1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

DANIEL ZACHARY HARPER, 

Plaintiff, No. 2:15-cv-00102-MO

v. OPINION AND ORDER

C/O HAWKINS #20862, Correctional 

Officer; CASEY CLEAVER, Sergeant;

D. WHITLEY, Lieutenant; MARK NOOTH, 

Superintendent; LEONARD WILLIAMSON, 

Inspector General; and JOHN/JANE DOE, 

Special Investigations Unit, 

Defendants. 

MOSMAN, J., 

Plaintiff and Defendants have made cross-motions for summary judgment. I DENY 

Plaintiff’s Motion for Summary Judgment [15]. I GRANT IN PART and DENY IN PART 

Defendants’ Motion for Summary Judgment [103]. Defendants’ Motion as to claims 1 and 5 is 

GRANTED. Defendants’ Motion as to Superintendent Nooth is GRANTED. Defendants’ 

Motion as to claims 2, 3, and 4 is DENIED. 

Background 

Plaintiff Harper is suing Defendants Hawkins, Cleaver, Whitley and Nooth alleging they 

improperly retaliated against him for use of the prison’s grievance process. Plaintiff alleges 

Defendant Hawkins 1) harassed Plaintiff, verbally and through improper cell inspections, in 

retaliation for Plaintiff requesting grievance forms; 2) told other inmates Plaintiff was a snitch in 

an effort to get the other inmates to attack Plaintiff; 3) issued a false misconduct report to 

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Plaintiff and others for sitting five at a table when only four people were sitting there; 4) tried to 

have Plaintiff’s medical helper removed; and 5) told other correctional officers of confidential 

informants who had indicated Plaintiff was violating prison rules against unlawful organization, 

which resulted in misconduct reports and discipline for Plaintiff. Defendants Cleaver and 

Whitley were the two officers Defendant Hawkins told about the confidential informants. 

Defendant Nooth is the Superintendent of Snake River Correctional Institute (“SRCI”) and is 

being sued under a theory of supervisory liability. 

Legal Standard 

Summary judgment is proper “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). The initial burden for a motion for summary judgment is on the moving party to identify 

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986). Once that burden is satisfied, the burden shifts to the non-moving party to demonstrate, 

through the production of evidence listed in Fed. R. Civ. P. 56(c)(1), that there remains a 

“genuine issue for trial.” Celotex, 477 U.S. at 324. The non-moving party may not rely upon the 

pleading allegations. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) 

(citing FED. R. CIV. P 56(e)). All reasonable doubts and inferences to be drawn from the facts are 

to be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Discussion

Plaintiff concedes in his affidavit he would like to dismiss Defendant Williamson and 

Defendants Doe. I therefore GRANT Defendants’ motion for summary judgment as to these two 

defendants and dismiss them. 

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3 – OPINION AND ORDER 

A. Plaintiff’s Motion for Summary Judgment 

Plaintiff’s motion for summary judgment consists of different quotations from case law 

explaining the elements of retaliation and the standard for summary judgment. While Plaintiff 

may prevail at another stage of the litigation, in reviewing Plaintiff’s motion for summary 

judgment, I am required to take the facts in the light most favorable to Defendants. Defendants 

dispute many of the facts underlying Plaintiff’s claim including 1) whether Defendant Hawkins 

was acting for a retaliatory purpose at any point; 2) whether Defendant Hawkins ever told other 

inmates Plaintiff was informing on them; 3) whether five inmates were sitting at the table on 

June 30, 2014; and 4) whether Defendant Hawkins said he would “get Harper.” There remain 

genuine issues of material fact as to the incidents giving rise to Plaintiff’s claims. I therefore 

DENY Plaintiff’s motion for summary judgment. 

B. Defendants’ Motion for Summary Judgment 

Defendants base their motion for summary judgment on Plaintiff’s failure to exhaust for 

claims 1, 2, and 4 and on the merits for claims 3 and 5. 

a. Claim 1 – Incident on June 24, 2014 

Defendants argue Plaintiff has failed to exhaust his first claim. It is undisputed Plaintiff 

appealed his grievance to the level of a second appeal. On the same day the second appeal was 

accepted, Plaintiff met with the grievance coordinator, Mr. Taylor. Taylor claims Plaintiff 

offered to resolve the dispute if an orderly position was offered to him. Plaintiff claims “I had 

proof that Defendant Hawkins had lied, and Mr. Taylor did not have the power to terminate 

Defendant Hawkins, Mr. Taylor asked me what I wanted. I asked him if he could assign me a 

unit orderly job . . . that grievance had been closed previously.” (Pl. Decl. at 3.) However, the 

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Inmate Communication Form submitted by Mr. Taylor indicates Plaintiff wrote to Mr. Taylor: “I 

received the notice that [the] level 2 appeal was accepted . . . If it is easier, I’ll consider it 

resolved with a unit job.” (James Decl. at 61.) Plaintiff does not dispute he authored and sent the 

Inmate Communication Form. From that form, it is clear Plaintiff engaged in settlement 

negotiations. 

Defendants’ argument is somewhat distanced from a typical exhaustion defense in that it 

relies on the effect of settling a grievance. There is little case law addressing the effect of 

settling grievances with prison officials. What little there is indicates if a prisoner obtains a 

positive outcome, it would be counterintuitive to then require the prisoner to appeal in order to 

fulfill the exhaustion requirement. Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004) (there 

is no mechanism in prison regulations that allows inmates to appeal a favorable decision and so 

claim was exhausted with favorable decision); Kaplan v. N.Y. State Dep’t of Corr. Servs., 2000 

WL 959728, at *3 (S.D.N.Y. July 10, 2000) (holding prisoner who successfully appealed 

grievance had exhausted available administrative remedies even though he did not appeal the 

non-implementation of the solution); McGrath v. Johnson, 67 F. Supp. 2d 499, 510 (E.D. Pa. 

1999) aff’d, 35 F. App’x 357 (3d Cir. 2002) (holding successful resolution of a grievance cannot 

be appealed, so Plaintiff exhausted his administrative remedies). 

However, our case is distinguishable from the cases that have held a prisoner’s positive 

outcome obviates the need for exhaustion. In the cases above, the settlement offer was a 

corrective step by the prison which addressed the underlying violation. In addition, the prisons 

later refused to implement the promises they had given as part of the settlement process. In these 

cases, the prisoners had pursued administrative relief and had, in theory, achieved it. Here, 

Plaintiff abandoned his efforts to obtain administrative relief in exchange for an orderly job. 

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5 – OPINION AND ORDER 

Plaintiff could have pursued administrative relief further and chose not to for reasons 

disconnected from the underlying dispute. In addition, there is no indication that the prison 

rescinded the promised job. As such, typical rules of preclusion apply and bar Plaintiff’s claim. 

Settlements “are intended to preclude any further litigation on the claim presented.” Arizona v. 

California, 530 U.S. 392, 414 (2000). Plaintiff’s language in his communication form is a clear

offer of settlement. Defendants’ actions indicated they understood it as such. There is no 

allegation the prison failed to fulfill its end of the bargain. Therefore, I GRANT the Defendants’ 

motion as to claim 1. 

b. Claim 2 – Incident of June 18, 2014 

Defendants move for summary judgment on the grounds that Plaintiff has failed to 

exhaust the grievance process as to claim 2. Plaintiff claims he grieved the underlying conduct 

and sent follow-up communication forms when the initial grievance was not addressed. He 

testifies to these facts in his declaration and offers another declaration from his medical helper 

that says Plaintiff did in fact file a grievance related to this episode. Defendant claims they did 

not receive any grievance. 

If there are factual disputes as to the grievance process, I am required to deny summary 

judgment and hold an evidentiary hearing. Albino v. Baca, 747 F.3d 1162, 1170. Disputed 

factual questions relevant to exhaustion should be decided by the judge, in the same manner a 

judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue. Id. 

I therefore DENY summary judgment and the case will proceed to an evidentiary hearing on the 

matter of exhaustion. 

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6 – OPINION AND ORDER 

c. Claim 3- Incident of June 30, 2014 

On June 30, 2015, Defendant Hawkins issued a misconduct report to Plaintiff for sitting 

five inmates to a table when only four were allowed. Plaintiff claims there were only four 

inmates at the table and Defendant Hawkins issued the report as a means of retaliation. 

Defendants move for summary judgment on claim 3 claiming Plaintiff cannot succeed in 

showing that Defendant Hawkins’s actions substantively amount to retaliation. Prisoners have a 

First Amendment right to file grievances against prison officials and to be free from retaliation 

for doing so. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). A retaliation claim has five 

elements: 1) protected conduct by the prisoner; 2) adverse action by the official; 3) a causal 

connection between the protected conduct and adverse action; 4) the official’s acts would chill 

the protected conduct of a person of ordinary firmness; and 5) no legitimate penological goal was 

advanced. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). 

Defendants argue Plaintiff can show neither a causal connection between the adverse 

action and the protected conduct nor that Defendant Hawkins’ actions failed to advance a 

legitimate penological goal. Defendants claim the cause of Hawkins’ actions was the actual 

violation of having five prisoners sitting at a table, the occurrence of which is supported by 

statements from Defendant Hawkins and Inmate Glover. However, Inmate Glover wrote 

“Inmate Scibner was at the table next to us . . . turned in his chair to say hello, he was not . . . at 

our table or part of the game.” (First Glover Decl. at 2) The tables were roughly two feet apart, 

making it easy to converse at another table while remaining at your own. Id. Inmate Glover also 

writes that Hawkins approached him later to say he had been “caught up” in his fight with 

Plaintiff when he issued the misconduct report. Taking this evidence in the light most favorable 

to the Plaintiff, Plaintiff has shown enough evidence that retaliation may be the “but for” cause 

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7 – OPINION AND ORDER 

of Defendant Hawkins actions. Lacey v. Maricopa Cty., 693 F.3d 896, 917 (9th Cir. 2012). 

Whether Defendant Hawkins advanced a legitimate penological goal also turns on the resolution 

of the disputed factual issue. Taking the facts in the light most favorable to Plaintiff, Plaintiff 

has produced evidence there were not five people at the table. It cannot be said to support a 

penological goal to issue a false misconduct reports. I therefore DENY Defendants’ motion as to 

claim 3. 

d. Fourth Claim – Incident on July 2, 2014 

Defendants move for summary judgment on the grounds that Plaintiff has failed to 

exhaust the grievance process as to claim 4. Plaintiff improperly used discrimination complaints, 

rather than grievance forms, to submit his complaint. When the complaints were returned to 

Plaintiff because he had not described how the alleged misconduct was a result of discrimination, 

Plaintiff did not resubmit them. 

Plaintiff claims he was forced to use the discrimination forms rather than the grievance 

forms because Defendant Hawkins had deprived him of all grievance forms. Defendants offer 

nothing to rebut this testimony. An inmate is required to exhaust only available remedies. 

Booth, 532 U.S. 731, 736 (2001); Brown v. Valoff, 422 F.3d 926, 936–37 (9th Cir. 2005). To be 

available, a remedy must be available “as a practical matter” and must be “capable of use; at 

hand.” Brown, 422 F.3d at 937 (internal quotations and citations omitted). Because litigants are 

requires to exhaust only “available” remedies and, taking the facts in the light most favorable to 

Plaintiff, there was no available remedy due to the lack of grievance form, Plaintiff did exhaust 

his administrative remedies. I therefore DENY Defendants’ motion for summary judgment. 

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8 – OPINION AND ORDER 

e. Fifth Claim – Incident on July 5, 2014 

On July 5, 2014, Plaintiff approached several inmates and recruited them to become 

involved in a lawsuit against Defendant Hawkins. Defendants Cleaver issued a misconduct 

report and Defendant Whitley signed off on the report against Plaintiff for Unlawful 

Organization transferring Plaintiff to the Disciplinary Segregation Unit. Plaintiff argues filing a 

lawsuit is not a security threat activity and therefore the discipline he received was retaliation. 

Plaintiff also claims Defendants Whitley and Cleaver became aware of his communication with 

other inmates because Defendant Hawkins, citing fictional confidential informants, had told 

them as much. Defendants have moved for summary judgment on the grounds that the actions of 

Defendants Whitley, Cleaver, and Hawkins do not amount to retaliation. 

i. Defendants Cleaver and Whitley 

Plaintiff has offered no evidence to show retaliation was the motivation for Defendants 

Cleaver and Whitley’s actions. Plaintiff’s grievances, to that point, were only against Defendant 

Hawkins. Plaintiff offers nothing to suggest Defendants Cleaver and Whitley were in cahoots 

with Hawkins or acting with knowledge of his alleged retaliatory purpose. The only potential 

evidence Plaintiff offers is that at some earlier point he had reported Defendant Whitley for 

being intoxicated and confrontational at work. Without more, including no reference to the 

temporal proximity between the two events or to Defendant Whitley’s awareness of Plaintiff’s 

complaints, Plaintiff cannot show retaliation was the but-for cause in Defendant Whitley’s

actions. I therefore GRANT Defendants’ Motion for Summary Judgment as to Defendants 

Whitley and Cleaver. 

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9 – OPINION AND ORDER 

ii. Defendant Hawkins 

The only potential adverse action taken by Defendant Hawkins was to pass on 

information about Plaintiff’s organizing activities, something Plaintiff has admitted to doing. 

That action supported a legitimate penological purpose of investigating whether or not Plaintiff 

was engaged in unlawful organizing. Beyond sharing information with his fellow correctional 

workers, there is no action Defendant Hawkins took related to this claim. As Defendant 

Hawkins’ actions supported a legitimate penological purpose, I GRANT Defendant’s motion as 

to Defendant Hawkins. 

f. Supervisory Liability

The only remaining supervisory claim is against Defendant Nooth, the Superintendent of 

SRCI. Plaintiff swears in his affidavit that he made Defendant Nooth aware of the issues 

through inmate communication forms and that when he called the superintendent’s office, one of 

the associates confirmed they were aware of his concerns. 

Defendants argue the superintendent’s inaction after the alleged violation took place 

cannot establish the causation necessary to establish liability under § 1983. This argument 

ignores the standard for causation in a supervisory liability situation. The Ninth Circuit has 

explained “the requisite causal connection can be established . . . by knowingly refusing to 

terminate a series of acts by others, which the supervisor knew or reasonably should have known 

would cause others to inflict a constitutional injury.” Starr v. Baca, 652 F.3d 1202, 1207–08 (9th

Cir. 2011) (quotations and citations omitted). Plaintiff has presented evidence that he 

communicated Defendant Hawkins’s actions to Defendant Nooth. Plaintiff has also presented 

evidence the series of alleged retaliatory acts continued after that communication. In viewing 

the facts in the light most favorable to Plaintiff, Defendant Nooth knowingly refused to terminate 

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10 – OPINION AND ORDER 

a series of acts by Defendant Hawkins which Defendant Nooth should have known would have 

inflicted constitutional injury. If this were my only basis for consideration, I would deny 

Defendants’ motion. However, the issue of exhaustion remains. 

While Defendants do not raise it, the issue of exhaustion is at play in supervisory liability 

claims as well. Supervisory liability claims, like any other claim, must be exhausted. As the 

United States Supreme Court has repeatedly acknowledged, administrative exhaustion is not an 

optional step on the road to litigation; it “is mandatory,” and “unexhausted claims cannot be 

brought in court Carrillo v. Gillespie, No. 2:12-CV-02165-JAD, 2014 WL 1307454, at *5 (D. 

Nev. Mar. 28, 2014) (quoting Jones v. Bock, 549 U.S. 199, 216 (2007). Whether exhaustion is 

obtained by addressing the underlying action, and thus could be satisfied by exhausting claims 

against an underling or obtained by addressing the potential defendant depends on the state’s 

grievance system. In Jones, the Supreme Court found “exhaustion is not per se inadequate 

simply because an individual later sued was not named in the grievances.” Jones, 549 U.S. at 

219. Rather, all that is required by the PLRA is “[c]ompliance with prison grievance 

procedures,” which vary by system. Id. at 218. Oregon’s rules focus on the “matter, action, or 

incident” rather than the person. OAR 291-109-140(d). “Matter, action, or incident[,]” in the 

context of supervisory liability, can be interpreted in one of two ways. Either it refers to the 

underlying incident (i.e. the constitutional violation performed by the underling) or it refers to 

the supervisor’s inaction. I view supervisor inaction as a separate matter, action, or incident, 

requiring a separate grievance. Plaintiff has brought no grievance pertaining to Defendant 

Nooth’s inaction. Therefore, he has not met the exhaustion requirements of the PLRA. The 

claims against Defendant Nooth are DISMISSED. 

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11 – OPINION AND ORDER 

Conclusion 

For the reasons stated above, Plaintiff’s Motion for Summary Judgment is DENIED. 

Defendants’ Motion is GRANTED IN PART and DENIED IN PART. It is GRANTED with 

respect to claims 1 and 5. It is DENIED with respect to claims 2, 3, and 4. All claims against 

Defendants Whitley, Cleaver, Nooth, Williamson and Doe are dismissed. I will proceed to an 

evidentiary hearing on the factual disputes surrounding the exhaustion of claims 2 and 4. 

IT IS SO ORDERED.

DATED this 30th_ day of March, 2016. 

/s/ Michael W. Mosman ____ ______ 

MICHAEL W. MOSMAN

 Chief United States District Court Judge 

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