PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARIO JOHNSON,

Plaintiff,

v.

LINDSAY NOACK, personal and official 

capacities; LYNN HUST, personal and official 

capacities; MATTHEW GUSHARD, personal 

and official capacities; TRACY JOSEPH, 

personal and official capacities,

Defendants.

Case No. 3:16-cv-00443-SB

OPINION AND ORDER

BECKERMAN, U.S. Magistrate Judge.

Mario Johnson (“Plaintiff”), a self-represented litigant, brings this 42 U.S.C. § 1983

action against four Oregon Department of Corrections (“ODOC”) employees—Lindsay Noack 

(“Noack”), Lynn Hust (“Hust”), Matthew Gushard (“Gushard”), and Tracy Joseph (“Joseph”) 

(collectively, “Defendants”). Plaintiff asserts constitutional and state law claims against 

Defendants based on actions they took during the period Plaintiff was incarcerated at ODOC 

institutions. All parties consent to the jurisdiction of a U.S. Magistrate Judge pursuant to FED. R.

CIV. P. 73(b). (ECF No. 44.) Defendants now move for summary judgment on Plaintiff’s claims 
PAGE 2 – OPINION AND ORDER

pursuant to FED. R. CIV. P. 56. (ECF No. 54.) The Court has jurisdiction over this matter 

pursuant to 28 U.S.C. § 1331. For the reasons explained below, the Court grants Defendants’ 

motion for summary judgment.

BACKGROUND1

Plaintiff entered ODOC custody on October 7, 2014, and was initially housed at Coffee 

Creek Correctional Facility (“CCCF”). On October 30, 2014, Plaintiff transferred to the 

Columbia River Correctional Institution (“CRCI”). (See Dorgan Decl. Att. 1 (listing Plaintiff’s 

ODOC housing history).)

Skin Search Incident

On December 5, 2014, Plaintiff went through a medication line in a common area of 

CRCI. (Joseph Decl. ¶ 8.) Joseph, a correctional officer at CRCI, supervised the medication line. 

(Joseph Decl. ¶ 7.) One of her duties was to ensure prisoners take their medication rather than 

hide them to stash or barter. (Id.) During his inspection, Plaintiff kept sticking his tongue out and 

down rather than up as instructed by Joseph. (Joseph Decl. ¶ 8.) He complied after several 

orders. (Id.) After Plaintiff turned around, Joseph saw Plaintiff bring a hand to his mouth and 

then to his pocket. (Id.) She ordered him to take his hands from his pockets and tuck in his shirt 

so his pockets were visible. (Id.) He refused multiple times, even after Joseph said she would 

request a skin search. (Id.) Joseph then contacted intake staff to skin search Plaintiff. (Id.) She 

later submitted a memo to Michael Lange, who was shift lieutenant that day, describing the 

incident. (Joseph Decl. Att. 2.) Plaintiff denies lowering his hands below his chest, reaching into 

his pockets, and refusing to tuck in his shirt. (Johnson Decl. at 6-7.)

 

1 Unless otherwise noted, the following facts are either undisputed or viewed in the light 

most favorable to Plaintiff.
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Thomas Hayes (“Hayes”), a correctional officer at CRCI, heard Joseph’s skin-search 

request on his radio. (Hayes Decl. ¶ 5.) He found Plaintiff “acting very agitated and unsettled” in 

the corridor. (Id.) He directed Plaintiff to the intake area, and eventually placed Plaintiff in the 

center unclothed search booth with the curtain closed. (Hayes Decl. ¶ 6.) Plaintiff was “agitated 

and argumentative” during this process. (Id.) Hayes found one prescription pill in Plaintiff’s 

pants pocket. (Hayes Decl. ¶ 7.) The pill matched those in a blister pack of medication prescribed 

to Plaintiff. (Id.) 

Plaintiff ignored Hayes’ orders to finish getting re-dressed. (Lange Decl. ¶ 5.) Sergeant 

Moore (“Moore”) (first name unknown), the shift sergeant who was in the intake area outside the 

booth, ordered Plaintiff to turn around so he could be restrained. (Lange Decl. ¶ 6.) Plaintiff did 

not comply, so Moore called for first responders. (Lange Decl. ¶¶ 6-7.) Siegel, a female officer 

and designated first responder, reported to the intake area.2(Lange Decl. ¶ 8.) Plaintiff “became 

argumentative and began waving his arms to make his point.” (Id.) Moore, Siegel, and Hayes

entered the search booth and together forcefully restrained Plaintiff, who was later placed in the 

disciplinary segregation unit (“DSU”). (Id.)

The following day, October 6, 2014, Plaintiff received a misconduct report for violating 

two Inmate Rules of Prohibited Behavior: Rules 1.11 (Contraband I) and 4.01 (Disobedience of 

an Order I). (Lange Decl. Att. 2, at 6.) On December 17, 2014, a disciplinary hearing was held 

regarding the skin search incident. (Nofziger Decl. ¶ 6.) Plaintiff acknowledged receiving a copy 

of the misconduct report, notices of the hearing and his rights at the hearing, and the Inmate 

Rules of Prohibited Behavior. (Id.) He also acknowledged understanding the misconduct report 

 

2

Plaintiff claims he was strip-searched “in the presence of several female officers[,]” not 

just Siegel. (Am. Compl. at 10.)
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and his rights at the hearing. (Id.) The hearings officer heard testimony and found Plaintiff guilty 

of violating Rules 4.01 (Disobedience of an Order I) and 1.12 (Contraband II). (Id.) The hearings 

officer did not find evidence sufficient to support a violation of Rule 1.11 (Contraband I), as 

initially charged. (Id.) Plaintiff received a sanction of thirteen days in the DSU and seven days’ 

loss of privileges upon release therefrom. (Id.)

Transfer Incident

On January 7, 2015, Plaintiff was transferred to Multnomah County for court 

proceedings. (Dorgan Decl. ¶ 6.) Upon Plaintiff’s return to CRCI on January 14, 2015, 

Multnomah County transport staff reported twice having to use a Taser on Plaintiff, who 

reportedly was disruptive during the trip. (Dorgan Decl. ¶ 7.) Upon return, Plaintiff was 

administratively segregated in the DSU. (Id.)

On January 15, 2015, a multi-disciplinary team (“MDT”) comprising staff from all 

operational departments at CRCI met to review the status of prisoners assigned to special 

housing units. (Dorgan Decl. ¶ 9.) MDT recommended that Plaintiff remain in the DSU until 

paperwork regarding the January 14, 2015, incident arrived from Multnomah County, and that 

Plaintiff be transferred to another facility. (Dorgan Decl. ¶ 10.) A request that Plaintiff be 

transferred to the Oregon State Penitentiary (“OSP”) was made on January 21, 2015. (Dorgan 

Decl. Att 4.) MDT met again on January 22, 2015, but did not change its recommendation. 

(Dorgan Decl. ¶ 13.) The ODOC Office of Population Management (“OPM”) approved the 

transfer. (Dorgan Decl. ¶ 14.) On January 23, 2015, Plaintiff transferred to OSP, where he 

remained administratively segregated until January 29, 2015. (Dorgan Decl. ¶ 15.)

On February 20, 2015, Plaintiff transferred to the Oregon State Correctional Institution 

(“OSCI”). (Dorgan Decl. Att. 1.)
PAGE 5 – OPINION AND ORDER

Cell Search Incident

On May 15, 2015, Alves (“Alves”) (first name unknown) went to Plaintiff’s cell, which 

he had been instructed to search for unauthorized envelopes. (Gushard Decl. Att. 8.) Plaintiff was 

in his cell, and Alves ordered him to leave. (Id.) Plaintiff was hostile, so Alves ordered Plaintiff 

to go to the officer’s area. (Id.) Plaintiff left and returned a few minutes later, saying he wanted 

to watch the search. (Id.) Alves repeatedly ordered Plaintiff to leave, and Plaintiff repeatedly 

refused, “becoming more aggressive in his refusals.” (Id.) Alves called for staff assistance. (Id.) 

When staff arrived, Alves ordered Plaintiff to submit to restraints. (Id.) Plaintiff “refused and 

postured as if he was going to fight with staff.”3(Id.) Plaintiff submitted to restraints after Alves 

pulled out his pepper spray and threatened to use it. (Id.) Plaintiff was later placed in segregation. 

(Id.)

The next day, May 16, 2015, Plaintiff received a misconduct report for violating two 

Inmate Rules of Prohibited Behavior: Rules 1.11 (Contraband II) and 4.01 (Disobedience of an 

Order I). (Nofziger Decl. Att. 2, at 3.) A disciplinary hearing regarding the cell search incident 

took place on May 20, 2015. (Id. at 1.) Plaintiff acknowledged receiving a copy of the 

misconduct report, notices of the hearing and his rights at the hearing, and the Inmate Rules of 

Prohibited Behavior. (Id.) He also acknowledged understanding the misconduct report and his 

rights at the hearing. (Id.) The hearings officer heard testimony and found that Plaintiff had 

violated Rule 4.01 (Disobedience of an Order), but dismissed the Rule 1.11 violation 

 

3

Plaintiff denies being aggressive toward Alves and staff. (Johnson Decl. at 20 (“I felt 

that I hadn’t done anything wrong but calmly express[ed] that the search was being wrongfully 

conducted.”).)
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(Contraband II).4(Id.) Plaintiff received a sanction of fourteen days in the DSU and fourteen 

days’ loss of privileges upon release therefrom. (Id. at 2.)

Cell Block Incident

On May 27, 2015, Plaintiff transferred back to OSP. (Dorgan Decl. Att. 1.) He spoke to 

Sergeant Hollman (“Hollman”) (first name unknown) on June 5, 2015, about having sleep apnea 

and snoring, which was keeping his cellmate and others awake. (Nofziger Decl. Att. 3, at 3.) 

Hollman gave Plaintiff a couple of suggestions, and Plaintiff said, “I cannot go back to the 

block.”5(Id.) Hollman asked whether Plaintiff was refusing to “cell in.” (Id.) When Plaintiff did 

not immediately respond or move toward his cell block, Hollman placed Plaintiff in wrist 

restraints and escorted him to the DSU. (Id.)

On June 11, 2015, a disciplinary hearing regarding the cell block incident was held. 

(Nofziger Decl. Att. 3, at 1-2.) Plaintiff acknowledged receiving a copy of the misconduct report, 

notices of the hearing and his rights at the hearing, and the Inmate Rules of Prohibited Behavior. 

(Id.) He also acknowledged understanding the misconduct report and his rights at the hearing. 

(Id.) The hearings officer heard testimony and found that Plaintiff had violated Rule 4.01 

(Disobedience of an Order I) and Rule 4.40 (Unauthorized Area I). (Id.) Plaintiff received a 

sanction of seven days in the DSU and seven days’ loss of privileges upon release therefrom. 

(Id.)

 

4 During the hearing, Plaintiff testified that the five unauthorized envelopes found in his 

cell were indigent envelopes he received while housed at Multnomah County Jail. Plaintiff did 

not know they were unauthorized; he had the envelopes at OSP; his envelopes were not taken 

when his property was searched; and the inmate handbook did not state that envelopes must be 

purchased from the prison canteen. (Id.)

5

Plaintiff alleges he refused to return to his cell block because he feared being harmed by 

other prisoners. (Johnson Decl. at 21.)
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On October 15, 2015, Plaintiff was released to post-prison supervision. (Erickson Decl. ¶ 

3.) He filed this action on March 11, 2016. (ECF No. 2.)

ANALYSIS

I. STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and 

the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). On a motion 

for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep’t of 

Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, 

weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of 

fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks 

omitted).

II. DISCUSSION

A. 42 U.S.C. § 1983 Claims

1. Access to Courts

a. Introduction

At the heart of Plaintiff’s amended complaint are his allegations that, in various ways, he 

was denied his right of access to courts, a First Amendment right subsumed under the right to 

petition the government for redress of grievances. Perry v. Barton, No. C 92-2339 BAC, 1994 

WL 374551, at *2 (N.D. Cal. June 29, 1994). The right of access to courts “requires prison 

authorities to assist inmates in the preparation and filing of meaningful legal papers by providing 

prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 
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Bounds v. Smith, 430 U.S. 817, 828 (1977). However, “[b]ecause Bounds did not create an 

abstract, freestanding right to a law library or legal assistance, an inmate cannot establish 

relevant actual injury simply by establishing that his prison’s law library or legal assistance 

program is subpar in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). As 

such, “the inmate therefore must go one step further and demonstrate that the alleged 

shortcomings in the library or legal assistance program hindered his efforts to pursue a legal 

claim.” Id.

b. Plaintiff’s Allegations

Plaintiff bases his access-to-courts claim on several events that allegedly took place at 

CRCI and OSCI.

i. CRCI

First, Plaintiff claims that at CRCI his “saved legal work was partially deleted or in some 

cases entirely deleted from [his] assigned thumb drive that was left in the custody of the library 

clerk, Defendant Ms. Hust.” (Am. Compl. at 9.) He further claims Hust called him to the library 

and asked why he needed certain legal material on his thumb drive and then “proceeded to delete 

the legal information in its entirety.” (Id.) Second, Plaintiff claims he was “denied [his] legal 

reference books[,] legal documents, and communication with [his] family court attorney” during 

his first stay in solitary confinement. (Am. Compl. at 10.) Third, Plaintiff claims his “written 

request[s] for access to the law library were being disregarded.” (Id.) He further claims that, after 

filing a grievance, his access was “eventually reinstated, but the time allowed was discriminately 

limited and [his] activities were highly monitored and censored.” (Id.) Fourth, Plaintiff claims 

that during his second stay in solitary confinement at CRCI he was again denied contact with his 
PAGE 9 – OPINION AND ORDER

family court attorney, who was attempting to contact him regarding “imminent deadlines and 

other pending legal matters[.]” (Am. Compl. at 11.)

ii. OSCI

Fifth, Plaintiff claims that at OSCI he was subjected to a policy that “infringed on 

inmates[’] right to meaningful access to legal material and copy services.” (Am. Compl. at 13.)

The policy, as Plaintiff describes it, requires prisoners to save certain legal information on 

assigned thumb drives, and “then the library clerk would print the information to be given to the 

inmate but not before the information was thoroughly reviewed and censored.”6(Am. Compl. at 

14.) Plaintiff alleges that Gushard “was the law library clerk who reviewed and censored 

inmates[’] legal material.” Plaintiff claims that Gushard refused to “deviate from the rigid, 

unconstitutional policy” by allowing him legal information needed for “imminent filing 

deadlines,” physically assaulted Plaintiff, and then “apologized the next day, stating ‘he 

recognized that denial of the legal material is legally arbitrary but he is only following orders 

from up above.’” (Am. Compl. at 14-15.)

Sixth, Plaintiff claims that he “attempted to circumvent the situation” by conducting his 

legal work from his cell and that, as a result, Gushard sent a correctional officer to his cell to 

seize his legal reference books and legal documents.7(Am. Compl. at 15.) Seventh, Plaintiff 

claims the officer looked through his legal documents and ordered him to leave the cell block. 

 

6

Plaintiff takes issue with the limits on what material may be saved to assigned thumb 

drives because the “legal research database accessible to the inmates is a controlled system and 

there is no reason for D.O.C. staff to believe that inmates could obtain information that would be 

a threat to the security of the prison. The obvious reason for the intrusive policy is to suppress 

the liability exposure of D.O.C.” (Am. Compl. at 14.)

7

In his declaration in support of his amended response, Plaintiff alleges that Gushard 

seized legal reference books from Plaintiff’s cell on multiple occasions. (ECF No. 72-1 at 19.)
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(Id.) Eighth, Plaintiff claims that, after a stay in solitary confinement and a transfer to OSP 

following the cell-search incident, his legal documents were returned but “some of the material 

evidence relating to D.O.C. [was] missing.” (Am. Compl. at 16.)

In his declaration in support of his amended response (ECF No. 72-1), Plaintiff raises 

several additional issues regarding law libraries at ODOC facilities.8 He complains generally that 

he had to use three-inch pencils and carbon paper to transcribe his research materials, and prison 

officials do not provide prisoners enough time in the library for identifying, analyzing, and 

transcribing by hand. (Johnson Decl. at 2.) He also complains that there are too few legal 

assistants, assistants are often too busy to help, and there is a backlog of requests for 

appointments with assistants. Furthermore, legal assistants do not draft complaints and motions 

for prisoners, who must do their own drafting. (Johnson Decl. at 3.) Plaintiff also makes a 

handful of specific complaints: namely, that his legal documentation from CRCI was seized 

when he was transferred, and he had to start over at OSCI (Johnson Decl. at 16); OSCI’s law 

library policy that word processors cannot be used for tort suits, soliciting an attorney, or for § 

1983 suits is unconstitutional (Johnson Decl. at 17); and that Gushard censors legal information 

that could be used against ODOC or other state entities (Johnson Decl. at 18).

c. Analysis

“Where a prisoner asserts a backward-looking denial of access claim—one, as here, 

seeking a remedy for a lost opportunity to present a legal claim—he must show: 1) the loss of a 

‘nonfrivolous’ or ‘arguable’ underlying claim; 2) the official acts frustrating the litigation; and 3) 

 

8

To the extent these are new arguments made for the first time in his response to the 

pending motion for summary judgment, the Court declines to address them individually. See 

Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 965 (9th Cir. 2006) (finding that a district 

court need not address allegations raised for the first time in a response to a motion for summary 

judgment where the plaintiff’s “pleadings did not provide sufficient notice of those allegations”).
PAGE 11 – OPINION AND ORDER

a remedy that may be awarded as recompense but that is not otherwise available in a future suit.”

Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (quoting Christopher v. Harbury, 536 U.S. 

403, 413-14 (2002)), judgment vacated on other grounds, 555 U.S. 1150 (2009). Plaintiff cannot 

succeed on any of his access-to-court claims because he has failed to identify any actual injury

caused by any such alleged constitutional deprivation. See Lewis, 518 U.S. at 351 (requiring 

more to establish actual injury than alleging that a prison law library is “subpar in some 

theoretical sense”).

In his amended complaint, Plaintiff alleges that his petition for post-conviction relief was 

procedurally defaulted, and that his parental rights were terminated, as a result of the alleged 

constitutional deprivations. (Am. Compl. at 17.) Plaintiff restates similar allegations in his 

amended declaration. (Johnson Decl. at 2, 10-11.) However, Plaintiff has submitted no 

explanation, or evidence, tying any alleged lack of access to his legal materials to the loss of any 

specific claim.9

Plaintiff’s vague statements are not enough to demonstrate an actual injury that resulted 

from the alleged constitutional deprivations, which is fatal to his claims.10

 

9

In any event, the right of access to courts does not apply to family court proceedings. 

See Lewis, 518 U.S. at 354 (observing that the right extends only to appeals of convictions for 

which prisoners are incarcerated, habeas corpus proceedings, and civil rights actions to vindicate 

basic constitutional rights). Furthermore, Plaintiff was represented by counsel in family court. 

(Am. Compl. at 11.) Prison officials had no further obligation to provide Plaintiff access to 

courts. See Lindquist v. Idaho St. Bd. of Corr., 776 F.2d 851, 955 (9th Cir. 1985) (holding that “a 

prison must provide inmates with access to an adequate law library or, in the alternative, with 

adequate assistance from persons trained in the law”) (emphasis in original).

10 Furthermore, to the extent Plaintiff challenges ODOC’s library policies (Am. Compl. at 

6), Plaintiff was released from the custody of ODOC in 2015 and therefore his claims for 

prospective relief, either injunctive or declaratory, are moot because he “is no longer subject to 

the prison conditions or policies he challenges.” Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 

2012).
PAGE 12 – OPINION AND ORDER

2. Procedural Due Process

Plaintiff alleges that he was denied his right to procedural due process with respect to 

three periods in solitary confinement and three transfers between ODOC institutions.

Plaintiff must have a liberty interest to be entitled to procedural due process. That interest 

may be found in either the Due Process Clause of the Fourteenth Amendment or in state law. 

Chappell v. Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013). With respect to prison conditions, 

the now well-settled inquiry is whether prison conditions “impose[] [an] atypical and significant 

hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 

U.S. 472, 483-84 (1995). The Sandin Court considered three factors in making its determination: 

(1) whether the conditions in disciplinary segregation mirrored those in administrative 

segregation and protective custody; (2) whether the confinement exceeded similar, discretionary 

confinement in terms of duration or degree of restriction; and (3) whether “the State’s action will 

inevitably affect the duration of [the prisoner’s] sentence.” Id. at 486-87. If a liberty interest is 

found, pursuant to either the Due Process Clause or state law, the remaining question is whether 

Plaintiff received the amount of process he was due. Cleveland Bd. of Educ. v. Loudermill, 470 

U.S. 532, 541 (1985) (“. . . once it is determined that the Due Process Clause applies, the 

question remains what process is due.”).

a. Solitary Confinement

Plaintiff has no liberty interest under the Due Process Clause in avoiding disciplinary 

segregation. Time in disciplinary segregation is the type of condition ordinarily contemplated by 

Plaintiff’s sentence. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (finding no liberty 

interest in avoiding placement in disciplinary segregation before a disciplinary hearing). Thus, 
PAGE 13 – OPINION AND ORDER

Plaintiff has no liberty interest under the Due Process Clause itself and must look for a statecreated interest.

Plaintiff was placed in disciplinary confinement on three occasions, for durations of 

thirteen, fourteen, and fifteen days, and in administrative confinement on one occasion, for a 

duration of fifteen days. District courts in the Ninth Circuit have held that segregation from forty 

days to two-and-a-half years in duration does not impose an atypical and significant hardship 

giving rise to a protected liberty interest. See LaFleur v. Nooth, No. 2:12-cv-00637-SI, 2014 WL 

1236138, at *4-5 (D. Or. Mar. 25, 2014) (collecting cases). The Ninth Circuit has more recently 

held that a twenty-seven month stay in solitary confinement without any meaningful review 

“imposed an atypical and significant hardship under any plausible baseline.” Brown v. Or. Dep’t

of Corr., 751 F.3d 983, 988 (9th Cir. 2014). By contrast, Plaintiff’s longest stay in segregation 

was fifteen days. Thus, the duration of Plaintiff’s time in segregation did not impose an atypical 

and significant hardship giving rise to a protected liberty interest.

Other than duration, the only conditions of confinement that Plaintiff alleges were 

atypical were the conditions in disciplinary segregation following the skin-search incident. 

Regarding that incident, Plaintiff complains that his cell was small, his only human contact was 

with the guards during meals and when doing their rounds, and his only time out of isolation was 

once a week for a ten-minute shower. (Johnson Decl. at 9.) Those are typical solitary 

confinement conditions, and do not rise to the level of an atypical hardship when experienced for 

a short duration. See Chappell, 706 F.3d at 1063 (“Only the most extreme changes in the 

conditions of confinement have been found to directly invoke the protections of the Due Process 
PAGE 14 – OPINION AND ORDER

Clause, such as involuntary commitment to a mental institution or the forced administration of 

psychotropic drugs.”) (internal citations omitted).

11

In any event, Plaintiff has also failed to demonstrate that any named individual defendant 

was involved in the initiation or continuation of his placement in administrative or disciplinary 

segregation. Joseph’s only involvement in the skin-search incident leading to the first period of 

segregation was ordering the skin search. Hayes conducted the search, Moore came to his aid 

when Plaintiff would not follow orders or submit to restraints, and Moore (not a defendant) 

submitted the misconduct report prompting the disciplinary proceedings. (Nofziger Decl. Att. 1,

at 1.) No defendant was involved in the transport incident leading to the second period of 

segregation. Plaintiff was segregated after Multnomah County staff reported that Plaintiff was so 

disruptive during transport that he was tased twice. (Dorgan Decl. ¶ 7.) No defendant was 

involved in the cell-search incident leading to the third period of segregation. Alves (not a 

defendant) conducted the search and submitted the misconduct report. (Nofziger Decl. Att. 1, at 

1.) Finally, the fourth period of segregation was at OSP (Nofziger Decl. ¶¶ 10-12, Att. 3), and all

of the named Defendants worked at OSCI or CRCI. (Gushard Decl. ¶ 1; Hust Decl. ¶ 1; Joseph 

Decl. ¶ 1; Noack Decl ¶ 1.) Because Defendants were not involved in the alleged deprivations of 

Plaintiff’s due process rights, they cannot be held liable under § 1983. See Jones v. Williams, 297 

 

11 The Supreme Court has held that “[s]egregation of a prisoner without a prior hearing 

may violate due process if the postponement of procedural protections is not justified by 

apprehended emergency conditions.” Hughes v. Rowe, 449 U.S. 5, 11 (1980) (citing Hayes v. 

Walker, 555 F.2d 625, 633 (7th Cir. 1977)). However, the Misconduct Reports for two of the 

three incidents resulting in Plaintiff’s placement in disciplinary segregation include statements 

from the officers-in-charge that prehearing segregation was required because Plaintiff posed a 

threat to institutional safety and security (the officer-in-charge’s statement on the third 

Misconduct report was illegible). Furthermore, although Plaintiff did not receive a hearing before 

he was placed in administrative segregation, such a hearing is not required under the applicable 

Oregon Administrative Rules. See OR. ADMIN. R. 291-046-0025 & 291-046-0030 (requiring only 

post-segregation hearings and only where the involuntary placement exceeds thirty days).
PAGE 15 – OPINION AND ORDER

F.3d 930, 934 (9th Cir. 2002) (for liability to attach, “there must be a showing of personal 

participation in the alleged rights deprivation”). As such, Defendants are entitled to summary 

judgment on Plaintiff’s due process claim based on his stays in solitary confinement.

b. Transfers

For the same reasons, Defendants are entitled to summary judgment on Plaintiff’s due 

process claim based on his transfers between ODOC facilities. Plaintiff was transferred on three 

occasions: from CRCI to OSP on January 23, 2015; from OSP to OSCI on February 20, 2015; 

and from OSCI back to OSP on May 27, 2015. (Dorgan Decl. ¶ 3, Att. 1.) Plaintiff alleges that 

each transfer was a punishment because he was a minimum-security prisoner, and OSP and 

OSCI are maximum and medium-security institutions, respectively, whereas CRCI, Plaintiff’s 

original placement, is a minimum-security institution. (Am. Comp. at 11, 13 & 16.)

It is well settled that “the Due Process Clause in and of itself [does not] protect a duly 

convicted prisoner against transfer from one institution to another within the state prison 

system.” Meacham v. Fano, 427 U.S. 215, 225 (1976) (holding that the Due Process Clause does 

not require pre-transfer hearings).12 Nor has Plaintiff alleged facts sufficient to demonstrate that 

his assignment to OSP or OSCI posed a significant and atypical hardship in relation to the 

ordinary incidents of prison life. He has provided no facts regarding the conditions of 

confinement at OSP or OSCI as compared to CRCI with which the Court could engage in the 

Sandin analysis, nor has he alleged that the transfers lengthened his term of incarceration. See 

Thomasson v. Premo, No. 6:14-CV-01788-MO, 2017 WL 2403565, at *6 (D. Or. June 2, 2017)

(declining to find that conditions at one institution were harsher than those at another where 

 

12 Similarly, the Ninth Circuit has held that prisoners have no due process right to a 

particular classification status. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). 
PAGE 16 – OPINION AND ORDER

plaintiff “failed to allege any facts to support that belief”), appeal dismissed, No. 17-35536, 2017 

WL 4404728 (9th Cir. Aug. 28, 2017). 

In any event, Plaintiff has also failed to allege that he received insufficient process before 

his transfers or that Defendants were responsible for the amount of process he received. 

Plaintiff’s first transfer, from CRCI to OSP, was approved by OPM, which makes final decisions 

regarding prisoner transfers. (Dorgan Decl. ¶ 14.) The transfer was first recommended by MDT, 

which reviews the status of all prisoners in special housing. (Dorgan Decl. ¶¶ 4, 9; Noack Decl.

Att. 3, at 7.) Plaintiff was administratively segregated on January 14, 2015, following the tasing 

incident during his return transfer from Multnomah County court proceedings to CRCI. (Dorgan 

Decl. ¶ 7.) MDT reviewed Plaintiff’s status the next day, January 15, 2015, and recommended 

that Plaintiff’s “behavior made him a security risk for continued placement at CRCI, and that 

security risk was best mitigated by transferring [him] to another facility. . . .” (Dorgan Decl. ¶¶ 

9-12.) A transfer request was made January 21, 2015, and MDT met again on January 22 and did 

not change its recommendation. (Dorgan Decl. ¶ 13, Att. 3, 4.)

Plaintiff alleges that Noack visited him in his cell and told him he was being transferred 

to OSP because he was a problem. (Am. Compl. at 11.) He does not allege any other 

involvement by her or any other defendant. For example, he does not allege that any defendant 

participated in the MDT meetings, was a member of OPM, or made recommendations to either 

body. The record is silent as to the proceedings leading to Plaintiff’s later two transfers, from 

OSP to OSCI and back; however, Plaintiff does not allege defendant involvement, nor could he 

because no named defendant worked at OSP. (Hust Decl. ¶ 1; Joseph Decl. ¶ 1; Noack Decl ¶ 1.)

Gushard worked at OSCI (Gushard Decl. ¶ 1), but his only alleged involvement in Plaintiff’s 

transfer from that institution is ordering a cell search that led to a misconduct incident, which 
PAGE 17 – OPINION AND ORDER

resulted solitary confinement and then a transfer. (Am. Compl. at 15-16.) Such indirect 

“involvement” does not give rise to liability under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 

676 (2009) (stating that § 1983 “plaintiff[s] must plead that each Government-official defendant, 

through the official’s own individual actions, has violated the Constitution”). Plaintiff has not 

demonstrated an issue of material fact regarding Defendants’ involvement in his transfers. 

Therefore, Defendants are entitled to summary judgment on Plaintiff’s transfer-based due 

process claims.

3. Eighth Amendment

Plaintiff brings an Eight Amendment claim without tying it to any of the allegations in 

his complaint. The allegations that could implicate the Eighth Amendment are those regarding 

Plaintiff’s general conditions of confinement and the failure of prison officials to protect him 

from harm caused by other prisoners. Neither constitutes cruel and unusual punishment under the 

circumstances alleged here.

Plaintiff must meet two requirements to hold a prison official constitutionally liable under 

the Eighth Amendment’s Cruel and Unusual Punishments Clause. The first requirement is 

objective: the alleged deprivation must be “sufficiently serious[.]” Farmer v. Brennan, 511 U.S. 

825, 834 (1994) (internal quotation marks omitted). When the deprivation is based on the 

prisoner’s conditions of confinement, this standard may be met by showing that the conditions 

“deprive[d] inmates of the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 

452 U.S. 337, 347 (1981). When the deprivation is based on a prison official’s failure to protect a 

prisoner, this standard may be met by showing that the “conditions pos[ed] a substantial risk of 

serious harm.” Farmer, 511 U.S. at 834. The second requirement is subjective: the “prison 

official must have a sufficiently culpable state of mind.” Id. Such a sufficiently culpable state of 
PAGE 18 – OPINION AND ORDER

mind is one of “deliberate indifference to inmate health or safety.” Id. (internal quotation marks 

omitted). The test for such deliberate indifference is whether the prison official “knows that 

inmates face a substantial risk of serious harm and disregards that risk by failing to take 

reasonable measures to abate it.” Id. at 837. Stated another way, “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.

a. Conditions of Confinement

Plaintiff’s cruel and unusual punishment claim based on the conditions of his 

confinement cannot survive summary judgment. Plaintiff fails to identify any conditions that 

amount to deprivations of the minimal civilized measure of life’s necessities, and he fails to 

attribute his conditions of confinement to any specific defendant. Thus, Plaintiff cannot maintain 

an Eighth Amendment violation based on his conditions of confinement.

b. Failure to Protect

Plaintiff’s failure to protect claim cannot survive summary judgment for the same reason. 

Plaintiff alleges that, despite his classification as a minimum-security inmate, he was “released to 

the main population” at OSP, where he was “assaulted several times by other inmates” and 

“endured for a[n] extended period of time, without having the option for protective custody.” 

(Am. Compl. at 12.) Even assuming that these allegations are true, Plaintiff fails to connect these 

allegations to any specific defendant. To the extent he blames Defendants for their alleged role in 

his transfer to OSP, the connection to any assaults Plaintiff endured while housed there is too 

tenuous to demonstrate that Defendants knew he was at a substantial risk for serious harm at the 

hands of other prisoners and failed to take reasonable measures to avoid such a risk. Plaintiff 

cannot sustain his Eighth Amendment claims.
PAGE 19 – OPINION AND ORDER

4. Fourth Amendment

Plaintiff asserts a violation of his Fourth Amendment right to be free from unreasonable 

searches and seizures. He complains that he was “strip searched and humiliated in the presence 

of several female officers.” (Am. Compl. at 10.) Plaintiff also claims that defendant Gushard 

took library books from his cell and that another correctional officer looked through the legal 

documents in his cell and seized “material evidence[.]” (Am. Compl. at 15-16.)

The Fourth Amendment proscribes unreasonable searches and seizures only. Carroll v. 

U.S., 267 U.S. 132, 147 (1925). “The test of reasonableness . . . requires a balancing of the need 

for the particular search against the invasion of personal rights that the search entails. Courts 

must consider the scope of the particular intrusion, the manner in which it is conducted, the 

justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 

520, 559 (1979).

a. Skin Search

Skin or strip searches of male prisoners in the view of female officers may or may not be 

reasonable, depending on the circumstances. For example, the Ninth Circuit upheld a prison 

policy where female officers sometimes viewed male prisoners while undressed and routinely 

performed pat-down searches not involving intimate bodily contact. Grummett v. Rushen, 779 

F.2d 491, 493, 495-96 (9th Cir. 1985) (reasoning that the observations were “restricted by 

distance” and “casual in nature” and that the pat-downs were “brief and while the inmates were 

fully clothed”); see also Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988) (upholding 

routine strip searches conducted outside prisoners’ cells where they could be viewed by female 

officers). However, “[c]ourts throughout the country have universally frowned upon crossgender strip searches in the absence of an emergency or exigent circumstances.” Byrd v. 
PAGE 20 – OPINION AND ORDER

Maricopa Cty. Sheriff’s Dep’t., 629 F.3d 1135, 1143 (9th Cir. 2011). In Byrd, the Ninth Circuit 

found unreasonable a strip search by a female officer of a male prisoner where the prisoner was 

almost completely unclothed, the officer touched his genitals through thin boxer shorts, there 

was no emergency, there were onlookers, and an onlooker videotaped the search. Id. at 1142.

Here, Plaintiff went through the medication line in a common area at CRCI, supervised 

by Joseph. (Joseph Decl. ¶ 7.) As Joseph describes the incident, Plaintiff ignored Joseph’s orders 

that he stick out his tongue so that she could make sure he had taken his medicine. Joseph then 

observed Plaintiff bring a hand to his mouth and to his pockets. Plaintiff ignored Joseph’s orders 

that he take his hands from his pockets and tuck in his shirt so she could see his pockets. He also 

ignored a warning that she would request a skin search if he did not comply. Only after all that 

did Defendant Johnson call for intake staff to skin-search Plaintiff. (Joseph Decl. ¶ 8, Att. 2.)

Thomas Hayes, a CRCI correctional officer, received Joseph’s radio call that Plaintiff 

required a skin search. (Hayes Decl. ¶ 5, Att. 2.) He searched Plaintiff and his clothes in the 

intake area’s center search booth, with the curtain closed. (Hayes Decl. ¶¶ 5-6, Att. 2.) No 

women were present or within view of Plaintiff during the search. (Hayes Decl. ¶ 6.) When 

Plaintiff ignored orders to get dressed, Moore intervened and ordered Plaintiff to submit to 

restraints. (Id.) Again, Plaintiff did not comply, so Moore called for first responders. (Hayes 

Decl. ¶ 7; Lange Decl. Att. 2, at 6.) Siegel, a woman, was on call as a designated first responder. 

(Hayes Decl. ¶ 7.) She “stood post in the staging area of Intake” and did not enter the search area 

until called, at which time Plaintiff was partially clothed. (Id.; Joseph Decl. ¶¶ 7-8; Lange Decl.

Att. 2, at 9.) She did not enter the search booth until Plaintiff “became argumentative and began 

waving his arms to make his point.” (Hayes Decl. ¶ 8.)
PAGE 21 – OPINION AND ORDER

The search of Plaintiff was reasonable in light of CRCI’s need for the search and 

Plaintiff’s privacy rights. The scope of the intrusion was limited. Plaintiff underwent a visual 

inspection while undressed, and his clothes were inspected, but he was not physically touched. 

The manner in which the search was conducted was consistent with OR. ADMIN. R. 291-041-

0020, which requires skin searches to be conducted in a private area and by an officer of the 

same gender as the prisoner, except in emergency situations. (Lange Decl. ¶¶ 9-13, Att. 3, at 6.)

The justification for initiating the search was Joseph’s reasonable suspicion that Plaintiff had 

stashed his medication, which “can threaten the safety and security of the institution, and can 

pose medical risks to inmates who consume the diverted medication.” (Joseph Decl. ¶ 7.) Finally, 

the place in which the search was conducted was the place where all CRCI inmates are searched, 

a private booth where only the officer performing the search can view the prisoner being 

searched. (Lange Decl. ¶¶ 15-16, Att. 4.)

All of the Bell v. Wolfish factors weigh strongly in favor of reasonableness. Indeed, the 

search of Plaintiff here was more private than those upheld in Michenfelder and Grummett. 

Accordingly, the skin search did not violate Plaintiff’s Fourth Amendment right to be free from 

unreasonable searches.

b. Cell Searches by Gushard and Alves

Plaintiff claims that Gushard came to his cell and seized his legal reference books on 

several occasions. (Johnson Decl. at 19.) Plaintiff further claims that Gushard sent Alves to 

search his cell and seize legal material. (Id.) Even assuming these searches occurred in the 

“wrongful” manner Plaintiff describes, they do not implicate the Fourth Amendment. The 

Supreme Court held in 1984 that “prisoners have no legitimate expectation of privacy and that 

the Fourth Amendment’s prohibition on unreasonable searches does not apply in prison cells.” 
PAGE 22 – OPINION AND ORDER

Hudson v. Palmer, 468 U.S. 517, 530 (1984). The Court concluded that its reasoning applied to 

unreasonable seizures, too: “Prison officials must be free to seize from cells any articles which, 

in their view, disserve legitimate institutional interests.” Id. at 528, n.8. Thus, Plaintiff cannot 

establish a Fourth Amendment violation with regard to the search of his cell or seizure

therefrom.

Plaintiff also alleges that he caught Alves reading his legal work. (Johnson Decl. at 20.) 

Such conduct raises an issue under the First Amendment rather than the Fourth Amendment. 

Giba v. Cook, 232 F. Supp. 2d 1171, 1186 (D. Or. 2002) (“[W]hether a prison official can search 

and read legal materials outside of an inmate’s presence is a different question that is more 

appropriately considered under the First Amendment[.]”). However, the Court declines to engage 

in that analysis, as Plaintiff has not named Alves as a defendant in this case. To hold Gushard 

liable for Alves’ alleged actions would require “not only . . . some kind of direct personal 

participation in the deprivation but also . . . setting in motion a series of acts by others which the 

actor knows or reasonably should know would cause others to inflict the constitutional injury.” 

Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987). However, Plaintiff has not alleged facts 

from which the Court could infer such participation by Gushard. See Leer v. Murphy, 844 F.2d 

628, 633 (9th Cir. 1988) (“The inquiry into causation must be individualized and focus on the 

duties and responsibilities of each individual defendant whose acts or omissions are alleged to 

have caused a constitutional deprivation.”). Plaintiff’s Fourth Amendment claims cannot survive 

summary judgment.

5. First Amendment Retaliation

Plaintiff asserts a First Amendment retaliation claim “for exercising [his] Fifth and 

Fourteenth Amendment Rights to Due Process and Equal Protection.” (Am. Compl. at 16.) More 
PAGE 23 – OPINION AND ORDER

specifically, he alleges that he was harassed by ODOC staff for exercising his own right of 

access to courts and for helping other prisoners with legal research regarding “discriminatory 

practices implemented by D.O.C. administrators[.]” (Am. Compl. at 8-9.) A First Amendment 

retaliation claim in the prison context requires five elements: “(1) An assertion that a state actor 

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

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.” Rhodes v. Robinson, 408 F.3d 

559, 567-68 (9th Cir. 2005).

a. Hust

Plaintiff alleges that Hust deleted legal information from his assigned thumb drive, 

confirming his suspicion that he was being targeted for harassment in retaliation for his “efforts 

to assist [his] fellow inmates.” (Am. Compl. at 9.) Plaintiff states that he filed a grievance against 

Hust for deleting items from his thumb drive, which he alleges resulted in further retaliation by 

Noack and Joseph and harassment by prison guards generally. (Am. Compl. at 9-10.) Hust denies 

ever speaking to Plaintiff about his thumb drive and denies deleting anything from his thumb 

drive. (Hust Decl. ¶ 28.) She also denies being notified of a grievance filed by Plaintiff against 

her, which notification, along with an opportunity to respond, would “[o]rdinarily” follow a 

grievance. (Hust Decl. ¶ 29.)

To survive Defendants’ motion for summary judgment, Plaintiff must “cit[e] to particular 

parts of materials in the record” to support his assertion “that a fact . . . is genuinely disputed.” 

FED. R. CIV. P. 56(c)(1)(A). Plaintiff has not done so here. In his declaration in support of his 

amended response (ECF No. 72-1), Plaintiff restates his allegations in a bit more detail than in 

his amended complaint, but does not provide any factual support, nor does he present evidence to 
PAGE 24 – OPINION AND ORDER

support his statements, such as affidavits of fellow prisoners. Plaintiff alleges that Hust called 

him to the law library two days after speaking to inmates who filed prison grievances and asked 

why he needed legal information pertaining to civil rights law on his thumb drive. (Johnson 

Decl. at 4-5.) He alleges he told Hust that the relevant information was needed “for an imminent 

court deadline[,]” and Hust responded that he had no right to the information and deleted it. 

(Johnson Decl. at 5.)

These allegations simply echo those in Plaintiff’s amended complaint. (ECF No. 8.)

Plaintiff does not provide the dates on which these alleged events occurred so that the Court 

could infer causation. He does not describe what documents were deleted from the thumb drive 

so that the Court may assess whether they were in compliance with prison policy regarding 

thumb drives, i.e., whether Hust actually took an adverse action by deleting them and whether 

Plaintiff’s rights were chilled by the deletion. Such “[a] conclusory, self-serving affidavit, 

lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of 

material fact.” F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as 

amended (Apr. 11, 1997.)

b. Noack

Plaintiff’s retaliation claim against Noack is based on three alleged incidents: (1) Noack 

called Plaintiff to her office after he filed the grievance against Hust, told him he had no legal 

rights while in custody, and refused to give him a copy of his grievance form, which incident 

was followed by general harassment by correctional staff; (2) Noack visited Plaintiff’s cell and 

told him he was being transferred because he “was a problem”; and (3) Noack made “libelous 

and derogatory comments” that were “disseminated throughout the interagency email system,” 
PAGE 25 – OPINION AND ORDER

resulting in Plaintiff being “‘black balled’ from being transferred to a proper facility.” (Am.

Compl. at 9-12.)

Noack denies meeting with Plaintiff and discussing his grievance. That is the role of the 

CRCI Grievance Coordinator. (Noack Decl. ¶ 5.) Furthermore, she presents evidence of 

Plaintiff’s grievance history, showing that he filed only one grievance while incarcerated, which 

grievance was regarding a CPAP machine and not against Noack. (Noack Decl. Att. 2.) As for 

Plaintiff’s transfer to OSP, Noack states that MDT met on January 15 and January 22, 2015, “to 

review the status of all inmates in CRCI’s special housing.” (Noack Decl. ¶¶ 17-18.) Ultimately 

OPM approved Plaintiff’s transfer to OSP. (Noack Decl. ¶ 19.) Noack states that she was not 

involved in either MDT’s or OPM’s “consideration or decisions” to transfer Plaintiff. (Noack 

Decl. ¶ 20.) As for Plaintiff’s allegation that Noack told him he was being transferred because he 

was a problem, Noack states that she does “not recall ever meeting or discussion with Inmate 

Johnson on any matter[.]” (Noack Decl. ¶ 5.)

In his opposition (ECF Nos. 72 & 72-1), Plaintiff simply restates the allegations in his 

amended complaint regarding the grievance. He offers nothing to controvert ODOC’s record of 

his grievance history, which contains no grievance against Hust or Noack. Accordingly, there is 

no issue of material fact as to Plaintiff’s grievance-based retaliation claim against Noack. 

As for Plaintiff’s other allegations, Plaintiff claims that Noack was “the only highranking official present and waiting outside the prison” when Plaintiff arrived back from 

Multnomah County. (Johnson Decl. at 13.) He claims that she was in discussion with one of the 

transport deputies, called a nurse to address Plaintiff’s injuries, ordered the guards present to take 

Plaintiff to solitary confinement, and later “disseminated a false account of the incident to other 

prison staff” in an effort to have Plaintiff transferred to another facility. (Johnson Decl. at 13, 
PAGE 26 – OPINION AND ORDER

15.) However, Noack was not on shift on January 14, 2015, when Plaintiff returned to CRCI. 

(Noack Decl. ¶ 15; see also Defs.’ Reply Supp. Mot. Summ. J. (ECF No. 76 at 12, n.4) (stating 

that Lieutenant Sean Johnson was on shift, not Noack)).

Plaintiff claims that these additional allegations would be corroborated by a video 

recording taken by a corrections officer had the recording been produced in discovery, as 

requested. (Johnson Decl. at 13.) However, even assuming that Plaintiff’s additional allegations 

are true, they would only support the first element of a retaliation claim: adverse action by the 

defendant. Plaintiff fails to demonstrate any causal connection between that adverse action and 

his protected conduct. His allegation that Noack’s actions followed his grievance against Hust is 

directly contradicted by his prison grievance record and improperly relies on the logical fallacy 

of post hoc, ergo propter hoc (after this, therefore because of this). See Huskey v. City of San 

Jose, 204 F.3d 893, 899 (9th Cir. 2000) (refusing to find a nexus between adverse action and 

protected conduct based on such false logic). Furthermore, Plaintiff does not assert that Noack’s 

alleged actions chilled the exercise of his First Amendment rights or that they failed to further a 

legitimate correctional goal. Noack is entitled to summary judgment.

c. Joseph

Plaintiff alleges that Joseph “attempted to incite a[n] incident of misconduct and when 

[he] did not react to the mistreatment” Joseph falsely alleged that Plaintiff attempted to conceal 

medication, resulting in a strip search. (Am. Compl. at 10; Johnson Decl. at 6.) On December 5, 

2014, Joseph supervised CRCI’s medication line, where one of her duties was to ensure that 

prisoners took their medication rather than store it to barter or stash later. (Joseph Decl. ¶ 7.) She 

states that Plaintiff only lifted up his tongue after several orders, brought a hand to his mouth and 

then to his pocket, and then repeatedly refused her orders to remove his hand from his pocket and 
PAGE 27 – OPINION AND ORDER

tuck in his shirt. Only then did she order a skin search of Plaintiff. (Joseph Decl. ¶ 8.) Further, 

she states that she did not issue a misconduct report or take any other disciplinary action but that 

she did submit a memo describing the incident to the Shift Lieutenant. (Joseph Decl. ¶ 9.) That 

memo’s description of the incident is consistent with Joseph’s declaration. (Joseph Decl. Att. 2.)

Plaintiff insists that his description of the skin search incident would be proven correct by 

video surveillance, had the recording been produced in discovery as requested. (Johnson Decl. at 

6.) However, assuming Plaintiff’s version of events is true would only create a factual dispute as 

to the adverse action element of a First Amendment retaliation claim. As with his claim against 

Noack, Plaintiff draws no causal connection between Joseph’s alleged actions and his own 

protected conduct, and he provides no basis for his belief that Joseph was not acting to promote 

the legitimate correctional goal of preventing the stashing or bartering of medicine. The closest 

he comes is in stating that Joseph “did not treat the last two inmates before me the same way” 

and that Joseph’s “false actions and harsh tone of voice toward me was indicative of the same 

staff harassment that I had been previously subjected to[] . . . .” (Johnson Decl. at 7-8.) These are 

not “specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp. 

Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Such “mere assertions” of “discriminatory 

motivation . . . [are] inadequate, without substantial factual evidence, to raise an issue precluding 

summary judgment.” Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983).

d. Gushard

Plaintiff claims that Gushard refused to deviate from the prison’s “unconstitutional” 

policy (presumably regarding what legal material may be saved on prisoners’ thumb drives), 

reprimanded Plaintiff for requesting the material, then accosted him and “physically grabbed 

[him] by the throat while threatening to inflict corporal punishment.” (Am. Compl. at 14.) Next, 
PAGE 28 – OPINION AND ORDER

Plaintiff claims that Gushard “sent a fellow correctional officer to [his] cell to seize [his] legal 

reference books and . . . legal documents.” (Am. Compl. at 15.) Plaintiff identifies that 

correctional officer as Alves in his declaration. (Johnson Decl. at 19-20.) Plaintiff also claims 

Gushard himself came to his cell to seize his legal reference books “on several occasions[]” and 

that the books were not overdue. (Johnson Decl. at 19.)

Gushard denies the alleged physical assault, denies editing, modifying, or deleting legal 

material from Plaintiff’s thumb drive, and denies sending another officer to search Plaintiff’s 

cell. (Gushard Decl. ¶¶ 20-25.) Gushard admits retrieving books from Plaintiff’s cell, but only 

after sending Plaintiff “several notices” that the books were overdue. (Gushard Decl. ¶ 22.)

Even assuming Plaintiff’s version of events is true, Plaintiff cannot survive the motion for 

summary judgment on his First Amendment retaliation claim against Gushard because he fails to 

identify any protected conduct. With regard to the legal material stored on his thumb drive, 

Plaintiff acknowledges that he asked Gushard to “deviate” from prison policy. (Am. Compl. at 

14.) The OSCI Law Library ESD Usage Agreement states the rules for using the OSCI law 

library’s thumb drives, including what constitutes a legal document authorized to be saved to a 

thumb drive under OR. ADMIN. R. 291-139-0110(10). (Gushard Decl. Att. 5.) Plaintiff signed the 

agreement, thereby agreeing to follow the rules therein and acknowledging that he understood

that non-compliance may result in disciplinary measures.13 (Id. at 4.) Using the law library’s 

thumb drives for unauthorized purposes under the agreement is not protected conduct under the 

First Amendment. To be sure, access to courts “is subsumed under the First Amendment right to 

petition the government for redress of grievances.” Perry, 1994 WL 374551, at *2. However, as 

 

13 Plaintiff attempted to add to the list of authorized Legal Documents, which addition 

Gushard crossed out and noted next to his initials “cannot write in your own purposes[.]” (Id. at 

2.)
PAGE 29 – OPINION AND ORDER

previously discussed, limiting the uses of law library word processors and thumb drives did not 

violate Plaintiff’s right of access to courts, nor did limiting the books Plaintiff could store in his 

cell. Thus, Plaintiff identifies no protected conduct prompting Defendant’s purported retaliation, 

and his retaliation claim therefore must fail.

All Defendants are entitled to summary judgment on Plaintiff’s First Amendment 

retaliation claims. To the extent that Plaintiff disputes the constitutionality of ODOC policies 

governing inmate access to law libraries and legal materials, any such claims are moot because 

Plaintiff is no longer in ODOC custody.

6. Equal Protection

Plaintiff also asserts that he was denied the equal protection of the laws, as prohibited by 

the Fourteenth Amendment. (Am. Compl. at 17.) “To state a claim under 42 U.S.C. § 1983 for a 

violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that 

the defendants acted with an intent or purpose to discriminate against the plaintiff based upon 

membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 

Plaintiff makes a few passing references to race in his amended complaint. For example, he lists 

“racial segregation” as one of the “injustices [he] endured” while in ODOC’s custody. (Am.

Comp. at 16.) The closest Plaintiff comes to alleging discrimination based on race is his 

allegation that he was singled out and harassed for assisting “fellow minority inmates” with 

“researching legal remedies to seek redress for ongoing and widespread discriminatory practices 

implemented by D.O.C. administrators.” (Am. Compl. at 9.) However, reading Plaintiff’s 

amended complaint as a whole makes clear that Defendants’ alleged motivation for their 

purported harassment was not racism but preventing Plaintiff from providing legal assistance as 

proscribed by ODOC policy.
PAGE 30 – OPINION AND ORDER

Furthermore, even if the Court were to interpret the above allegation to be one of racebased discrimination, Plaintiff has not met his summary judgment burden of demonstrating a 

factual dispute on the issue. “Rule 56(e) itself provides that a party opposing a properly 

supported motion for summary judgment may not rest upon mere allegation or denials of his 

pleading, but must set forth specific facts showing that there is a genuine issue for trial.” 

Anderson, 477 U.S. at 256. In his opposition (ECF Nos. 72 & 72-1), Plaintiff never mentions 

race or any other protected class, and “equal protection” is only mentioned in a heading. (ECF 

No. 72 at 9.) Thus, Plaintiff is resting on his pleadings, which is insufficient to survive a motion 

for summary judgment. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (refusing to 

“manufacture arguments for an appellant” where many other issues were presented).

As an alternative to the above class-based equal protection theory, under the so-called 

“class of one” theory, Plaintiff could state an equal protection claim by alleging that Defendants 

“intentionally treated [him] differently from others similarly situated and that there is no rational 

basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 

Plaintiff does, in fact, allege disparate treatment by Defendants. As discussed above, Plaintiff 

alleges being harassed for helping other prisoners with their legal work, which, were other 

prisoners allowed to do the same, would amount to disparate treatment. In response, Hust states 

that “[o]nly an inmate legal assistant is authorized to assist another inmate with legal work, and 

Inmate Johnson was not an inmate legal assistant.” (Hust Decl. ¶ 8.) In support, Hust attaches 

OR. ADMIN. R. 291-139-0010 and OR. ADMIN. R. 291-139-0015, defining “Legal Assistant” and 

delineating library procedures. (Hust Decl. Att. 2.) The reasoning behind the policy against 

allowing all prisoners to assist one another with legal work is that “inmates often want to be paid 
PAGE 31 – OPINION AND ORDER

for that service . . . which can subject inmates to coercion, retaliation, or other security risks.” 

(Hust Decl. ¶ 11.)

Plaintiff “must present affirmative evidence in order to defeat [such] a properly supported 

motion for summary judgment.” Anderson, 477 U.S. at 257. If the evidence is merely colorable, 

or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (internal 

citations omitted). “Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and 

by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ 

designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. v. Catrett, 

477 U.S. 317, 324 (1986). In his declaration in support of his amended response, Plaintiff states 

that prisoners helping one another with their legal work is “common” and that “the librarian 

allowed this activity[.]” (Johnson Decl. at 3.) He maintains that the only restriction is getting 

compensated for such help. (Johnson Decl. at 4.) Those are not specific facts sufficient to show a 

factual dispute as to disparate treatment. Plaintiff is improperly resting on his pleadings. 

Furthermore, he fails to address the remaining elements: intentionality and a lack of a rational 

basis for the disparate treatment. Therefore, Plaintiff has not met his burden of demonstrating

that a genuine factual dispute exists, and Defendants are entitled to summary judgment on 

Plaintiff’s equal protection claim.

7. Qualified Immunity

Plaintiff has not met his burden as to any of his § 1983 claims. Even if he had, Plaintiff 

has not addressed the issue of qualified immunity with respect to any of his claims. He does not 

attempt to establish that the rights at issue were clearly established such that Defendants 

understood the unlawfulness of their actions. See Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 

(2011) (“Qualified immunity shields federal and state officials from money damages unless a 
PAGE 32 – OPINION AND ORDER

plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and 

(2) that the right was ‘clearly established’ at the time of the challenged conduct[.]”) (citation and 

internal quotation mark omitted). Proving that the right at issue is clearly established is the 

plaintiff’s initial burden to bear. Sweaney v. Ada Cty., Idaho, 119 F.3d 1385, 1388 (9th Cir. 

1997). Plaintiff has not met his burden here.

B. 42 U.S.C. §§ 1985 & 1986 Claims

Plaintiff states without elaboration that “[t]he facts stated are sufficient to state a claim 

for violations of 42 U.S.C. Section 1985/1986/1988.” (Am. Compl. at 17.) To state a claim under 

42 U.S.C. § 1985, Plaintiff must allege that Defendants conspired in order to deprive Plaintiff of 

the equal protection of the laws or of equal privileges and immunities under the laws. Griffin v. 

Breckenridge, 403 U.S. 88, 102-03 (1971). Furthermore, Plaintiff must allege that Defendants

acted in furtherance of the conspiracy, thus injuring Plaintiff’s person or property or depriving 

Plaintiff of a right or privilege of U.S. citizenship. Id. at 103. Further still, “there must be some 

racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the 

conspirators’ action.” Id. at 102.

Plaintiff alleges that he was “maliciously harassed, physically threatened and punished[] 

simply because [he] exercised [his] fundamental right to access to courts.” (Am. Compl. at 8.)

He alleges that such harassment by “D.O.C. administrators” began shortly after he started 

assisting other prisoners with their legal matters (Am. Compl. at 9) and provides specific 

examples as to each Defendant’s actions. As to specific harm, Plaintiff alleges loss of his 

parental rights and denial of his petition for post-conviction relief due to untimeliness. (Am.

Compl. at 17.)
PAGE 33 – OPINION AND ORDER

Where Plaintiff fails, however, is in alleging a discriminatory animus, such as race or 

class, behind the Defendants’ purported conspiracy. He instead alleges that Defendants’ 

motivation was preventing his access to the courts. “Whatever may be the precise meaning of a 

‘class’ for purposes of . . . § 1985(3) beyond race, the term unquestionably connotes something 

more than a group of individuals who share a desire to engage in conduct that the § 1985(3) 

defendant disfavors.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 269 (1993). 

Defendants’ alleged animus toward prisoners seeking access to courts does not place Plaintiff in 

a qualifying class for purposes of § 1985(3). Accordingly, Defendants are entitled to summary 

judgment on both the § 1985 and § 1986 claims. See Trerice v. Pedersen, 769 F.2d 1398, 1403 

(9th Cir. 1985) (following “the broadly accepted principle that a cause of action is not provided 

under 42 U.S.C. § 1986 absent a valid claim for relief under section 1985”).14

C. State Law Claims

In addition to his federal law claims, Plaintiff alleges tort claims under state law, 

including negligence, invasion of privacy, defamation, and breach of fiduciary duty. (Am.

Compl. at 17.) However, “the sole cause of action for a tort committed by officers, employees, or 

agents of a public body acting within the scope of their employment or duties . . . is an action 

against the public body.” OR. REV. STAT. § 30.265(3). In such an action, where the plaintiff 

alleges damages in an amount less than or equal to those provided by OR. REV. STAT. §§ 30.271-

30.273, the Court will “substitute the public body as the defendant.” Id. In this case, Plaintiff 

alleges $200,000 in compensatory damages and an unspecified amount of punitive damages, well 

under the applicable multi-million dollar limits provided in OR. REV. STAT. § 30.271. 

 

14 Plaintiff is not entitled to attorney’s fees under 42 U.S.C. § 1988(b), because he is not a 

prevailing party and because § 1988 does not apply to self-represented litigants. Kay v. Ehrler, 

499 U.S. 432, 437-38 (1991). 
PAGE 34 – OPINION AND ORDER

Furthermore, the torts Plaintiff alleges Defendants committed all involved Defendants “acting 

within the scope of their employment or duties.”

Pursuant to OR. REV. STAT. § 30.265(3), the Court substitutes the State of Oregon as the 

proper defendant for Plaintiff’s state law claims. Because sovereign immunity deprives this 

Court of jurisdiction to adjudicate the state law claims, the Court dismisses the state law claims 

against the State of Oregon. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 44 (1996) (“The 

Eleventh Amendment presupposes that each State is a sovereign entity in our federal system and 

that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual 

without a State’s consent.”) (citation, quotation marks, and brackets omitted). Dismissal is 

without prejudice to Plaintiff’s right to pursue the claims in state court.

D. Other Pending Motions

Plaintiff filed a motion to compel production of documents (ECF No. 53). Defendants 

opposed the motion on the ground that Plaintiff’s discovery requests were untimely and 

impermissibly vague, but Defendants have nevertheless produced all documents regarding 

Plaintiff’s grievance and disciplinary history. (Defs.’ Resp. at 7.) In light of Plaintiff’s selfrepresented status, the Court delayed ruling on Plaintiff’s motion pending the Court’s 

consideration of the pending motion for summary judgment to determine if Plaintiff has 

identified any additional discovery he needed to support his opposition to the pending motion. 

Plaintiff notes in his opposition only that security camera footage from the skin search 

incident and the Multnomah County transport incident would prove his account of those 

incidents. (Johnson Decl. at 7.) He does not identify any documents or any other materials that 

were not produced in discovery that were necessary to respond to the pending motion for 

summary judgment.
PAGE 35 – OPINION AND ORDER

As an initial matter, it is doubtful that surveillance footage of either incident remains 

available, in light of the fact that the events occurred in late 2014 and early 2015, and Plaintiff 

did not submit a grievance or a contemporaneous complaint relating to either event to trigger 

preservation. In any event, as discussed above, the requested surveillance discovery would not 

have altered the Court’s analysis herein, even if Plaintiff had timely requested such discovery.

In addition, Plaintiff filed an amended response to the pending motion for summary 

judgment and styled it as a motion to amend/correct. (ECF No. 72.) The Court hereby GRANTS 

Plaintiff’s motion to amend his response and has considered the amended response herein.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ motion for summary

judgment (ECF No. 54); DENIES Plaintiff’s motion to compel production of documents (ECF 

No. 53); and GRANTS Plaintiff’s Motion to Amend/Correct (ECF No. 72).

IT IS SO ORDERED.

DATED this 6th day of July, 2018.

 

STACIE F. BECKERMAN

United States Magistrate Judge