Nightingale v. Parnell

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

CAMERON A. NIGHTINGALE, Case No. 6:20-cv-00406-MC

Plaintiff, ORDER

v.

BRANDON KELLY, OSP Superintendent;

JOHN CATALDO, OSP Captain; BRIAN

STEPHEN, OSP Captain; JERRY PLANTE;

ODOC S.I.U. Investigator; CRAIG PRINS;

ODOC Inspector General; KRAIG

MCGLATHERY, ODOC Asst. Inspector

General; JASON BROWN; ODOC Asst.

Inspector General; JEFFREY PARNELL,

OSP Corrections Officer; CLAYTON

BORDEN, OSP Captain; ADAM KIDWELL;

OSP Grievance Coordinator; ROB PERSSON;

Westside Institution Administrator; MICHAEL

GOWER, Assistant Director of Operations,

Defendants.

_______________________________________

MCSHANE, District Judge.

1 - ORDER

Plaintiff, an inmate in the custody of the Oregon Department of Corrections (ODOC),

brings this civil rights action pursuant to 42 U.S.C. § 1983 and alleges retaliation against him in

violation of his First Amendment rights and confiscation of his property in violation of his

Fourth and Fourteenth Amendment rights. Defendants now move for dismissal of plaintiff’s

claims against defendants Kelly, Cataldo, Stephen, Plante, Prins, Brown, Borden, Kidwell,

Persson, and Gower on grounds that plaintiff’s allegations fail to state viable claims for relief

under § 1983.1 Defendants also move to dismiss several claims against defendant Parnell on

grounds of untimeliness. Defendants’ motion is GRANTED.

BACKGROUND

Plaintiff’s Complaint includes nine “Causes of Action” arising from five interactions, or

“episodes,” between plaintiff and Officer Jeffrey Parnell, and a sixth episode related to the

investigations of plaintiff’s grievances against Officer Parnell. See Compl. (ECF No. 1).

Episode One occurred on June 4, 2017, when Officer Purcell allegedly searched

plaintiff’s cell and accused him of possessing contraband, threatened plaintiff with repeated

searches, and improperly confiscated plaintiff’s personal property. Compl. ¶¶ 18-23.

Episode Two occurred on June 18, 2017, when Officer Parnell allegedly conducted

another search of plaintiff’s cell in retaliation for plaintiff’s complaints about Officer Parnell’s

conduct. According to plaintiff, Officer Parnell “stole” $200 worth of property and destroyed

plaintiff’s television. Id. ¶¶ 28-29. After plaintiff filed a grievance and grievance appeal

regarding Parnell’s conduct, Grievance Coordinator Kidwell informed plaintiff that the grievance

1 Defendants do not seek dismissal of claims against defendant McGlathery, because he

no longer works for ODOC and service of summons was not waived on his behalf. Regardless,

plaintiff fails to state a claim against McGlathery and the claims against him are dismissed for

the reasons explained below.

2 - ORDER

process had been suspended because Officer Parnell was on leave from the institution. Id. ¶ 34.

After Officer Parnell returned to work on December 3, 2018, Kidwell reinstated the grievance at

plaintiff’s request. Id. ¶ 48.

Episode Three occurred on November 19, 2018, when Officer Parnell sent plaintiff to a

waiting area for ninety minutes and allegedly threatened plaintiff with transfer to another

institution if he continued to file grievances. Id. ¶¶ 37-39. Plaintiff alleges that he “sought

resolution by having this dispute reported” to Jerry Plante of the Special Investigation Unit.

Compl. ¶ 41.

Episode Four occurred on December 4, 2018, when Officer Parnell allegedly conducted a

“shake down” search of plaintiff’s cell and falsely accused plaintiff of possessing “escape

devices.” Id. ¶ 49. Plaintiff claims that he was placed in disciplinary segregation for twenty-five

days as a result of the false allegations, and that Officer Parnell never issued a misconduct report

or formally charged plaintiff with a rule violation. While plaintiff was in segregation, he lost his

prison job when it was assigned to another inmate. Id. ¶¶ 49-51.

Episode Five occurred in late December 2018. Plaintiff’s property had been held in

storage during his time in disciplinary segregation, and when he was released, plaintiff

discovered that several items were missing. Plaintiff alleges that Officer Parnell failed to prepare

a list of items that were confiscated on December 4, 2018, as required by prison regulations, and

that he stole plaintiff’s property. Compl. ¶¶ 60-61.

Finally, Episode Six occurred between January and May 2019, when Capt. Stephen and

Capt. Borden investigated plaintiff’s complaints against Officer Parnell and his claims of

property loss. Plaintiff alleges that Capt. Stephen disavowed his previous assurance that Officer

Parnell would be held accountable for his alleged actions and plaintiff would be compensated for

3 - ORDER

his losses and reinstated at his prison job, and that Capt. Borden denied him fair compensation

for his losses when negotiating a settlement with plaintiff. Compl. ¶¶ 68-74, 86, 102. During that

time, Supt. Kelly responded to several of plaintiff’s grievance appeals about his missing property

and implied that Officer Parnell did not follow ODOC procedures when searching plaintiff’s cell

and confiscating his property. Id. ¶¶ 27, 76.

Plaintiff further alleges that he sent “numerous letters” to Inspector General Craig Prins

and S.I.U. Investigator Plante and requested that they initiate a criminal investigation into Officer

Parnell’s actions. Id. ¶¶ 83, 84. Plaintiff contends that they, along with Assistant Inspectors

General McGlathery and Brown, refused to initiate an investigation or refer plaintiff’s

allegations to the Oregon State Police. Id. Plaintiff likewise alleges that he sought assistance

from Supt. Kelly and Westside Institution Administrator Persson in an attempt to obtain adequate

compensation for his property loss. Id. ¶¶ 93-94. Supt. Kelly did not respond to his request, and

Persson forwarded plaintiff’s request to Michael Gower, Assistant Director of Operations, who

responded that the matter was “closed.” Compl. ¶ 94. Plaintiff subsequently complained to

Grievance Counselor Kidwell about delays in the grievance process. Id. ¶¶ 94-96.

Based on Episodes One through Five, plaintiff brings claims of First Amendment

retaliation and unlawful seizure of property against Officer Parnell. Plaintiff brings claims

against the remaining defendants on grounds that they failed to take appropriate action against

Officer Parnell in response to plaintiff’s grievances and did not fairly compensate plaintiff for his

property loss.

DISCUSSION

Defendants move for dismissal of all claims except for plaintiff’s claims of retaliation

against Officer Parnell arising from Episodes Two through Five. Defendants maintain that claims

4 - ORDER

against Officer Parnell arising from Episode One are untimely and that plaintiff’s allegations

against the remaining defendants fail to state a claim upon which relief may be granted. See Fed.

R. Civ. P. 12(b)(6).2

When challenged by a motion to dismiss, a complaint is construed in favor of the plaintiff

and its factual allegations are taken as true. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

(9th Cir. 2010). However, the court need not accept as true “conclusory” allegations,

unwarranted deductions of fact, or unreasonable inferences. Id. Rather, “for a complaint to

survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences

from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss

v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Dismissal of a pro se complaint

for failure to state a claim “is proper only if it is clear that the plaintiff cannot prove any set of

facts in support of the claim that would entitle him to relief.” Watison v. Carter, 668 F.3d 1108,

1112 (9th Cir. 2012).

A. Statute of Limitations

In his First Cause of Action, plaintiff alleges claims against Officer Parnell arising from

the conduct alleged in Episodes One through Five. Defendants move for dismissal of all claims

2 In his Response to defendants’ motion, plaintiff submitted numerous exhibits to support

his claims. See Pl.’s Exs. (ECF Nos. 26-1, 27). Defendants request that their Motion to Dismiss

be converted to a motion for summary judgment in light of plaintiff’s reliance on documents

outside of the pleadings. Defs.’ Reply at 2 & n. 2 (ECF No. 31); see also Fed. R. Civ P. 12(d). I

am not inclined to convert defendants’ motion to one for summary judgement at this stage of the

proceedings. Pro se plaintiffs must receive notice of summary judgment requirements before a

federal court may grant summary judgment, and plaintiff has not been provided with such notice.

See Rand v. Rowland, 154 F.3d 952, 953 (9th Cir. 1998) (affirming that a pro se prisoner is

entitled to fair notice of Rule 56 requirements). With that said, plaintiff’s Complaint references

many of the documents he submitted as exhibits, and I may consider these documents when

resolving defendants’ Motion to Dismiss. E.g., Lee v. City of Los Angeles, 250 F.3d 668, 688

(9th Cir. 2001).

5 - ORDER

arising from Episode One as untimely and barred by the relevant two-year statute of limitations.3

See Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002). I agree that plaintiff’s claims

arising from Episode One are untimely.

As alleged in plaintiff’s Complaint, Officer Parnell’s conduct during Episode One

occurred on June 4, 2017. Compl. ¶¶ 18-12. Plaintiff filed a grievance regarding this episode,

Grievance No. OSP 2017-07-004, which tolled the statute of limitations during the grievance

process. Id. ¶ 24; Pl.’s Exs. (ECF No. 26-1 at 52-54); Soto v. Sweetman, 882 F.3d 865, 872 (9th

Cir. 2018) (“This circuit has, with other circuits, adopted a mandatory tolling provision for

claims subject to the Prison Litigation Reform Act.”); see also Brown v. Valoff, 422 F.3d 926,

942-43 (9th Cir. 2005). On October 27, 2017, plaintiff received the response to his second

grievance appeal, and the grievance process was complete. Compl. ¶ 27; Pl.’s Exs. (ECF No. 26-

1 at 60). On March 5, 2020, plaintiff signed his Complaint, more than two years after the

grievance process concluded.

In response to defendants’ motion, plaintiff maintains that his grievance regarding the

events of June 4, 2017 was “reopened” on March 7, 2019 when Supt. Kelly “promised to

compensate Plaintiff for Defendant Parnell’s theft of Plaintiff’s Property.” Pl.’s Resp. at 5; see

also Compl. ¶ 27. However, Supt. Kelly’s communication of March 7, 2019 did not reference or

reopen Grievance No. OSP 2017-07-004, the grievance associated with the events of June 4,

2017. See Pl.’s Exs. (ECF No. 27 at 10, 52, 64, 74).

3 Defendants initially moved to dismiss claims against Officer Parnell arising from

Episode Two on untimeliness grounds. In their Reply, defendants concede that the grievance

process for this episode tolled the statute of limitations until March 7, 2018, and they withdraw

their motion as to Episode Two. See Defs.’ Reply at 6, n.3.

6 - ORDER

Accordingly, plaintiff’s claims arising from Episode One are time barred, and

defendants’ motion to dismiss is granted with respect to these claims.

B. Failure to State a Claim Upon Which Relief May Be Granted

Plaintiff’s remaining causes of action bring claims against various prison officials based

on their alleged failure to adequately investigate plaintiff’s complaints and take appropriate

disciplinary action against Officer Parnell, and their alleged failure to provide fair compensation

for plaintiff’s confiscated property.

1. Claims Against Captain Cataldo

In his Second Cause of Action, plaintiff alleges claims arising from Capt. Cataldo’s

involvement in Episode Four on December 4, 2018, when Officer Parnell allegedly conducted a

“shake down” search of plaintiff’s cell and falsely accused plaintiff of possessing “escape

devices.” Compl. ¶¶ 49-50, 55. Plaintiff alleges that he had informed Capt. Cataldo that Officer

Parnell was targeting plaintiff and “was aware of Parnell’s retaliatory animus toward” plaintiff

based on his use of the grievance process. Id. ¶ 57. Plaintiff contends that, based on Officer

Parnell’s accusation that plaintiff possessed escape devices, Capt. Cataldo approved plaintiff’s

transfer to segregation “without investigating the matter further.” Id. ¶ 55.

Notably, plaintiff does not allege that Capt. Cataldo personally retaliated against plaintiff

because of his complaints against Officer Parnell or that Capt. Cataldo knew Officer’s Parnell’s

allegations were false. Rather, plaintiff contends that Capt. Cataldo should have investigated

Officer Parnell’s allegations before transferring plaintiff to disciplinary segregation, based on

plaintiff’s history of conflict with Officer Parnell. Construing his allegations liberally, plaintiff

arguably alleges that Capt. Cataldo violated his due process rights by transferring him to

7 - ORDER

disciplinary segregation without adequate evidence and that Capt. Cataldo was negligent in

failing to ascertain the merits of Officer Parnell’s accusations.

However, plaintiff does not allege a protected liberty interest necessary to sustain a

procedural due process claim. A prisoner is entitled to procedural due-process protections only

when a prison-disciplinary action “implicates a protected liberty interest in some ‘unexpected

matter’ or imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.’” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (quoting

Sandin v. Conner, 515 U.S. 472, 484 (1995)). It is well established that a twenty-five day stay in

disciplinary segregation does not implicate a protected liberty interest. See Resnick v. Hayes, 213

F.3d 443, 448-49 (9th Cir. 2000) (finding that a prisoner’s placement in segregated housing

pending a disciplinary hearing did not implicate a protected liberty interest); May v. Baldwin,

109 F.3d 557, 565 (9th Cir. 1997) (holding that placement in disciplinary segregation does not

implicate a liberty interest because it “falls within the terms of confinement ordinarily

contemplated by a sentence”).

Further, to state a civil rights claim under § 1983, plaintiff must allege that 1) a person

acting under color of law 2) deprived him of a federal constitutional right. 42 U.S.C. § 1983;

Stein v. Ryan, 662 F.3d 1114, 1118 (9th Cir. 2011). A claim of negligence is a state law tort

claim and not actionable under § 1983. Granted, under the Oregon Tort Claims Act (OTCA),

plaintiff may file suit against ODOC for claims arising from the negligence of ODOC officers or

employees acting within the scope of their employment or duties. See Or. Rev. Stat. § 30.265(1).

However, as an instrumentality of the State of Oregon, ODOC is immune from suit for damages

in federal court. See Estate of Pond v. Oregon, 322 F. Supp. 2d 1161, 1165 (D. Or. 2004) (”The

8 - ORDER

Oregon Tort Claims Act is a waiver of sovereign immunity but does not waive Eleventh

Amendment immunity.”).

Accordingly, plaintiff fails to state viable claims against Capt. Cataldo, and the claims

against him are dismissed.

2. Claims Against Captain Stephen

In his Third Cause of Action, plaintiff alleges claims against Capt. Stephen based on his

investigation of plaintiff’s complaints against Officer Parnell. Plaintiff alleges that Capt. Stephen

failed to take appropriate action against Officer Parnell, failed to adequately supervise him,

failed to investigate plaintiff’s complaints with “due diligence,” and failed to abide by his

promise that plaintiff would be fairly compensated and obtain a replacement prison job. Compl.

¶¶ 209-217.

Plaintiff alleges no constitutional violation personally committed by Capt. Stephen and

instead seeks to hold Capt. Stephen liable as Officer Parnell’s supervisor. Liability under § 1983

arises upon a showing of personal participation by each defendant, and a supervisor is not liable

for the constitutional violations of employees unless 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). Further, Capt. Stephen’s allegedly negligent investigation into

plaintiff’s complaints and his alleged failure to fulfill alleged promises made to plaintiff

actionable do not rise to the level of constitutional deprivations. Plaintiff’s allegations fail to

state a § 1983 claim against Capt. Stephen, and the claims against him are dismissed.

3. Claims Against Captain Borden

In his Fourth Cause of Action, plaintiff brings claims against Capt. Borden based on his

involvement in obtaining compensation for plaintiff’s confiscated property. Plaintiff alleges that

9 - ORDER

Capt. Borden failed to provide “complete compensation” for his property and engaged in

deception when negotiating the settlement amount plaintiff accepted for his confiscated property.

Compl. ¶¶ 226-237.

Construing his allegations liberally, plaintiff appears to allege that Capt. Borden deprived

him of protected property interest. However, plaintiff cannot pursue a federal constitutional

claim when the state provides an adequate post-deprivation remedy. See Zinermon v. Burch, 494

U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni, 31

F.3d 813, 816 (9th Cir. 1994) (per curiam). Oregon provides an adequate post-deprivation

remedy for the loss of plaintiff’s property through the Oregon Tort Claim Act (OTCA), and he

cannot bring a federal claim seeking compensation for his lost property. Gutierrez v. Williams,

505 Fed. App’x 659, 660 (9th Cir. Jan. 17, 2013). To the extent plaintiff alleges fraud or

deception on the part of Capt. Borden, such claims arise under state law and are not actionable

under § 1983. Thus, plaintiff fails to state a viable claim against Capt. Borden.

4. Claims Against Superintendent Kelly

In his Fifth Cause of Action, plaintiff brings claims against Supt. Kelly based on his

response to plaintiff’s grievance appeals and his failure to respond to plaintiff’s subsequent

communications about fair compensation for his lost property. Plaintiff alleges that Supt. Kelly

was “deliberately indifferent” toward his constitutional rights by “failing to hold Parnell

accountable” and failing to adequately address and resolve plaintiff’s allegations of property

theft. Compl. ¶¶ 245-255.

Plaintiff alleges no personal participation by Supt. Kelly in the alleged deprivation of his

constitutional rights and instead brings claims against Supt. Kelly based solely on his supervisory

authority. As explained above, § 1983 liability does not arise from supervisory status. At most,

10 - ORDER

plaintiff alleges that Supt. Kelly negligently fulfilled his duties, and, as explained above,

negligence cannot sustain a claim under § 1983.

5. Claims Against Investigator Plante, Inspector General Prins, Assistant

Inspectors General McGlathery and Brown, Administrator Persson, and

Assistant Director Gower

In his Sixth and Seventh Causes of Action, plaintiff brings claims against Investigator

Plante, Inspector General Prins, and Assistant Inspectors General McGlathery and Brown.

Plaintiff alleges that these defendants failed to respond to plaintiff’s complaints or refer them to

the Oregon State Police and failed to conduct a “proper” investigation into plaintiff’s complaints

in accordance with ODOC procedures. Compl. ¶¶ 260-64, 268-72. In his Eighth Cause of Action,

plaintiff brings claims against Administrator Persson and Assistant Director Gower based on

their alleged refusal to ensure plaintiff received fair compensation. Id. ¶¶ 276-79.

Plaintiff alleges no personal participation by any of these defendants in the alleged

deprivation of his constitutional rights, and his claims are based solely on their supervisory roles.

Further, these defendants were not constitutionally required to respond to plaintiff’s

communications or refer his complaints for criminal investigation. Finally, non-compliance with

state regulations does not constitute a violation of federal law. Accordingly, plaintiff fails to state

§ 1983 claims against Investigator Plante, Inspector General Prins, Assistant Inspectors General

McGlathery and Brown, Administrator Persson, and Assistant Director Gower.

6. Claims Against Grievance Coordinator Kidwell

Finally, in his Ninth Cause of Action, plaintiff alleges claims against Grievance

Coordinator Kidwell based on the alleged failure to follow ODOC procedures for handling

grievances and the failure to review plaintiff’s allegations against Officer Parnell during the

grievance process. Compl. ¶¶ 284-89.

11 - ORDER

It is well established that prisoners have no “constitutional entitlement to a specific prison

grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Thus, plaintiff’s

allegations fail to state a § 1983 claim against Kidwell.

CONCLUSION

Defendants’ Motion to Dismiss (ECF No. 18) is GRANTED. Plaintiff’s claims against

Officer Parnell arising from Episode One are DISMISSED as untimely. Plaintiff’s claims against

Kelly, Cataldo, Stephen, Plante, Prins, McGlathery, Brown, Borden, Kidwell, Persson, and

Gower are DISMISSED for failure to state a claim, and these defendants are terminated from this

action.

IT IS SO ORDERED.

DATED this 9th day of July, 2021.

s/ Michael J. McShane

MICHAEL J. MCSHANE

United States District Judge

12 - ORDER