not atypical, and do not implicate due process concerns."). Smith has failed to establish 

that the conditions of confinement he experienced in the DSU were atypical. 

Finally, relying on the Ninth Circuit's decision in Jackson v. Carey, 353 F.3d 750 (9th Cir. 

2003), Smith argues that the fact that his "disciplinary action was successfully appealed on 

administrative review" requires the Court to find a due process violation here. (Pl.'s Reply 11.) In 

Jackson, a California state prisoner claimed that he was unlawfully transferred from administrative 

segregation to disciplinary segregation in the special housing unit, after he successfully appealed a 

disciplinary conviction and was awaiting rehearing of the disciplinary charge. !d. at 752-54. The 

Ninth Circuit held that Jackson "allege[ d) enough to survive dismissal," but observed that the inquiry 

whether Jackson possessed a protected liberty interest in avoiding confinement in the SHU pending 

his rehearing "is better suited to summary judgment." !d. at 757. Significant to this Court's analysis, 

Jackson alleged a liberty interest in being free from disciplinary segregation pending rehearing after 

a successful appeal. In contrast here, Smith did not serve any time in segregation after his 

disciplinary sanction was vacated. 

Even viewing the facts in the light most favorable to Smith, the record does not support a 

conclusion that the duration or degree of Smith's confinement in the DSU invoked a state-created 

liberty interest protected under the Due Process Clause ofthe Fourteenth Amendment. See, e.g., Fort 

14 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 14 of 34
v. Mauney, No. 10-cv-1407-AA, 2011 WL 2009351, at *4 (D. Or. May 23, 2011) ("In this case, the 

180 day sanction did not increase the duration of plaintiffs incarceration or otherwise trigger due 

process guarantees."); Steele v. Czerniak, No. 05-cv-326-AA, 2006 WL 1804564, at *2 (D. Or. June 

27, 2006) ("[B]ecause plaintiffs confinement in disciplinary segregation was consistent with the 

' confinement ordinarily contemplated within the sentence imposed' and did not impose any 'atypical 

and significant hardship ... in relation to the ordinary incidents of prison life,' Sandin, 515 U.S. at 

484, no due process guarantees attach to the imposition of that sanction."); see also Hudson, 2009 

WL 2015396 at *3 (84-day sanction insufficient to trigger due process requirements). 

In the absence of a constitutional violation, Smith is unable to overcome Officer Powell's 

qualified immunity. As such, Officer Powell is immune from suit on Smith's claims seeking 

monetary relief for violations of the Fourteenth Amendment. The district judge should enter 

judgment for Officer Powell on these claims. 

(b) Eighth Amendment- Cruel and Unusual Punishment 

Smith also alleges that his 120-day DSU sanction violated the Eighth Amendment. (Am. 

Compl. ~ 65 .) Specifically, Smith alleges Officer Powell's arbitrary ruling and subsequent sanction 

subjected him to harsh conditions and physical assaults in violation of the Eighth Amendment. (Am. 

Compl. ~ 65). Smith alleges that Officer Powell's actions resulted in the following deprivations: 

serve[ing] 120 days in the DSU, from 05-06-14, through 09-02-14, and causing 

plaintiff to lose his institutional incentive level 3 privileged housing, and causing 

plaintiff to lose his institutional job and 6 months wages, causing plaintiff to forfeit 

watching cable television on plaintiffs personal television, listening to music on 

plaintiffs personal stereo radio and causing plaintiff to be transferred to TRCI' s DSU 

and back to EOCI, resulting in the loss of plaintiffs personal property and causing 

plaintiff to be held incommunicado for approximately 30 days upon arrival at TRCI's 

DSU, causing plaintiff to be placed in a DSU cell where he was repeatedly assaulted 

by his DSU cellmate, and causing plaintiff to be deprived of attending programs, 

religious services, music concerts, legal library, associating with other prisoners, 

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Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 15 of 34
attending outdoor recreation in a congregate setting with the ability to engage in 

sports, jogging, weight-lifting and other congregate recreational activities, attending 

meals with other prisoners and participating in fundraiser events and weekend card 

room activities with other prisoners and depriving plaintiff of3 special holiday BBQ 

meals, a Dominoes [sic] Pizza, an enhanced steak dinner, and the viewing of over 3 0 

new release DVD movies and numerous other earned lifestyle privileges associated 

with plaintiffs incentive level 3 privilege level .... 

(Am. Compl. ~ 65.) 

In response, Officer Powell argues that he was not responsible for the conditions of Smith's 

DSU confinement and, therefore, cannot be liable to Smith for an Eighth Amendment violation. 

(De f.'s Mem. Summ. 1. 11.) In addition, Officer Powell contends Smith has no constitutional right 

to a particular incentive level. Both parties move for summary judgment on Smith's Eighth 

Amendment claim. 

The Eighth Amendment embodies a constitutional limitation on the power of the states to 

punish those convicted of crimes. An irunate alleging Eighth Amendment violations based on prison 

conditions must demonstrate that prison officials were deliberately indifferent to the irunate' s health 

or safety by subjecting him to a substantial risk of serious harm. 4 Farmer v. Brennan, 511 U.S. 825, 

834 (1994); Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). Prison officials display a 

deliberate indifference to an irunate's well-being when they consciously disregard an excessive risk 

ofharm to the irunate's health or safety. Farmer, 511 U.S. at 838-40; Wallis, 70 F.3d at 1077. 

To establish an Eighth Amendment violation under§ 1983, a prisoner must satisfy "both the 

objective and subjective components of a two-part test." Toguchi v. Chung, 391 F.3d 1051 , 1057 (9th 

Cir. 2004) (quotations and citation omitted). First, the deprivation alleged must objectively be 

4 The Eighth Amendment's Cruel and Unusual Punishment Clause applies to the states 

through the Fourteenth Amendment's Due Process Clause. See Graham v. Florida, 560 U.S. 48, 53 

(20 1 0). 

16 -FINDINGS AND RECOMMENDATION 

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sufficiently serious, resulting in a denial of the "minimal civilized measures of life's necessities." 

Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In proving the 

objective component, an inmate must establish that there was both some degree of actual or potential 

injury, and that society considers the acts that plaintiff complains of to be so grave that it violates 

contemporary standards of decency to expose anyone unwillingly to those acts. Helling v. McKiney, 

509 U.S. 25, 36 (1993); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976) (noting that the Eighth 

Amendment "embodies broad and idealistic concepts of dignity, civilized standards, humanity, and 

decency" (quotations and citation omitted)). 

Second, the subjective component requires that the prison official possess a sufficiently 

culpable state of mind; that is, "deliberate indifference to inmate health and safety." Farmer, 511 

U.S. at 834-36. With regard to deliberate indifference, a prison official is not liable "unless the 

official knows of and disregards an excessive risk to inmate health or safety; the official must both 

be aware of facts from which the inference could be drawn that a substantial risk of serious harm 

exists, and he must also draw the inference." Id. at 837. The subjective component requires proof 

that the official: (1) was aware of the facts that would lead a reasonable person to infer the 

substantial risk of serious harm; (2) actually made the inference that the substantial risk of serious 

harm to the plaintiff existed; and (3) knowingly disregarded the risk. I d.; see also Farmer, 511 U.S. 

at 844. 

The only condition of confinement alleged by Smith that might be sufficiently serious to meet 

the first component of the two-part test is the allegation that he was assaulted by his DSU cellmate. 

See, e.g., Rhodes, 452 U.S. at 34 7 ("But conditions that cannot be said to be cruel and unusual under 

contemporary standards are not unconstitutional. To the extent that such conditions are restrictive 

17 -FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 17 of 34
and even harsh, they are part of the penalty that criminal offenders pay for their offenses against 

society."); Hudson v. McMillian, 503 U.S. 1, 9 (1992) ("[B]ecause routine discomfort is part ofthe 

penalty that criminal offenders pay for their offenses against society, only those deprivations denying 

'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an 

Eighth Amendment violation." (citations and internal quotations marks omitted)). However, Smith 

has not alleged, let alone presented evidence, that Officer Powell was aware of a substantial risk of 

serious harm, or that he was deliberately indifferent to a substantial risk of serious harm, in 

connection with the alleged assault. In his Declaration, Officer Powell states: "In my capacity as a 

Hearings Officer, I do not have control over the conditions of the DSU nor do I have control over 

which cell the inmates are assigned." (Powell Decl. ~ 22.) Smith presents no evidence to refute this 

testimony, nor does he allege that Officer Powell knew that Smith would be, or was, assigned to a 

combative cellmate. Smith has not satisfied the second component of the two-part test, and therefore 

has not established an Eighth Amendment violation. 

In the absence of a constitutional violation, Smith is unable to overcome Officer Powell's 

qualified immunity. As such, Officer Powell is immune from suit on Smith's claims seeking 

monetary relief for a violation of the Eighth Amendment. The district judge should enter judgment 

for Officer Powell on this claim. 

(c) First Amendment- Redress of Grievances 

Smith also alleges that Officer Powell deprived him of prompt administrative review in 

violation of the First Amendment by delaying the submission ofhis final order. (Am. Compl. ~ 64.) 

Specifically, Smith alleges Officer Powell "willfully and intentionally delay[ ed] preparation and 

18 -FINDINGS AND RECOMMENDATION 

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submission of the final order for approximately 45 days, thereby ensuring that [Smith] would be 

required to serve most if not all of the 120 days in DSU[.]" (Am. Compl. ~ 64.)5 

Officer Powell argues that Smith does not have a constitutional right to administrative review 

of his sanction within a particular time period.6 Officer Powell moves, but Smith does not move, for 

summary judgment on Smith's First Amendment claim for a violation of his right to redress his 

sanction. (Pl.'s Mot. Partial Surnm. J. 1.) 

Federal law does not require that prison officials process inmate appeals in any specific way, 

and there is no constitutional right to a specific appeals process after an inmate is found guilty in a 

prison disciplinary hearing. See Wolffv. McDonnell, 418 U.S. 539, 556 (1974) ("Prison disciplinary 

proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in 

such proceedings does not apply.") Relevant to the Court's analysis here, prisoners do not have a 

"separate constitutional entitlement to a specific prison grievance procedure." Ramirez, 334 F.3d at 

860 (inmate's claimed loss of a liberty interest in the process of his appeals "lacks the necessary 

constitutional foundation"); accord Mitchell v. Marshall, 564 Fed. Appx. 324 (9th Cir. 2014) ("The 

district court properly dismissed Mitchell's claim regarding his right to appeal his disciplinary 

5 To be clear, Officer Powell should have issued his written order on or before June 1, 2014, 

but he issued it on July 2, 2014, so the relevant analysis is whether this 30-day delay (not the entire 

120-day sanction) violated Smith's First Amendment rights. After July 2, 2014, Smith's appeal was 

pending before the Inspector General, and that delay is not attributable to Officer Powell. 

6 Alternatively, Officer Powell contends that Smith was not required to wait for issuance of 

the final order before seeking review of his disciplinary hearing and sanction. (Nofziger Dec!.~ 3; 

see also OAR 291-1 05-0085(3) (final order not required before inmate petitions for administrative 

review).) In response, Smith points out that one prerequisite to filing for review is the hearing case 

number, which is not provided until issuance of the final order. (Pl.'s Reply 7.) In light of this factual 

dispute, Officer Powell's argument is not dispositive of the issue. 

19- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 19 of 34
finding because Mitchell had no constitutional entitlement to an inmate appeals process."); Opel v. 

DepartmentofCorrections, No. C14-5160 RBL-KLS, 2014 WL 6654583, at *8 (W.D. Wash. Nov. 

24, 20 14) (holding that "there is no constitutional right to an appeal process when an inmate is found 

guilty in a prison disciplinary hearing"); see also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 

1993) (recognizing that "[t]he simple fact that state law prescribes certain procedures does not mean 

that the procedures thereby acquire a federal constitutional dimension") (internal quotations and 

citations omitted). 

OAR 291-105-0031 ( 1) sets forth a procedural requirement that hearings officers issue a final 

order within ten days of the hearing. However, a mere violation of state prison regulations does not 

give rise to a constitutional violation. See, e.g, Sandin, 515 U.S. at 482 (rejecting the notion that a 

violation of state prison regulations provides a basis for a procedural due process claim because it 

"creates disincentives for States to codify prison management procedures"); Olim v. Wakinekona, 

461 U.S. 238,250-51 (1983) (explaining that "[p]rocess is not an end in itself' and holding that a 

State's creation of administrative procedures "does not create an independent substantive right" 

under the Due Process Clause); LaFleur, 2014 WL 1236138, at *4 ("[M]andatory language in a state 

regulatory scheme alone does not create a liberty interest."). Accordingly, the Court finds Officer 

Powell's 30-day delay in issuing his final order did not deprive Smith of a federal constitutional 

right. 

In the absence of a constitutional violation, Smith is unable to overcome Officer Powell 's 

qualified immunity. As such, Officer Powell is immune from suit on Smith's claims seeking 

monetary relief for a violation of the First Amendment claim for a violation of his right to redress 

his 120-day sanction. The district judge should enter judgment for Officer Powell on this claim. 

20- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 20 of 34
(d) First Amendment- Free Speech 

Smith alleges that Officer Powell censored his outgoing mail in violation of the First 

Amendment. (Am. Compl. ~ 67.)7 At Smith's disciplinary hearing, Officer Powell stated: 

I'm going to tell you right now, I'll give you a directive; do not write this kind of 

content, sexual content about raping old women or sex with underage girls or how 

you do it to anybody in the public. I'm giving that directive right now and if you ever 

do that again I'm going to write you up again and find you in violation and place you 

in DSU again. Do you understand me? 

(Powell Decl. Ex. 7 at 1 0.) Smith contends that this directive from Officer Powell violated his right 

to free speech by issuing "a direct order not to write in outgoing letters about plaintiff's past criminal 

behavior or the criminal cognition supporting the behavior, and threatened to further punish plaintiff 

for any such writing . ... " (Am. Compl. ~ 67.) Smith also argues Officer Powell had no authority 

to issue such a directive. (Pl. 's Mem. Partial Summ. J. 13.) 

In response, Officer Powell states that he issued the challenged directive because he believed 

that such limitations are consistent with OAR291-131-0035(1)(a)(A)(iv), which prohibits an inmate 

from sending or receiving: 

Sexually explicit material which by its nature or content poses a threat or is 

detrimental to the security, good order or discipline of the facility, inmate 

rehabilitation, or facilitates criminal activity including, but not limited to, the 

following: ... (iv) Portrayal of actual or simulated acts or threatened acts of force or 

7 In his Motion for Partial Summary Judgment, Smith asserts that he seeks only declaratory 

relief with respect to his claim that Officer Powell violated his First Amendment rights through the 

restrictions on Smith's outgoing mail at the disciplinary hearing. (Pl.'s Mem. Partial Summ. J. 14-

15.) However, in his Amended Complaint, Smith seeks both nominal and punitive damages and does 

not limit his request for damages to specific claims. Accordingly, in an abundance of caution, the 

Court considers whether Officer Powell is entitled to qualified immunity from damages on all claims 

alleged by Smith. In addition, even under a claim for declaratory relief, the Court is required to 

consider whether Smith's First Amendment right to free speech was violated by Officer Powell 's 

statements. 

21 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 21 of 34
violence in a sexual context, including, but not limited to, forcible intercourse (rape) 

or acts of sadomasochism emphasizing the infliction of pain. 

(Powell Decl. ~ 17.) The Court liberally construes the allegations in Smith's Amended Complaint 

and will analyze his First Amendment claim as both a facial and an as-applied challenge to OAR 

291-131-0035. Both parties move for summary judgment on Smith's First Amendment claim 

alleging a violation of his right to free speech. 

The Supreme Court's decision in Procunier v. Martinez is controlling law on claims 

involving outgoing prisoner mail. See Barrett v. Belleque, 544 F .3d 1060, 1062 (9th Cir. 2008) ("The 

standards for evaluation of a First Amendment claim concerning outgoing correspondence sent by 

a prisoner to an external recipient were established by the Supreme Court in Procunier v. Martinez, 

416 U.S. 396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14, 

(1989)); see also Thornburgh, 490 U.S. at 413 ("[T]he logic of our analyses in [Procunier] and 

Turner [v. Safley, 482 U.S. 78 (1987)] requires that [Procunier] be limited to regulations concerning 

outgoing correspondence."). In Procunier, the Supreme Court set limits on the censoring of outgoing 

prisoner mail. A prisoner's outgoing mail may be censored only if "the regulation or practice in 

question[] further[s] an important or substantial government interest unrelated to the suppression 

of expression" and "the limitation of First Amendment freedoms [is] no greater than is necessary or 

essential to the protection of the particular governmental interest involved." 416 U.S. at 413 ( 1974). 

Security, order, and rehabilitation are considered "important or substantial" government interests. 

Jd. Prison officials are afforded "latitude in anticipating the probable consequences of allowing 

certain speech in a prison environment" as it is "essential to proper discharge of an administrator's 

duty." Jd. at414. 

22- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 22 of 34
OAR 291-131-0035 enumerates two categories of "Prohibited Mail" to "be confiscated or 

returned to the sender," including "Sexually Explicit Material" and "Material that Threatens or is 

Detrimental to the Security, Safety, Health, Good Order or Discipline of the Facility." With regard 

to sexually explicit material, OAR 291-131-0035(1 )(a)(A) describes six types of prohibited "Sexual 

Acts or Behaviors." The regulation prohibits mail containing any "[p ]ortrayal of actual or simulated" 

penetration or stimulation, sexual violence, sexual contact between two people, or sexual contact 

between a person and an animal. OAR291-131-0035(1)(a)(A)(i)-(vi). Literary publications may not 

be "excluded solely because of homosexual themes or references," except where they violate the 

rules regarding sexually explicit material. OAR 291-131-0035(1 )(d). In addition,"[ s ]exually explicit 

material may be admitted if it has scholarly value, or general social or literary value." OAR 

291-131-0035(1)(e). 

It is settled law that Oregon prisons may regulate an inmate's receipt and possession of 

sexually explicit materials. Specifically, prison officials may set restrictions on incoming mail 

provided those regulations are reasonably related to the prison's legitimate penological interest in 

prison safety. Thornburgh, 490 U.S. at 413. Numerous courts have upheld such policies for the 

purposes of security, safety, prevention of harm, rehabilitation, and maintaining order. See, e.g , 

Thornburgh, 490 U.S. at 405 (upholding restriction of incoming "sexually explicit material which 

by its nature or content poses a threat to the security, good order, or discipline of the institution, or 

facilitates criminal activity"); Bahrampour v. Lampert, 356 F.3d 969, 973-76 (9th Cir. 2004) 

(upholding restriction on mail depicting actual or simulated sexual acts, intended to prevent or 

reduce harmful inmate behavior such as rape and other forms of sexual predation); Frost v. 

Symington, 197 F.3d 348, 357-58 (9th Cir. 1999) (upholding mail rejection of materials depicting 

23 -FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 23 of 34
penetration, justified as necessary to ensure safety and prevent harassment or abuse of female officers 

or other individuals); Mauro v. Arpaio, 188 F.3d 1054, 1057-63 (9th Cir. 1999) (upholding 

restriction on possession of materials showing "frontal nudity including personal photographs, 

drawings, and magazines and pictorials" where regulation aimed at maintaining jail security, 

rehabilitating inmates, and reducing sexual harassment of female detention officers). 

Nevertheless, a more demanding standard is applied to prison regulations concemmg 

outgoing mail, asking whether a prison's rules further "an important or substantial governmental 

interest unrelated to the suppression of expression [. ]" Procunier, 416 U . S. at 413. A regulation on 

outgoing mail must more closely fit the interest served than a regulation concerning incoming mail, 

but prison officials do not need to show there is no less restrictive mail policy that could serve the 

same penological interests. See Thornburgh, 490 U.S. at 411 -12 (explaining that Procunier should 

not be read as subjecting prison officials to "a strict 'least restrictive means' test[,]" and "required 

no more than that a challenged regulation be 'generally necessary' to a legitimate governmental 

interest"); accord Witherow v. Paff, 52 F.3d 264, 265-66 (9th Cir. 1995) (holding that the state is not 

required to show that its outgoing mail regulation satisfies a "least restrictive means test"). 

The ODOC restricts outgoing written materials when the communication portrays "acts of 

force or violence in a sexual context. ... " OAR 291-131-0035(1)(a)(A)(iv). The purpose of such a 

restriction is to further the interests of security, good order and discipline, inmate rehabilitation, and 

to limit criminal activity. See OAR 291-131-0035(1 )(a). Smith challenges subsection (a)(iv) of this 

regulation, as censoring his ability to write of his "past criminal behavior or the criminal cognition 

supporting the behavior." (Am. Compl. ~ 67.) Smith is correct that the OAR prohibits Smith from 

sending letters to others describing his past criminal behaviors, if those letters include graphic details 

24- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 24 of 34
of violent sexual assault. However, the Court finds that the challenged restriction promotes security 

and inmate rehabilitation, and prevents the facilitation of criminal activity. As such, the challenged 

restriction furthers legitimate penological concerns, unrelated to suppressing expression. See 

Witherow, 52 F.3d at 265-66 (holding that a state prison regulation requiring a cursory visual 

inspection of contents of an outgoing inmate mail envelope, to check for offensive material in 

mailings from inmates to public officials, did not violate prison inmate's First Amendment rights); 

Clarkv. Carter, No. COS-5613 FDB, 2006 WL 3448689, at *1-2 (W.D. Wash. Nov. 27, 2006) (no 

First Amendment violation where prisoner's letter to wife constituted obscene speech, and was 

subject to censorship due to penological interest in furthering prison safety and security).

8 

Next, Smith challenges Officer Powell's application of that policy to his future 

correspondence. Officer Powell simply warned Smith not to violate the regulation, by sending 

another sexually explicit letter. Officer Powell placed Smith on notice that such conduct would 

violate prison regulations, and that he should expect to be sanctioned. (Powell Dec!. ~ 18 ("My 

comments to Smith were made solely to warn him that if he continued to violate the rules, he would 

be subject to additional discipline.") As applied here, ODOC has an important governmental interest 

in preventing inmates from sending unsolicited letters to members of the public recounting the 

inmate's past acts of graphic sexual violence, especially where, as here, the letter could be 

interpreted as threatening future sexual violence. The restriction against sexually violent 

8 In Clark, the court noted that the Washington Department of Corrections implemented a 

policy to reject "sexually explicit" mail, both incoming and outgoing. 2006 WL 3448689, at *2. This 

decision was based upon a study in which expert psychologists "found that there was an increase in 

sexual aggression, threatening the safety and security of the institution, regardless of whether the 

inmate received the materials from mail coming into him or he created the materials and sent them 

out to someone else." !d. 

25 -FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 25 of 34
communications promotes the interests of security, inmate rehabilitation, and prevents the facilitation 

of criminal activity. See OAR 291-131-0035(1 )(a). Those interests are unrelated to the suppression 

of speech. 

The Court finds that OAR 291-131-0035(1)(a)(A)(iv) is a valid restraint on Smith's First 

Amendment rights, both facially and as applied. Accordingly, Officer Powell did not violate Smith's 

First Amendment rights by warning Smith not to violate OAR 291-131-035 in the future. 

In the absence of a constitutional violation, Smith is unable to overcome Officer Powell's 

qualified immunity. As such, Officer Powell is immune from suit on Smith's claims seeking 

monetary relief for a violation of the First Amendment claim alleging a violation of his right to free 

speech. The district judge should enter judgment for Office Powell on this claim. 

(e) First Amendment- Retaliation 

Smith alleges that Officer Powell acted in retaliation for Smith assisting another inmate in 

obtaining a reversal by the Inspector General of a prior ruling by Officer Powell. (Am. Com pl.~ 66.) 

In response, Officer Powell argues that Smith cannot state a First Amendment retaliation claim as 

a matter of law because there is no constitutional right to assist other inmates with grievances. In 

addition, Officer Powell contends that Smith failed to allege any "chilling effect" on that right as a 

result of Officer Powell's conduct. (De f.'s Reply 12.) Officer Powell moves, but Smith does not 

move, for summary judgment on Smith's First Amendment retaliation claim. (Pl.'s Mot. Partial 

Summ. J. 1.) 

In Rhodes v. Robinson, the Ninth Circuit set forth five basic elements necessary to bring a 

"viable claim of First Amendment retaliation" in the prison context: "( 1) [a ]n assertion that a state 

actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, 

26- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 26 of 34
and that such action ( 4) chilled the inmate's exercise of his First Amendment rights, and (5) the 

action did not reasonably advance a legitimate correctional goal." 408 F.3d 559, 567-68 (9th Cir. 

2005) (footnote omitted). 

Court must evaluate retaliation claims brought by prisoners in light of concerns over 

"excessive judicial involvement in day-to-day prison management, which' often squander[ s ]judicial 

resources with little offsetting benefit to anyone."' Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 

1995) (quoting Sandin, 515 U.S. at 482). In particular, courts should "'afford appropriate deference 

and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for 

conduct alleged to be retaliatory." Jd. (quoting Sandin, 515 U.S. at 482). 

In reference to the first element of a retaliation claim, a plaintiff is not required to prove that 

the alleged retaliatory action, in itself, violated a constitutional right. Pratt, 65 F.3d at 806 (to prevail 

on a retaliation claim, plaintiff need not "establish an independent constitutional interest" was 

violated); see also Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) ("[P]risoners may still base 

retaliation claims on harms that would not raise due process concerns."); Rizzo v. Dawson, 778 F.2d 

527, 531 (9th Cir. 1985) (transfer of prisoner to a different prison constituted adverse action for 

purposes of retaliation claim). "The interest cognizable in a retaliation claim is the right to be free 

of conditions that would not have been imposed but for the alleged retaliatory motive." Dicey v. 

Hanks, No. 2:14-cv-2018JAM AC P, 2015 WL 4879627, at 2 (E.D. Cal. Aug. 14, 2015). Here, 

Smith's allegation that Officer Powell found him in violation of Rule 4.15, without sufficient 

evidence, and the imposition of the 120-day sanction, satisfies the first element of a retaliation claim. 

In reference to the second and third elements, retaliatory motive, a plaintiff must show that 

his protected activities were a "substantial" or "motivating" factor behind defendant's conduct. 

27- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 27 of 34
Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). In addition to demonstrating defendant's 

knowledge of plaintiffs protected conduct, circumstantial evidence of motive may include: (1) 

proximity in time between the protected conduct and the alleged retaliation; (2) defendant's 

expressed opposition to the protected conduct; and (3) other evidence showing that defendant's 

reasons for the challenged action were false or pretextual. McCollum v. California Dep 't of 

Corrections, 647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th 

Cir. 2002)). 

Smith believes that Officer Powell retaliated against him because Officer Powell was aware 

of Smith's comments stating that Officer Powell was unable to act as a fair and impartial fact finder. 

(Am. Compl. ~ 66.) Specifically, Smith alleges: 

6. I wrote a letter to my friend ... out in the community. In this letter I told her 

that my only concern about the major misconduct violation I was being accused of, 

was the fact that Dave Powell, the hearings officer who was going to conduct my 

hearing, had a history of, "doing whatever he wanted," in his hearings and that he 

didn't follow his own rules. I explained to my friend that I knew this because I had 

previously helped another inmate with an unfair hearing conducted by Powell, and 

that the inmate's unfair decision had been vacated by the Inspector General because 

of my help. 

7. Immediately prior to my hearing on 05-22-14, with Dave Powell, in case 

number 1405 EOCI 0027 EOCI, where Powell found me arbitrarily guilty of 

violating rule 4.15, and before going on record, Powell told me that he had read my 

letter to [a friend] and that it was clear from what I had written in the letter about him 

that I "obviously" had "no respect for him (Powell) at all. " 

(William M. Smith Seventh Aff. ~~ 6-7, Aug. 21, 2015 .) Officer Powell denies making these 

remarks. (Powell Decl. ~ 19.) 

To survive summary judgment, Smith must provide direct or circumstantial evidence of 

Officer Powell's alleged retaliatory motive. Other than citing his own belief, Smith does not provide 

any facts to support a finding that Officer Powell sanctioned Smith for sending a sexually violent, 

28- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 28 of 34
threatening letter, in retaliation for Smith assisting another inmate with a grievance. Smith's mere 

speculation that Officer Powell acted out of retaliation is not sufficient to survive summary 

judgment. See McCollum, 647 F.3d at 882-83 (holding that assertions made in a complaint or legal 

memoranda are not evidence and do not create issues of fact); accord Wood v. Yordy, 753 F.3d 899, 

905 (9th Cir. 2014) (affirming grant of summary judgment where there was no evidence that 

defendants knew of plaintiffs prior lawsuit or that defendants' disparaging remarks were made in 

reference to prior lawsuit). 

Even assuming the truth of Smith's allegation that Officer Powell read the letter and 

acknowledged he was aware Smith did not respect him, such a statement is not evidence that Officer 

Powell retaliated against Smith for assisting other inmates in seeking administrative review of 

disciplinary proceedings. Instead, such evidence suggests Officer Powell retaliated against Smith, 

if at all, for reasons of personal animus, which does not constitute protected conduct under the First 

Amendment. Further, Smith does not allege temporal proximity between his assistance to the other 

inmate and Officer Powell's actions in this case. Nor does Smith allege that Officer Powell opposed 

Smith's efforts to assist the other inmate. In addition, other than an uncorroborated, self-serving 

statement, Smith does not present evidence that Officer Powell acknowledged or was even aware 

ofSmith's role in those other administrative review proceedings. See Villiarimo v. Aloha Island Air, 

Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (" [T]his court has refused to find a' genuine issue' where 

the only evidence presented is ' uncorroborated and self-serving' testimony.") (citation omitted). 

Finally, Officer Powell's reasons for the sanction- including that Smith's letter had terrified the 

recipient of the letter- were clearly not pretextual. 

29 -FINDINGS AND RECOMMENDATION 

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Smith is unable to create a genuine issue of fact as to the second and third elements of his 

retaliation claim, and therefore he is unable to state a viable claim of First Amendment retaliation. 

See Rhodes, 408 F.3d at 567-68 (setting forth the five elements to state a viable claim). As such, the 

Court need not reach the other elements of his claim. 

In the absence of a constitutional violation, Smith is unable to overcome Officer Powell 's 

qualified immunity. As such, Officer Powell is immune from suit on Smith's claims seeking 

monetary relief for a violation of the First Amendment claim alleging retaliation. The district judge 

should enter judgment for Officer Powell on this claim. 

2. Equitable Relief 

Smith also alleges that Officer Powell violated Smith's constitutional rights, acting in his 

official capacity. Smith seeks three forms of equitable relief against Officer Powell: a declaration 

that Officer Powell violated his constitutional rights, an injunction prohibiting Officer Powell from 

acting as a hearings officer in cases involving Smith, and an injunction preventing Officer Powell 

from committing any further acts of retaliation. (Am. Compl. at 22-23.) 

Eleventh Amendment state sovereign immunity does not bar a plaintiff from suing a state 

officer in his official capacity as a person under Section 1983, because "official-capacity actions for 

prospective relief are not treated as actions against the State." Will v. Michigan Dept. ofState Police, 

491 U.S. 58, 71 n.1 0 (1989) (quotations and citation omitted). A state official cannot claim qualified 

immunity against claims brought against him in his official capacity. See Kentucky v. Graham, 4 73 

U.S. 159, 167 (1985). 

Although Smith is permitted to sue Officer Powell in his official capacity for injunctive and 

declaratory relief, the Court finds that the record does not present a genuine issue of material fact as 

30- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01725-SB Document 68 Filed 01/25/16 Page 30 of 34
to whether Officer Powell violated Smith's constitutional rights, for the reasons discussed above. 

In the absence of a constitutional violation, Smith's claims against Officer Powell in his official 

capacity, as with Smith's claims against Officer Powell in his individual capacity, are without merit. 

Accordingly, the district judge should enter judgment on Smith's claims against Officer Powell in 

his official capacity. 

II. Smith's Motion to Stay Summary Judgment and Proceed with Discovery 

After the deadline for filing his Opposition to Officer Powell's Motion for Summary 

Judgment, Smith filed a "Motion to Stay Summary Judgment Until Completion of Discovery and 

Request for Leave to Amend Plaintiffs Reply to Defendants' MSJ." In that motion, Smith argues 

he is unable to oppose Officer Powell's request for summary judgment on certain claims without 

additional discovery. Specifically, Smith contends Officer Powell has refused to provide discovery 

relating to "Powell's training, inter-departmental communications, previous job performance 

information, etc.," and Smith contends that the requested discovery "will produce a volume of 

evidence showing that ... Powell knowingly violated the law in my hearing and that he is not 

entitled to qualified immunity." (Smith Seventh Aff. ~ 9.) The Court construes Plaintiffs request for 

additional discovery as a motion pursuant to Federal Rule of Civil Procedure 56( d). 

A. LegalStandard 

Federal Rule of Civil Procedure 56( d) provides the applicable legal standard for determining 

whether a court may defer considering a motion for summary judgment where, as here, the 

non-moving party asserts that "it cannot present facts essential to justify its opposition." Under Rule 

56(d), a general assertion that discovery is incomplete does not provide grounds for deferring 

resolution of a motion for summary judgment. Instead, "[t]o obtain relief under Rule 56( d), the 

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plaintiff must show (1) that []he has set forth in affidavit form the specific facts that []he hopes to 

elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are 

'essential' to resist the summary judgment motion." Grant v. Unifund CCR Partners, 842 F. Supp. 

2d 1234, 1242 (C.D. Cal. 2012) (quoting State of Cal. v. Campbell, 138 F.3d 772, 779 (9th Cir. 

1998)). 

B. Analysis 

Smith contends that his discovery requests are calculated to produce evidence to show: 

1) That Powell has an extensive history of refusing to conduct fair hearings, 2) That 

Powell has had numerous previous unfair decisions vacated or modified by the 

ODOC's Inspector General or other ODOC administrator, 3) That Powell has 

received considerable training, instruction and direction from the Inspector General's 

office and or the Attorney General's office, clearly informing him of the rights 

inmates have to fair hearings, and clearly showing that Powell is fully aware of the 

law he is required to follow when conducting inmate disciplinary hearings, and 4) 

That despite numerous previous reprimands and modifications to his decisions, 

defendant Powell has continued to do as he wishes in his hearings without regard for 

the law or the clearly established rights of inmates to receive fair hearings. 

(Pl. 's Reply Mot. Stay Discovery 4.) 

For purposes of Smith's Rule 56( d) request, the Court assumes Smith has set forth specific 

facts he plans to elicit from discovery and that those facts exist. Grant, 842 F. Supp. 2d at 1242. 

Smith is unable, however, to show how these facts would defeat Officer Powell's pending summary 

judgment motion. In reference to Smith's due process claim, the Court found that the duration and 

degree of the conditions of Smith's confinement in the DSU did not invoke a liberty interest 

protected under Due Process Clause of the Fourteenth Amendment. In reference to Smith's First 

Amendment claim, the Court determined there is no constitutional right to a particular review 

process. In reference to Smith's Eighth Amendment claim, it is undisputed that Officer Powell had 

no control over Smith's cell assignments, or the conditions, in the DSU. Finally, in reference to 

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Smith's First Amendment claim, the Court found that even assuming all ofSmith's allegations were 

true, he was unable to state a claim for retaliation. In light of the applicable standards and case law, 

additional discovery would not defeat summary judgment here. Accordingly, a Rule 56(d) 

continuance is not warranted. See Tatum v. City and County of San Francisco, 441 F.3d 1090, 1101 

(9th Cir. 2006) ("Absent a showing by Tatum that additional discovery would have revealed specific 

facts precluding summary judgment, the district court did not abuse its discretion by denying 

Tatum's request for a continuance under Rule 56(f)."); Maljack Productions, Inc. v. GoodTimes 

Home Video Corp., 81 F.3d 881, 887-88 (9th Cir. 1996) (Rule 56(f) motion properly denied where 

nonmoving party "listed a number of facts that, even if established, would not have precluded 

summary judgment"); Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir. 1994) 

(district court did not abuse discretion in denying Rule 56[ d] motion, where "the information sought 

by [the party opposing summary judgment] would not have shed light on any of the issues upon 

which the summary judgment decision was based"). The Court denies Smith's request for a 

continuance. 

III. Officer Powell's Motion to Stay Discovery 

Pursuant to Federal Rule of Civil Procedure 26(b)(l), Officer Powell moves this Court for 

an order staying all discovery based on his assertion of a qualified immunity defense. Based upon 

the foregoing, the Court denies as moot Officer Powell's Motion to Stay Discovery. 

CONCLUSION 

The Court recommends that the district judge DENY Smith's Motion for Partial Summary 

Judgment (ECF No. 42); GRANT Officer Powell's Motion for Summary Judgment (ECF No. 46); 

and DISMISS, with prejudice, Smith's Amended Complaint (ECF No. 32). Additionally, the Court 

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DENIES as moot Officer Powell's Motion to Stay Discovery (ECF No. 44); and DENIES Smith's 

Motion to Stay Summary Judgment Until Completion ofDiscovery and Request for Leave to Amend 

Plaintiffs Reply to Defendants' MSJ (ECF No. 59). 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, are 

due fourteen (14) days from service ofthe Findings and Recommendation. If no objections are filed, 

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

response is due fourteen (14) days after being served with a copy of the objections. When the 

response is due or filed, whichever date is earlier, the Findings and Recommendation will go under 

advisement. 

~ Dated this;t day of January 2016. 

34 - FINDINGS AND RECOMMENDATION 

STACIE . BECKERMAN 

United States Magistrate Judge 

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