UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

STEVEN PAUL HEITZMAN, 

Plaintiff, 

v. 

COLETTE PETERS, et al., 

Defendants. 

CLARKE, Magistrate Judge. 

1:13-cv-00730-CL 

REPORT AND 

RECOMMENDATION 

Plaintiff, formerly an inmate in the custody of the Oregon 

Department of Corrections, filed an Amended Complaint (#32) 

alleging claims under the Eighth Amendment, the Ninth Amendment, 

the Oregon State Constitution, the Prison Rape Elimination Act 

(PREA), various ODOC polices and ORS.71.2030. Plaintiff alleges 

that his rights were violated when he was allegedly "touched 

inappropriately" by defendant Philip Jackson. Plaintiff alleges 

that he suffered "tremendous mental anguish over this incident" and 

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was fired from his job and transferred to a different institution 

because he filed grievances about defendant Jackson's conduct. 

Complaint (#2) p. 4-5. 

Defendants now move for summary judgment (#42). 

The relevant facts are as follows. On February 22, 2012, 

plaintiff was an inmate in the custody of the Oregon Department of 

Corrections working in the Physical plant at the Warner Creek 

Correctional Facility (WCCF) . Defendant Jackson was employed by the 

ODOC as a Facilities Energy Technician supervising inmate work 

crews. On that date, defendant Jackson went to the Physical Plant 

tool room to get a tool bag. The door to the tool room is a Dutch 

door, and the top was open. Plaintiff was blocking the door by 

leaning over the closed bottom half of the door talking to an 

inmate inside the tool room. Jackson approached plaintiff from 

behind, told plaintiff that plaintiff needed to move, and 

simultaneously tapped or "patted" plaintiff on the right buttocks. 

Plaintiff moved and Jackson entered the room to retrieve the tool 

bag. Plaintiff told Jackson that the contact was "inappropriate." 

Ray Wing, who was employed by ODOC as a Facilities Maintenance 

Specialist was in the tool room when the incident occurred and saw 

Jackson tap plaintiff and heard plaintiff say "Well that was 

inappropriate." Mr. Jackson apologized and said "I didn't look 

where I was tapping." Plaintiff replied "Well maybe you should." 

Declaration of Ray Wing (#45) p. 2 

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Plaintiff later asked whet he should do about what happened. 

Wing advised plaintiff: "If you think it's a problem, you need to 

file a grievance." Plaintiff expressed some concern to Wing that 

there would be repercussions if he filed a grievance, but Wing 

assured plaintiff there would not be any. Wing did not believe 

that Jackson touched plaintiff in a sexual manner. Id. 1 

On February 23, 2012, plaintiff filed a grievance concerning 

the incident with defendant Jackson which was investigated by 

Lieutenant Helling, PREA liason for WCCF. Lt. Helling reported his 

findings to defendant Hammonds. 

Defendant David Hammonds was the acting Physical Plant Manager 

and a member of the Sexual Assault Response Team for WCCF. On 

February 27, 2012, Hammonds was informed of a possible Prison Rape 

Elimination Act (PREA) incident involving plaintiff. Hammonds 

reviewed the incident and concluded that it was a "training issue." 

On February 28, 2012, plaintiff reported to his work assignment 

at the Physical Plant and then requested to go to the medical 

department because he was sick. Plaintiff complained that he could 

not work with defendant Jackson and was released from the Physical 

In plaintiff's Menorandum in Support, plaintiff describes two prior 

incidents where he was made to feel uncomfortable by defendant 

Jackson's contact or verbal comments. Although referred to in 

plaintiff's amended complaint, neither of these alleged incidents 

are alleged as claims and are not relevant to the issues before the 

court. Defendant Jackson states in his declaration: "I do not know 

what [plaintiff] is referring to when he claims there were prior 

incidents." Declaration of Phillip Jackson (#44) p. 3 

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Plant his duties to return to his housing unit. 

Subsequently, Hammonds met with plaintiff. According to 

Hammonds, plaintiff told Hammonds the he (plaintiff) could not work 

around Jackson unless Hammonds could instruct Jackson not to look 

at him (plaintiff) or pat him down. Hammonds explained to 

plaintiff that this was not possible, because each Physical Plant 

staff member is required to supervise, direct work, and search all 

inmates who work in the Physical Plant. Declaration of David 

Hammonds (#48) p. 3. 

Hammonds told plaintiff that if plaintiff did not feel 

comfortable working around Jackson, Hammonds would remove plaintiff 

from his inmate work assignment and notify his counselor. 

Plaintiff was removed from his work assignment at the physical 

Plant. Plaintiff's removal from the Physical Plant inmate work 

assignment did not include any form of "daily fail," sanction or 

disciplinary action. Id. 

Plaintiff disputes Hammonds account of their conversation and 

contends that he told Hammonds that: 

I didn't want to lose my job and there must be some 

solution to this problem. I told David Hammonds that 

there are three guards that perform pat downs at the end 

of the day and I could get into a line that Mr.Jackson 

was not performing pat downs. I told David Hammonds that 

I would not even look at Phillip Jackson. David Hammonds 

has twisted my words to cover up this incident. 

Memorandum in Support (#55) p. 4. 

This slightly different characterization of the conversation 

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between plaintiff and Hammonds does not constitute a disputed issue 

of material fact for purposes of summary judgment because what was 

said is irrelevant to plaintiff's claim that he was "firedn for 

filing a grievances. Amended Complaint (#32) p. 5. Hammonds states 

that the removal of plaintiff from his inmate work assignment "was 

done in effort to not cause plaintiff further discomfort in his 

eyes.n Declaration of David Hammonds (#48) P. 3. 

On February 28, 2012, and again on March 4, 2012, plaintiff 

filed grievances alleging that defendant Hammons improperly 

removed from his work assignment at the Physical Plant. 

On March 14, 2012, plaintiff was transferred from WCCF to the 

Oregon State Correctional Institution. On March 15, 2012, 

plaintiff was transferred to the Columbia Correctional Institution 

where he remained until he was paroled on November 30, 2012. 

Plaintiff was transferred at the request of Behavioral Services 

Staff. 

Defendants contend that they are entitled to summary judgment 

"for three primary reasons.n Memorandum in Support (#43) p. 6. 

(1) plaintiff's claims against Defendants ODOC and Risk 

Management and plaintiff's state law claims are barred by 

the Eleventh Amendment i (2) Plaintiff cannot state a 

claim under the Ninth Amendmenti and (3) PREA does not 

provide a private right of action. 

* * * 

[Defendants further contend] Jackson's conduct was 

isolated, brief, and not severe, and thus failed to meet 

Eighth Amendment standards. And to the extent that the 

court may interpret plaintiff complaint as alleging a 

First Amendment claim against Hammonds, Hammonds removed 

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plaintiff from his inmate work assignment for legitimate, 

non-retaliatory reasons, and neither Hammonds nor nay 

other defendant in this lawsuit was responsible for 

plaintiff's transfer. 

Respondeat superior: Plaintiff apparently seeks to hold defendants 

Peters and Angelozzi liable under a theory of respondeat superior. 

It is well settled that respondeat superior is not a proper 

basis for liability under 42 U.S.C. § 1983. Monell v. Dept. of 

Social Services of City of New York, 436 U.S. 658, 691-694 (1978); 

Rizzo v. Goode, 423 U.S. 362, 375-76 (1976); King v. Atiyeh, 814 

F.2d 565, 568 (9th Cir. 1987). To establish a § 1983 claim against 

an individual defendant, a plaintiff must establish personal 

participation by the defendant in the alleged constitutional 

deprivation. Ashcroft v. Igbab, 129 S.Ct. 1937 (2009). 

A "supervisor is only liable for constitutional violations of 

his subordinates if the supervisor participated in or directed the 

violations, or knew of the violations and failed to act to prevent 

them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), citing 

Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-

81 (9th Cir. 1984). See also, Shaw v. Stroud, 13 F.3d 791, 799 

(4th Cir. 1994) (supervisory liability only when a) actual or 

constructive knowledge of a pervasive and unreasonable risk of 

injury; b) deliberate indifference to or tacit authorization of the 

practice; and c) an affirmative causal link between inaction and 

the injury) . Supervisory officials may also be liable if they 

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11 implement a policy so deficient that the policy 'itself is a 

repudiation of constitutional rights' and is 'the moving force of 

the constitutional violation. 111 Redman v. County of San Diego, 924 

F.2d 1435, 1446 (9th Cir. 1991), cert. denied, 112 S. Ct. 972 

(1992). 

Plaintiff has not alleged any facts that would establish 

defendants Peters or Angelozzi personally participated in the 

alleged conduct he complains of or any facts that would subject 

these defendants to liability. 

Eleventh Amendment: A state or its officials or agencies may not be 

sued by private individuals in federal court unless the state has 

unequivocally consented to that action, or Congress has 

unequivocally expressed its intent under the Fourteenth Amendment 

to waive the immunity of the States. Board of Trustees of 

University of Alabama v. Garrett, 531 U.S. 356 (2001); Seminole 

Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); see also, 

Quern v. Jordan, 440 U.S. 332 (1979); Edleman v. Jordan, 415 U.S. 

651, 673 (1984) i Pennhurst State School and Hospital v. 

Halderman, 465 U.S. 89 (1984). The Eleventh Amendment otherwise 

bars any such action regardless of the nature of the relief sought. 

Cory v. White, 457 U.S. 85 (1982); Brooks v. Sulpher Springs Valley 

Elec. Co-Op, 951 F.2d 1050, 1053 (9th Cir. 1991). Individual 

defendants share in the Eleventh Amendment immunity afforded states 

and state agencies where the individuals are sued in their official 

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capacities because such suits "are, in essence, actions against the 

government entity of which the officer is an agent." Mitchell v Los 

Angeles Community College Dist., 861 F.2d 198, 201-02 (9th Cir. 

1999). Under the "arm of the state" doctrine, a state entity and 

its officers in their official capacities share the state's 

sovereign immunity because "'the state is the real party in 

interest and is entitled to invoke its sovereign immunity from suit 

even though individual officials [or state entities] are nominal 

defendants.'" Durning v. Citibank, N.A., 950 F.2d 1419, 1423 (9th 

Cir. 1991) (quoting Ford Mtor Co. V. Dep't of Treasury, 323 U.S. 

459, 464 (1945)). A suit against a state officer in his official 

capacity is effectively considered a suit against the official's 

office, and therefore, it "is no different than a suit against the 

State itself." Will v. Michigan Dep't of State Police, 419 U.S. 58, 

71 (1989) . 

Thus, plaintiff's claims against the Oregon Department of 

Corrections and the Department of Administrative Services (Risk 

Management) are barred by the Eleventh Amendment. In addition, to 

the extent that plaintiff seeks to hold the individual defendants 

liable in their official capacities, 2 plaintiff's claims are barred 

by the Eleventh Amendment. 

Plaintiff's state law claims under the Oregon Constitution, 

2 Plaintiff does not specify whether he is suing defendants 

in their official or individual capacities. 

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ODOC policies, and ORS 71.2030 are likewise barred by the Eleventh 

Amendment because the individually named defendants must be 

dismissed from plaintiff's state law claimx and the State of Oregon 

substituted in their place. ORS 30.265 (1) (the "sole cause of 

action for any tort of officers, employees or agents of a public 

body acting within the scope of their employment or duties * * * 

shall be an action against the public body only."); Demaray v. 

Dept. of Environmental Quality, 127 Or. App. 494, 502 (1994). Upon 

substitution of the State of Oregon as the sole defendant to the 

state claims, the claims must be dismissed pursuant to the Eleventh 

Amendment . 3 

Ninth Amendment: Plaintiff alleges that defendants violated his 

rights under the "9th Amendment." 

The Ninth Amendment provides: "The enumeration in the 

Constitution, of certain rights, shall not be construed to deny or 

disparage others retained by the people." Thus, the Ninth 

Amendment protects rights not enunciated ln the first eight 

amendments. See, Griswold v. Connecticut, 381 U.S. 479 (1965). 

However, "the Ninth Amendment has never been recognized as 

3

Even if plaintiff's state law claims were not barred by the 

Eleventh Amendment, the Oregon Constitution does not provide for 

a private right of action to sue for money damages. Hunter v. 

City of Eugene, 309 Or. 298, 303-04, 787 P.2d 881 (1990). In 

addition, the ODOC policies cited by plaintiff do not provide him 

with an independent cause of action and "ORS 71.2030 - which 

distinguishes leases from security interests - has no application 

to this case. 

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independently securing any constitutional right, for purposes of 

pursuing a civil rights claim.u Stranberg v. City of Helena,791 

F . 2 d 7 4 4 , 7 4 9- 4 9 ( 9th C i r . 19 8 6) (citing cases) . 

Prison Rape Elimination Act (PREA) : Plaintiff alleges that 

defendants' conduct violated the Prison Rape Elimination Act. 

However, it is well established that there is no private right of 

action under PREA. Pope v. Oregon Department of Corrections, Case 

No. 3:10-cv-00632-KI, 2012 WL 186601, *4 (D. Or. May 22, 2012) 

(citing) Porter v. Jennings, Case No. 1: 10-cv- 01811-AWI -DLB PC, 

2012 WL 1434986, *1 (E.D. Cal. Apr. 25, 2012) (citing numerous 

cases) . 

Retaliation: Plaintiff's allegation that he was fired from his job 

and transferred to another institution because he filed grievances 

about defendant Jackson's conduct could be construed as a First 

Amendment retaliation claim. 

A properly pleaded complaint which alleges retaliation for the 

exercise of a constitutional right states a cause of action under 

42 U.S.C. § 1983. Mt. Healthy City Bd. Of Ed. V. Doyle, 429 U.S. 

274 (1977) i McDonald v. Hall, 610 F.2d 16 (l 8 t. Cir. 1979) i Bruise 

v. Hudkins, 584 F.2d 223 (7~ Cir. 1978). The claim must include 

an allegation that the plaintiff engaged in conduct that is 

constitutionally protected and that the conduct was a substantial 

or motivating factor for the defendant's action. Mt. Healy, id., at 

p. 287. 

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"A prisoner suing state prison officials under section 1983 

for retaliation must allege that he was retaliated against for 

exercising his constitutional rights and that the retaliatory 

action does not advance legitimate penological goals, such as 

preserving institutional order and discipline." Barnett v. 

Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994); Rizzo v. Dawson, 788 

F.2d 527, 531 (gth Cir. 1985) The plaintiff bears the burden of 

pleading and proving the absence of legitimate correctional goals 

for the conduct about which he complains. Pratt v. Rowland, 65 

F.3d 802, 806 (9~ Cir. 1995). Courts should "afford appropriate 

deference and flexibility to prison officials in the evaluation of 

proffered penological reasons for conduct alleged to be 

retaliatory. Id., at 807 (quoting Sandin v. Conner, 515 U.S. 472, 

482 (1995)) . 

The nature of a retaliation claim requires that it be 

"regarded with skepticism, lest federal courts embroil themselves 

in every disciplinary act that occurs in state penal institutions." 

Adams v. Rice, 40 F.3d 72, 74 (4~ Cir. 1994). 

The record is clear that plaintiff was removed from his inmate 

work assignment because he told defendant Hammonds that he could 

not work around Jackson unless Hammonds could instruct Jackson not 

to look at plaintiff or pat him down. Defendant Hammonds could not 

accommodate plaintiff's "stipulations" in this regard due to 

legitimate institution security, order and discipline requirements. 

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Plaintiff has not met his burden of pleading and proving the 

absence of a legitimate penological reason for his removal from his 

inmate work assignment at the Physical Plant. Pratt v. Rowland, 

supra. 

None of the defendants named in this action were responsible 

for plaintiff's transfer to OSCI. Plaintiff was transferred at the 

request of Behavioral Health Services (BHS) staff and not because 

he filed grievances. Hammonds Declaration (#46) p. 5, and 

Attachment 5. 

Eighth Amendment: Plaintiff alleges in his amended complaint that 

he was "touched inappropriately" by defendant Jackson. Amended 

Complaint (#32) p. 4. In a grievance filed February 23, 2012, 

plaintiff stated that Jackson "patted me on the butt," and that 

plaintiff believed it was "sexual touching." Hammond Declaration 

(#46) Attachment 2. 

The circumstances giving rise to plaintiff's claim are 

described above. The record reflects that the brief contact was 

incidental to asking plaintiff to move. Although plaintiff alleges 

that Ryan Wing told plaintiff he saw the "inappropriate touching" 

and believed it "was in a sexual manner," Amended Complaint (#32) 

p. 4, Mr. Wing's Declaration states that he did not tell plaintiff 

that he witnesses Jackson touch plaintiff in a sexual manner 

"because I did not. "What I told Inmate Heitzman was that if he 

believed there was a problem, then he needed to file a grievance." 

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Declaration of Ray Wing (#45) p.2. 

The Eighth Amendment does not apply to every deprivation or 

even every unnecessary deprivation, suffered by a prisoner, but 

only that narrow class of deprivation "serious injury inflicted by 

prison officials acting with a culpable state of mind." Hudson v. 

McMillian, 503 U.S. 1 (1992). 

There is a de minimis level of imposition with which the 

Constitution is not concerned. Ingraham v. Wright, 430 U.S. 651, 

674 (1977) Extreme deprivations are required to make out a 

conditions of confinement claim. Only those deprivations denying 

the 'minimal civilized measure of life's necessities' are 

sufficiently grave to form the basis of an Eighth Amendment 

violation. Hudson v. McMillian, 503 U.S.1 (1992) quoting Rhodes v. 

Chapman, 452 U.S. 337 (1981) and Wilson v. Seiter, 501 U.S. 194 

(1991). 

It is unfortunate that plaintiff felt that defendant Jackson's 

pat was "sexual" and was made to feel uncomfortable by Jackson's 

actions. However, plaintiff's sensitivity to being touched does 

not render an innocuous contact sexual. Plaintiff has not 

alleged facts that would establish a risk of "serious harm" to his 

health or safety or any facts that to rise to the level of an 

Eighth Amendment violation. Clemets v. Gomez, 298 F.3d 898 (9th Cir. 

2002). 

Courts have found that "isolated episodes of harassment atid 

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touching" do not meet the objective requirement of an Eighth 

Amendment violation. See, Smith v.Los Angeles County, Case No. CV07-7028-VAP, 2010 WL 2569232, *5 (C.D. Cal Apr. 22, 2010); adopted 

by 2010 WL 2572570 (C.D. Cal. 2010); aff'd, 452 Fed. Appx. 768 (9th 

Cir. 2011). 

In Watison v. Carter, the Ninth Circuit affirmed the dismissal 

of an inmate's Eighth Amendment sexual harassment claim against a 

correctional officer who allegedly entered plaintiff's cell while 

plaintiff was on the toilet, rubbed his thigh against plaintiff's 

thigh and "began smiling in a sexual contact (sic) , " then left 

plaintiff's cell laughing. 

2012). The Ninth Circuit 

6 6 8 F . 3 . rd 11 0 8 , 1112 - 14 . ( 9th C i r . 

rules that "[t]he 'humiliation' 

{plaintiff] suffered from the incident does not rise to the 

level of severe psychological pain required to state an Eighth 

Amendment claim." Id. at 1113. Moreover, the Ninth Circuit found 

that the officer's alleged wrongdoing was not objectively harmful 

enough to establish a constitutional violation. Id. at 1114. 

In Berryhill v. Schriro, 137 F.3d 1073 (9 8 th Cir. 1998), 

(discussed with approval by the Ninth Circuit in Watison) the 

plaintiff alleged that prison maintenance employees "embarass[ed] 

him" in violation of the eighth Amendment when one of them "grabbed 

him by the shoulders while [another] grabbed his buttocks with one 

hand briefly" and a third "grabbed Berryhill's buttocks for a 

moment." Id. 1074-75. 

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The Eight Circuit found no Eighth Amendment violation because 

"there is no evidence that Berryhill suffered anything more than a 

brief unwanted touch on his buttocks" and "[i]t would be a 

distortion *** to characterize the conduct in this case as sexual 

assault." Id. at 1076. Berryhill's "humiliation" did not 

constitute "objectively serious injury (either physical or 

psychological)." Id. 

As the Ninth Circuit noted, Berryhill is "consistent with 

Supreme Court precedent on sexual harassment. The Supreme Court 

has held that simple teasing, offhand comments, and isolated 

incidents (unless extremely serious) will not amount to a 

discriminatory [hostile environment]. Watison, supra 668 F.3d at 

1113, n. 1. 

The circumstances of the present case are far less egregious 

than the facts of Watison and Berryhill. Here plaintiff was 

subjected to a brief, over-the clothes contact on his buttocks, 

incidental to a request that plaintiff "move, (followed by an 

apology) I find that these facts fail constitute a "serious 

injury" (physical or psychological) or rise to the level of a 

constitutional violation. 

In addition, plaintiff has failed to allege facts showing that 

defendant Jackson had a state of mind functionally equivalent to 

"criminal recklessness," and has therefore failed to establish that 

defendant Jackson had a sufficiently "culpable state of mind" to 

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support an Eighth Amendment violation. see Farmer v. Brennan, 511 

u.s. 825, 847 (1994). 

Qualified Immunity: Qualified Immunity: The United States Supreme 

Court has held: 

"An official is entitled to summary judgment on the 

ground of qualified immunity where his or her conduct 

'does not violate clearly established statutory or 

constitutional rights of which a reasonable person would 

have known.' Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982) . Until recently courts considering an official 

claim of qualified immunity followed the two-step 

protocol established in Saucier v. Katz, 533 U.S. 194 

(2001) , which required us first to determine whether the 

defendant violated a constitutional right and then to 

determine whether that right was clearly established. 

See, Pearson v. Callahan, 555 U.S. __ , 129 S.Ct. 808, 818 

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

Callahan, the Supreme Court reversed this earlier rule 

and gave courts discretion to grant qualified immunity on 

the basis of the "clearly established" prong alone, 

without deciding in the first instance whether any right 

had been violated. Id. Thus, we may grant qualified 

immunity if 'the facts that a plaintiff has alleged or 

shown [do not] make out a violation of a constitutional 

right' or if 'the right at issue was [not] clearly 

established at the time of the defendant's alleged 

conduct.' Id. At 816, 818 (internal citations omitted)." 

James v. Rowlands, 606 F.3d 646 (9th Cir. 2010). 

As discussed above, defendants did not violate plaintiff's 

constitutional rights by patting him on the backside or by failing 

to respond appropriately to plaintiff's grievance about the 

incident. 

However, even if plaintiff's allegations could be construed 

as stating a colorable Eighth Amendment claim, I find that it 

would not be clear to a reasonable correctional officer that 

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patting an inmate under the circumstances described in plaintiff's 

complaint and defendants' declarations would constitute cruel and 

unusual punishment under the Eighth Amendment or otherwise violate 

plaintiff's rights. See, Saucier v. Katz, 533 U.S. 194, 202 (2001) 

("The relevant, dispositive inquiry in determining whether a right 

is clearly established is whether it would be clear to to a 

reasonable officer that his conduct was unlawful in the situation 

he confronted.") Therefore any such right was not "clearly 

established" and defendants are entitled to qualified immunity. 

Defendants' Motion for Summary Judgment ( #42) should be 

allowed. The Clerk of Court should be directed to enter a judgment 

dismissing this action. Plaintiff's Motion to Vacate Summary 

Judgment (#53) and Motion to Vacate Stay (#57) should be denied as 

moot. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice of 

appeal pursuant to Rule 4 (a) ( 1) , Federal Rules of Appellate 

Procedure, should not be filed until entry of the district court's 

judgment or appealable order. 

(14) days from the date of 

The parties shall have fourteen 

service of a copy of this 

recommendation within which to file specific written objections 

with the court. Thereafter, the parties have fourteen (14) days 

within which to file a response to the objections. Failure to 

timely file objections to any factual determination of the 

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Magistrate Judge will be considered a waiver of a party's right to 

de novo consideration of the factual issues and will constitute a 

waiver of a party's right to appellate review of the findings of 

fact in an order or judgment entered pursuant to the Magistrate 

Judge's recommendation. 

Any appeal from an order adopting this Report and 

Recommendation or judgment dismissing this case would be frivolous 

and not taken in good faith. 

DATED this day of AprT 

~M~rk D. Clarke 

~United States Magistrate Judge 

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