Evans v. Gower

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PENDLETON DIVISION

MICHAEL JAMES EVANS,

Case No. 2:17-cv-01162-MK

Plaintiff, OPINION AND

ORDER

v.

MICHAEL F. GOWER, Asst. Dir.;

BRIDGETTE AMSBERRY,

Superintendent; ELISABETH FAIRLEY;

HENRY BECERRIL; SARA

BEVINGTON; KELLY RATHS; LINDA

“SCHUTT” SIMON; KAYCIE

THOMPSON; SERENA DEACON;

LARRY LYTLE; SHERRY ILES; GERRY

STEPHENS; DUSTY HUNTER; STEVE

BOSTON; EDDIE LOPEZ; JAY

HORNING; JAMES DEACON; and

STEVE SURBER,

Defendants.

_________________________________________

KASUBHAI, United States Magistrate Judge:

Plaintiff Michael James Evans (“Plaintiff”) asserts six causes of action under 42 U.S.C. §

1983 against Defendants Gower, Amsberry, Fairley, Becerril, Bevington, Raths, Simon,

Thompson, Deacon, Lytle, Iles, Stephens, Hunter, Boston, Lopez, Horning, Deacon, and Surber

(collectively, “Defendants”): (1) a First Amendment claim against Defendants Amsberry,

Fairley, Lytle, and Boston; (2) a First Amendment claim and Sixth Amendment claim against

Defendants Thompson, Iles, Amsberry, and Simon; (3) a First Amendment claim and Fourteenth

Amendment claim against Defendants Thompson, Iles, Amsberry, Stephens, Raths, and Simon;

(4) a First Amendment claim, Fourth Amendment claim, and Fourteenth Amendment claim

against Defendants Thompson, Iles, Amsberry, Bevington, Deacon, Becerril, Gower, and Raths;

(5) a First Amendment claim, Fourth Amendment claim, and Fourteenth Amendment claim

against Defendant Surber; and (6) a First Amendment claim against Defendants Lopez, Horning,

and Deacon. Fifth Am. Compl., ECF No. 125 (“FAC”).

Plaintiff moves for summary judgment on all of his claims. Pl.’s Mot. Summ. J., ECF No.

150. Defendants also move for summary judgment on all of Plaintiff’s claims. Defs.’ Mot.

Summ. J., ECF No. 185 (“Defs.’ Mot.”). All parties have consented to jurisdiction by a U.S.

Magistrate Judge. See ECF No. 83. For the reasons that follow, Plaintiff’s motion is DENIED

and Defendants’ motion is GRANTED in part and DENIED in part.

FACTS

Plaintiff is an adult in custody (“AIC”) of the Oregon Department of Corrections

(“ODOC”) at Two Rivers Correctional Institution (“TRCI”). FAC ¶ 1, ECF No. 125.

I. First Claim

On May 18, 2016, Plaintiff asked for the law library sign-up sheet during a two-way line

movement. Plaintiff’s Declaration (“Pl.’s Decl.”) ¶ 2, ECF No. 151. Defendant Fairley, the

correctional officer in charge, told Plaintiff to wait until the line movement was over. Id. ¶ 4–5.

Plaintiff claims he waited until the line movement was over and asked for the sign-up sheet

again. Id. Defendant Fairley then issued Plaintiff a “cell-in” conduct order. Id. ¶ 5.

Plaintiff filed a grievance based on the May 18, 2016 conduct order. Decl. of Arnell

Eynon, Ex. 4 at 10, ECF No. 186 (“Eynon Decl.”). Defendant Lytle responded to Plaintiff’s

grievance that Defendant Fairley’s conduct was within the scope of her authority. Id. at 7–8.

When Plaintiff filed an appeal, the assistant superintendent responded that, during two-way line

movements, “staff is required to be as observant as possible to the complete unit to maintain a

safe and secure environment.” Id. at 5–6. Accordingly, a staff member “has the discretion to

either assist [an] inmate during this time or have [the inmate] wait until the line movement is

completed.” Id. If an AIC “continue[s] to distract the staff, progressive discipline may be used.”

Id. The assistant superintendent concluded that staff had “performed their duties and

responsibilities appropriately.” Id.

Plaintiff appealed again. Id. at 2, 4. The reviewing administrator concurred with the

assistant superintendent’s response and explained that “providing a safe and secure environment

for all” requires “slowing down some activities to ensure [staff members] are meeting these

goals.” Id. at 1. Because “[t]wo-way line movements are very busy and active[,]” the

administrator explained that each staff member has discretion to assist an AIC during the line

movement or have the AIC wait until the line movement is complete. Id. The administrator

concluded, based on “the information that has been provided, it is clear that the staff at TRCI

conducted their duties in a professional manner[.]” Id.

In October 2016, Plaintiff filed an internal discrimination complaint against Defendant

Fairley. Eynon Decl., Ex. 11 at 5, ECF No. 186. Plaintiff alleged Defendant Fairley wrongfully

celled Plaintiff in because he ate a cookie offered by another inmate. Id. Plaintiff also alleged

Defendant Fairley only issued cell-in conduct orders to white AICs for requesting the law library

sign-up sheet. Id. In response, Defendant Amsberry, TRCI Superintendent, wrote that the alleged

cookie issue could not be substantiated. Id. at 3. Defendant Amsberry also wrote that the

investigation did not support Plaintiff’s allegations that cell-in orders were limited to white AICs.

Id. at 4. Finally, Defendant Amsberry acknowledged that the Housing Unit Guidelines allow for

sign-ups during two-way line movements. Id. However, Defendant Amsberry noted that the sign-

up times may be slightly altered due to safety and security concerns and explained that sign-ups

“are also permitted throughout most of the dayroom hours each day, providing an opportunity for

all inmates to sign up for the law library.” Id.

Plaintiff appealed Defendant Amsberry’s decision to the Inmate Discrimination Review

Committee. Id. at 2. The inspector general responded that the Committee had considered the

appeal and found no reason to change the original decision. Id. at 1.

II. Second Claim

Plaintiff alleges that several items of legal mail were opened outside his presence,

specifically: (1) two items from Noel Grefenson dated March 3, 2015; (2) one item from Eric

Beach dated August 24, 2015; (3) two items from Kasey Curtis dated November 30, 2016; (4)

one item from Kasey Curtis dated March 10, 2016; and (5) one item from Kasey Curtis dated

April 20, 2017. FAC ¶ 37, ECF No. 125.

ODOC regulation 291-131-0030 requires legal mail to be clearly marked with the words

“LEGAL MAIL.”1

1 “(a) To qualify for special processing, mail which otherwise qualifies as legal or official mail under OAR 291-131-

010(14) or (18) must have affixed to the addressee side of the envelope or parcel the words ‘LEGAL MAIL’ or

‘OFFICIAL MAIL’, as appropriate. The ‘LEGAL MAIL’ or ‘OFFICIAL MAIL’ designation should be set apart

from both the return address and the mailing address, and should be of sufficient size, to permit easy recognition by

A. Mail from Noel Grefenson

On April 1, 2015, Plaintiff filed a grievance regarding the opening of two pieces of mail

from attorney Noel Grefenson. Eynon Decl., Ex. 1 at 10, ECF No. 186. Plaintiff attached one of

the items, which was stamped “Legal Correspondence.” Id. at 11. The envelope indicated that the

mail had been opened by mailroom staff because it “[did] not meet DOC requirements as ‘Legal

Mail’ 291-131-0030(a).” Id. The grievance was denied based on ODOC regulation 291-131-

0030. Id. at 9. Plaintiff appealed the denial, arguing the mail should not have been opened

because “correspondence” is synonymous with “mail.” Id. at 6. The denial was sustained on

administrative appeal, with the final appeal response being issued on June 19, 2015. Id. at 1, 7.

B. Mail from Eric Beach

On August 24, 2015, Plaintiff filed a grievance regarding the opening of mail from

attorney Eric Beach. Eynon Decl, Ex. 2 at 6, ECF No. 186. The mail was labeled as “Legal

Mail.” Id. at 7. ODOC initially determined that the mailroom had no record of opening the mail,

id. at 5, and Plaintiff appealed, id. at 4. After investigating, ODOC determined the mail had been

opened accidentally by staff in the mailroom. Id. at 1, 3. The administrator acknowledged the

error and wrote, “staff did not read the contents, they only scanned the mail for contraband such

as unauthorized attachments and enclosures.” Id. at 1. The administrator also added that

mailroom staff received “additional training on the appropriate application of the rule regarding

legal mail processing in order to address the issue and prevent any further occurrences of this

nature.” Id.

C. Mail from Kasey Curtis

facility mailroom employees. (b) Mail which otherwise qualifies as legal and official mail under OAR 291-131-

010(14) or (18) but lacks the proper designation shall be processed as ordinary mail (i.e., shall be subject to

inspection; e.g., opening, examination, reading or photocopying) outside the inmate’s presence.” Or. Admin. R. 291-

131-0030(1) (2011); see also Eynon Decl. Ex. 1 at 8–9, ECF No. 186.

In November 2016, Plaintiff filed a grievance regarding the opening of mail from

attorney Kasey Curtis. Eynon Decl., Ex. 5 at 2, ECF No. 186. The grievance was denied because

the item was not marked “Legal Mail.” Id. at 1. There is no indication Plaintiff appealed the

grievance.

In March 2017, Plaintiff filed grievance regarding the opening of different mail from

attorney Kasey Curtis. Eynon Decl., Ex. 7 at 8, ECF No. 186. The grievance was denied through

all appeals because the item was not marked “Legal Mail.” Id. at 3, 6.

In April 2017, Plaintiff filed a grievance regarding the opening of different mail from

attorney Kasey Curtis. Eynon Decl., Ex. 9 at 6, ECF No. 186. The grievance was denied through

all appeals because the item was not marked “Legal Mail.” Id. at 1, 3, 5.

Plaintiff alleges all letters from Kasey Curtis were marked as “Attorney-Client

Communication.” Pl.’s Suppl. Decl. ¶ 13, ECF No. 153-1.

III. Third Claim

Plaintiff alleges Defendants delayed his mail or failed to provide timely notice regarding

withheld mail. See FAC ¶¶ 44–61, ECF No. 125.

A. Documents

A power of attorney document from Plaintiff’s mother arrived at ODOC on November

18, 2015, which Plaintiff received on or about November 24, 2015. Pl.’s Decl. ¶ 35, ECF No.

151. There is no indication Plaintiff filed a grievance regarding this document.

Three envelopes with documents from Plaintiff’s fiancée arrived at ODOC on November

10, 2015, which Plaintiff received on or about December 1, 2015. Pl.’s Decl., Ex. 21, 23, ECF

No. 151-2. There is no indication Plaintiff filed a grievance regarding these documents.

Plaintiff alleges that he never received a Christmas card and investment papers sent to

him. FAC ¶¶ 53–54, ECF No. 125. On December 22, 2016, Plaintiff inquired about investment

papers and “other mail” that he claimed were mailed to him on December 12, 2016. Thompson

Decl., Ex. 4 at 1, ECF No. 191. Defendant Thompson explained that the postal service was

experiencing delays due to the holiday season and road closures. Id. Plaintiff later inquired again,

and Defendant Deacon responded that ODOC did not “have anything in the mailroom” matching

Plaintiff’s description. Pl.’s Decl., Ex. 25, ECF No. 151. Plaintiff offers no evidence that the

items were ever received by ODOC.

B. Books

A book called Born into the Children of God arrived at ODOC seven days before

Plaintiff received it on February 16, 2016. Pl.’s Decl. ¶ 37. ECF No. 151. There is no indication

Plaintiff filed a grievance regarding this book.

A book called Love Affair arrived at ODOC and had been rejected. Declaration of Kaycie

Thompson, Ex. 2 at 4, ECF No. 191 (“Thompson Decl.”). On or about March 2016, Plaintiff

received a publication violation notice indicating that the book was rejected for containing

sexually explicit material. Id. Plaintiff requested administrative review of the rejection, and the

violation was affirmed. Id. at 1, 2. There is no indication Plaintiff filed a grievance regarding the

lack of notification, as opposed to his grieving the substance of the rejection.

A book called Natural Young Beauties arrived at ODOC in January 2011 and was

rejected. Pl.’s Decl., Ex. 28 at 25–27, ECF No. 151. On or about March 2017, Plaintiff received a

publication violation notice. Thompson Decl., Ex. 5, ECF No. 191. Plaintiff filed a grievance

alleging he did not receive proper notice. Eynon Decl., Ex. 8 at 6, ECF No. 186. Defendant

Amsberry noted that Plaintiff received a review of the book on March 20, 2017, and explained

that “[d]epending on the amount of reviews and workload that comes into the mailroom, the

processing time can be delayed.” Id. at 3. Plaintiff’s grievance was denied at all stages of his

appeal. Id. at 1.

IV. Fourth Claim

Plaintiff alleges ODOC wrongfully rejected several of Plaintiff’s mail items. FAC ¶ 71,

ECF No. 125.

A. Love Affair

On March 28, 2016, Plaintiff received a publication violation notice for Love Affair.

Thompson Decl., Ex. 2 at 4, ECF No. 191. The cover of the book describes it as “a memoir of a

forbidden father-daughter union.” Id. at 5. The book was rejected because it contained sexually

explicit material, specifically: (1) “Portrayal of actual simulated acts or threatened acts of force

or violence in a sexual context, including but not limited to forcible intercourse (rape) or acts of

sadomasochism emphasizing the infliction of pain;” and (2) “Portrayal of actual or simulated

sexual acts or behaviors in which one of the participants is a minor, or appears to be under the

age of 18.” Id. at 4. Plaintiff requested administrative review, id. at 2, and the violation was

affirmed, id. at 1. At the time of the review, Love Affair was already on ODOC’s list of rejected

publications. Id. at 1, 18.

B. Natural Young Beauties

On March 1, 2017, Plaintiff received a mail notice for a rejected book, Natural Young

Beauties, on the ground that it contained “[s]exually explicit material that by its nature or content

poses a threat or is detrimental to the security, good order or discipline of the facility, inmate

rehabilitation, or facilitates criminal activity.” Thompson Decl., Ex. 5, ECF No. 191. Plaintiff

sought administrative review of the rejection, and Defendant Simon affirmed the rejection.

Eynon Decl., Ex. 8 at 3, ECF No. 186. Plaintiff then sent a communication that was forwarded to

Defendant Raths. Eynon Decl., Ex. 6 at 4, ECF No. 186.

In April 2017, Defendant Raths explained to Plaintiff that Natural Young Beauties was on

the rejected publication list due to: (1) “Portrayal of actual or simulated sexual acts or behaviors

between human beings, including, but not limited to, intercourse, sodomy, fellatio, cunnilingus,

or masturbation;” (2) “Portrayal of actual or simulated penetration of the vagina or anus, or

contact between the mouth and the breast, genitals, or anus;” (3) “Portrayal of actual or

simulated stimulation of the breast, genitals, or anus;” (4) “Portrayal of actual or simulated acts

or threatened acts of force or violence in a sexual context, including but not limited to forcible

intercourse (rape) or acts of sadomasochism emphasizing the infliction of pain;” and (5)

“Portrayal of actual or simulated sexual acts or behaviors in which one of the participants is a

minor, or appears to be under the age of 18.” Id.

C. Correspondence

Plaintiff alleges four letters from his fiancée were rejected: one in February 2016; two in

August 2016; and one in December 2016. FAC ¶ 71, ECF No. 125.

On February 18, 2016, Plaintiff received a notice of mail violation regarding a letter from

Plaintiff’s fiancée. Thompson Decl., Ex. 1 at 2–3, ECF No. 191. The letter was rejected for being

sexually explicit, specifically for: (1) “Portrayal of actual or simulated sexual acts of behaviors

between human beings, including, but not limited to, intercourse, sodomy, fellatio, cunnilingus,

or masturbation;” (2) “Portrayal of actual or simulated penetration of the vagina or anus, or

contact between the mouth and the breast, genitals, or anus;” and (3) “Portrayal of actual or

simulated stimulation of the breast, genitals, or anus.” Id. at 2.

On August 9, 2016, Plaintiff received another notice of mail violation regarding a

sexually explicit letter from his fiancée. Pl.’s Decl., Ex. 40 at 4–5, ECF No. 151. On August 25,

2016, Plaintiff received another notice of mail violation regarding a sexually explicit letter from

his fiancée. Id. at 6–7. In September 2016, ODOC conducted an administrative review regarding

a sexually explicit letter and affirmed the violation notice. Id. at 6.

On December 16, 2016, Plaintiff received another notice of mail violation regarding a

sexually explicit letter from his fiancée. Thompson Decl., Ex. 3, ECF No. 191. Plaintiff sought

administrative review of the letter, and the violation was affirmed. Pl.’s Decl., Ex. 40 at 9, Ex. 47

at 7, ECF No. 151-2.

V. Fifth Claim

On December 10, 2017, Defendant Surber found a book titled The Ten Thousand during a

routine search of Plaintiff’s cell. Decl. of Jeremy Nofziger, Ex. 2 at 1, ECF No. 190 (“Nofziger

Decl.”). Defendant Surber confiscated the book because Plaintiff had removed the mailroom

identification label from the book and written his own name on the mailroom stamp. Id. at 1, 4–

5. Plaintiff did not have a receipt for the book. Id. at 4. Plaintiff maintains that he received the

book in 2007 before the implementation of the “mailroom stickers” in 2016. Pl.’s Decl. ¶ 69,

ECF No. 151. Defendant Surber offered Plaintiff an opportunity to voluntarily destroy the book,

but Plaintiff refused and threatened to sue Defendant Surber. Nofziger Decl., Ex. 2 at 4, ECF No.

190.

Defendant Surber wrote a misconduct report charging Plaintiff with violations of

ODOC’s Property II and Contraband II rules. Id. While the hearing officer dismissed the

Contraband II charge, the hearing officer found that Plaintiff violated the Property II rule by

“destroying, abusing, altering, damaging, defacing, misusing, tampering with, or wasting

materials or property, or failing to properly protect or produce property issued in a timely

manner.” Id. at 1. Plaintiff was sanctioned with three days loss of privileges, a fifteen-dollar fine,

and loss of the book. Id. at 1–2.

On December 10, 2017, Plaintiff filed a grievance regarding Defendants’ confiscation of

his book. Eynon Decl., Ex. 10 at 2, ECF No. 186. The grievance was denied on the grounds that

Plaintiff had not established a lack of administrative directive or operational procedure, the

misapplication of one, or unprofessional conduct or oversight by staff. Id. at 1. The denial cited

the rule requiring AICs to retain receipts and not alter personal property. Id. The denial also

noted that AICs are not allowed to grieve misconduct reports under ODOC regulation 291-109-

0140. Id. There is no indication that Plaintiff appealed this denial.

VI. Sixth Claim

On January 17, 2017, Plaintiff took a shower between the hours of 9 and 10 in the

morning. Nofziger Decl., Ex. 1 at 13, ECF No. 190; Pl.’s Decl. ¶ 82, ECF No. 151. At that time,

Plaintiff had a skin lesion on his head that occasionally bled, and may have bled while he

showered. Id. ¶ 91. Shortly after Plaintiff’s shower, Defendant Lopez observed what he believed

to be blood in the shower. Nofziger Decl., Ex. 1 at 11, ECF No. 190. Plaintiff denies that it was

his blood, suggesting instead it may have been the soap he used. Pl.’s Decl. ¶¶ 84–85, ECF No.

151.

After his shower, Defendant Lopez approached Plaintiff while Plaintiff was in the law

library and asked Plaintiff about the brown substance in the shower. See Nofziger Decl., Ex. 1 at

9, 11, ECF No. 190. Plaintiff claims Defendant Lopez initially suggested it was feces, but then

noticed dried blood on Plaintiff’s head from his skin lesion and concluded it was blood. Pl.’s

Decl. ¶¶ 86–91, ECF No. 151. Defendant Lopez then issued a conduct order to Plaintiff for

leaving blood in the shower and sanctioned Plaintiff with a 24-hour cell-in order. Nofziger Decl.,

Ex. 1 at 11, ECF No. 190. Defendant Lopez noted the time of the incident as 10:30 a.m. Id.

On June 19, 2017, Plaintiff left his cell at 10:00 a.m., 30 minutes before his 24-hour cell-

in order expired. Id. at 7. Plaintiff alleges he thought the sanction ended at or before 10 a.m.,

because his shower had occurred before 10 a.m. the previous day. Pl.’s Decl. ¶¶ 101, 103, ECF

No. 151. Defendant Horning observed Plaintiff leaving his cell before 10:30 a.m. and wrote a

misconduct report, charging Plaintiff with Disobedience of an Order I and Unauthorized Area I.

Nofziger Decl., Ex. 1 at 6, ECF No. 190. Defendant Deacon found violations of Unauthorized

Area I and a reduced charge of Disobedience of an Order II. Id. at 3. Plaintiff was sanctioned

with ten days segregation, ten subsequent days loss of privilege, and a fine that was suspended

pending no major rule violations. Id. at 4.

STANDARD OF REVIEW

Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute

as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs.,

Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is

such that a reasonable jury could return a verdict for the nonmoving party determines the

authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the

absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings

and identify facts which show a genuine issue for trial. Id. at 324.

Special rules of construction apply when evaluating a summary judgment motion: (1) all

reasonable doubts as to the existence of genuine issues of material fact should be resolved

against the moving party; and (2) all inferences to be drawn from the underlying facts must be

viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.

DISCUSSION

Plaintiff moves for summary judgment on all of his claims. Pl.’s Mot., ECF No. 150.

Defendants also move for summary judgment on all of Plaintiff’s claims. Defs.’ Mot., ECF No.

185. For the reasons that follow, Plaintiff’s motion is DENIED and Defendants’ motion is

GRANTED in part and DENIED in part.

I. First Claim

Defendants argue summary judgment is appropriate as to Plaintiff’s First Amendment

claim because: (1) Plaintiff cannot show any action was taken because of protected conduct; (2)

the conduct order had a legitimate correctional goal; and (3) even if there was some basis for the

claim against Defendant Fairley, there is no basis for Plaintiff’s claim against Defendants Lytle

and Boston. Defs.’ Mot. 23–28, ECF No. 185. Plaintiff argues Defendant Fairley took adverse

action against Plaintiff because of Plaintiff’s protected conduct, Defendant Fairley’s action had a

chilling effect, and Defendant Fairley’s action did not advance a legitimate correctional goal.

Pl.’s Br. 3–10, ECF No. 151-1. Plaintiff also argues that Defendants Lytle and Boston were

deliberately indifferent to Defendant Fairley’s retaliatory conduct. Pl.’s Suppl. Decl. ¶ 12, ECF

No. 153-1.

To state a viable claim of First Amendment retaliation, a plaintiff must allege five basic

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)

(footnote omitted).

To satisfy the causation requirement, a plaintiff “must allege a causal connection between

the adverse action and the protected conduct.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.

2012). “To show the presence of this element on a motion for summary judgment, [a plaintiff]

need only ‘put forth evidence of retaliatory motive, that, taken in the light most favorable to him,

presents a genuine issue of material fact as to [a defendant’s] intent[.]” Brodheim, 584 F.3d at

1271 (citation omitted). Mere speculation that a defendant acted out of retaliation is not

sufficient. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). However, “timing can properly be

considered as circumstantial evidence of retaliatory intent.” Pratt v. Rowland, 65 F.3d 802, 808

(9th Cir. 1995).

To sufficiently allege that prison authorities’ retaliatory action did not advance a

legitimate correctional goal, a plaintiff must show, “in addition to a retaliatory motive, that the

defendant’s actions were arbitrary and capricious, or that they were unnecessary to the

maintenance of order in the institution.” Watison, 668 F.3d at 1114 (internal quotations and

citations omitted). “The plaintiff bears the burden of pleading and proving the absence of

legitimate correctional goals for the conduct of which he complains.” Pratt, 65 F.3d at 806.

To determine whether an adverse action is reasonably related to legitimate penological

interests, the Supreme Court established the following four-factor test:

First and foremost, “there must be a ‘valid, rational connection’

between the prison regulation and the legitimate [and neutral]

governmental interest put forward to justify it.” If the connection

between the regulation and the asserted goal is “arbitrary or

irrational,” then the regulation fails, irrespective of whether the

other factors tilt in its favor. In addition, courts should consider

three other factors: the existence of “alternative means of

exercising the right” available to inmates; “the impact

accommodation of the asserted constitutional right will have on

guards and other inmates, and on the allocation of prison resources

generally”; and “the absence of ready alternatives” available to the

prison for achieving the governmental objectives.

Shaw v. Murphy, 532 U.S. 223, 230–31 (2001) (quoting Turner v. Safley, 482 U.S. 78, 107

(1987)) (bracketing in original; internal citations omitted).

A defendant “may not defeat a retaliation claim on summary judgment simply by

articulating a general justification for a neutral process, when there is a genuine issue of material

fact as to whether the action was taken in retaliation for the exercise of a constitutional right.”

Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003). If prison officials abuse what is otherwise a

legitimate correctional goal “as a cover or a ruse to silence and punish [a plaintiff] because he

filed grievances, they cannot assert that [their actions] served a valid penological purpose[.]” Id.

Here, Plaintiff has failed to offer any evidence that rises above mere speculation to show

Defendants acted out of a retaliatory motive. See Wood, 753 F.3d at 899. There is no indication

that Defendant Fairley issued Plaintiff a conduct order because Plaintiff wished to use the law

library. All evidence provided to the Court indicates that Defendant Fairley issued Plaintiff a

conduct order because he made a request during a two-way line movement, not for the substance

of his request. Plaintiff has also failed to offer any evidence showing the absence of legitimate

correctional goals. See Pratt, 65 F.3d at 806. Defendants repeatedly informed Plaintiff that, to

maintain a safe and secure environment, staff have discretion regarding whether to assist inmates

during a two-way line movement. See, e.g., Eynon Decl., Ex. 4 at 10, ECF No. 186. Defendants

have met their burden of establishing the absence of a genuine issue of material fact. Viewing

these facts in the light most favorable to Plaintiff and drawing all reasonable inferences in his

favor, no reasonable jury could conclude that Defendants acted out of retaliatory motive for

Plaintiff’s protected conduct or that Defendants had no legitimate correctional goals for their

actions. As such, Defendants’ motion is granted as to Plaintiff’s First Claim.

II. Second Claim

Defendants argue summary judgment is appropriate as to Plaintiff’s First Amendment

and Sixth Amendment claims because: (1) the Sixth Amendment does not apply to civil counsel;

(2) the statute of limitations bars claims from March 2015; (3) Plaintiff has failed to exhaust his

administrative remedies for at least one letter; (4) all but one of the letters were not marked as

“Legal Mail” and therefore did not require treatment as legal mail; (5) the August 2015 mail

opening incident was an isolated incident; and (6) there is no evidence of personal participation

in the alleged violations by named Defendants in the opening of mail from attorney Beach.

Defs.’ Mot. 23–33, ECF No. 185. Plaintiff argues Defendants improperly opened and read his

mail outside of his presence. Pl.’s Br. 10–14, ECF No. 151-1. Plaintiff also argues ODOC’s

“Legal Mail” rule is unconstitutional on its face. Pl.’s Suppl. Decl. ¶ 24, ECF 153-1.

A. First Amendment

Generally, prisoners have “a First Amendment right to send and receive mail.” Witherow

v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). “Jails and prisons may impose certain

restrictions on incoming mail, so long as the restrictions are ‘reasonably related to legitimate

penological interests.’” Mangiaracina v. Penzone, 849 F.3d 1191, 1197 (9th Cir. 2017) (quoting

Safley, 482 U.S. at 89). The Ninth Circuit “recognize[s] that prisoners have a protected First

Amendment interest in having properly marked legal mail opened only in their presence.” Hayes

v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). However, a plaintiff must “clarify who

sent the mail or whether it was properly marked as ‘legal mail.’” Id.

ODOC regulation 291-131-0030 requires legal mail to be clearly marked with the words

“LEGAL MAIL”:

(a) To qualify for special processing, mail which otherwise

qualifies as legal or official mail under OAR 291-131-010(14) or

(18) must have affixed to the addressee side of the envelope or

parcel the words “LEGAL MAIL” or “OFFICIAL MAIL”, as

appropriate. The “LEGAL MAIL” or “OFFICIAL MAIL”

designation should be set apart from both the return address and

the mailing address, and should be of sufficient size, to permit easy

recognition by facility mailroom employees. (b) Mail which

otherwise qualifies as legal and official mail under OAR 291-131-

010(14) or (18) but lacks the proper designation shall be processed

as ordinary mail (i.e., shall be subject to inspection; e.g., opening,

examination, reading or photocopying) outside the inmate’s

presence.

Or. Admin. R. 291-131-0030(1); see also Eynon Decl., Ex. 1 at 8–9, ECF No. 186.

1. Mail not Marked “Legal Mail”

The question is whether the letters at issue were “properly marked” legal mail such that

Plaintiff had a protected First Amendment interest in having these letters opened only in his

presence. See Hayes, 849 F.3d at 1211. Since Hayes, the Ninth Circuit has left open the question

of what exactly constitutes “properly marked” legal mail. See generally Merrick v. Linderman,

858 Fed. App’x 250, 252 (9th Cir. Sept. 13, 2021) (finding summary judgment proper where

“[n]othing on the face of the letter, which was returned from the Post Office without the original

envelope, indicated that the letter was legal mail or that the intended recipient was a lawyer”).

The mail items from attorney Noel Grefenson were marked as “Legal Correspondence.”

Eynon Decl., Ex. 1 at 11, ECF No. 186. The mail items from attorney Kasey Curtis were marked

as “Attorney-Client Communication.” Pl.’s Suppl. Decl. ¶ 13, ECF No. 153-1. A reasonable jury

could conclude that letters marked with words and phrases such as “legal” and “attorney-client”

were sufficient to put Defendants on notice that Plaintiff’s mail was, in fact, properly marked

legal mail that complied with applicable regulations. Because a genuine issue of material fact

exists, neither party has met their burden for summary judgment.

Defendants nevertheless argue that they are entitled to qualified immunity. Defs.’ Mot.

51–52, ECF No. 185. Qualified immunity “protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (citation and internal quotations omitted). The purpose of qualified immunity is to

“strike a balance between the competing ‘need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.’” Mattos v. Agarano, 661 F.3d 433, 440 (9th

Cir. 2011) (quoting Pearson, 555 U.S. at 231). Qualified immunity “applies regardless of

whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based

on mixed questions of law and fact.” Pearson, 555 U.S. at 231 (citation and internal quotations

omitted).

“Determining whether officials are owed qualified immunity involves two inquiries: (1)

whether, taken in the light most favorable to the party asserting the injury, the facts alleged show

the official’s conduct violated a constitutional right; and (2) if so, whether the right was clearly

established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th

Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts may exercise their

discretion in deciding which prong to address first “as they are in the best position to determine

the order of decisionmaking that will best facilitate the fair and efficient disposition of each

case.” Pearson, 555 U.S. at 242.

Whether an official is entitled to qualified immunity “generally turns on the objective

legal reasonableness of the action assessed in light of the legal rules that were clearly established

at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citations and internal

quotations omitted). “For a right to be ‘clearly established,’ existing ‘precedent must have placed

the statutory or constitutional question beyond debate,’ such that ‘every’ reasonable official, not

just ‘a’ reasonable official, would have understood that he was violating a clearly established

right.” Thompson v. Rahr, 885 F.3d 582, 587 (9th Cir. 2018) (quoting Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011)) (emphasis in original).

In 2017, the Ninth Circuit determined that prisoners have a protected First Amendment

interest in having properly marked legal mail opened only in their presence. Hayes, 849 F.3d at

1211. All but two incidents in this case occurred before the Hayes decision. As such, Defendants

are entitled to qualified immunity as to all mail items from attorneys Grefenson and Curtis

received before March 3, 2017.

However, qualified immunity is not appropriate as to the mail from attorney Curtis that

Plaintiff received on March 10, 2017, see Eynon Decl., Ex. 7 at 8, ECF No. 186, or the mail from

attorney Curtis that Plaintiff received on April 25, 2017, Eynon Decl., Ex. 9 at 6, ECF No. 186.

After Hayes, every reasonable official would have understood they were violating a clearly

established right by opening Plaintiff’s legal mail outside of his presence. As such, Defendants

are not entitled to qualified immunity regarding the two letters from attorney Curtis that Plaintiff

received after March 3, 2017.

2. Mail Marked “Legal Mail”

The mail from attorney Eric Beach was properly labeled as “Legal Mail” as required by

OAR 291-131-0030(1). Eynon Decl, Ex. 2 at 7, ECF No. 186. The mail was accidentally opened

by staff in the mailroom, who “did not read the contents, [but] only scanned the mail for

contraband such as unauthorized attachments and enclosures.” Id. at 1–3. Mailroom staff

subsequently received “additional training on the appropriate application of the rule regarding

legal mail processing in order to address the issue and prevent any further occurrences of this

nature.” Id. Given that a genuine issue of material fact exists as to two letters Plaintiff received

from attorney Curtis after March 3, 2017, Defendants’ arguments that the opening of mail from

attorney Beach was an isolated incident are unavailing. As such, summary judgment is

inappropriate as to the mail Plaintiff received from attorney Beach.

In sum, Defendants’ motion is granted as to the First Amendment claim contained in

Plaintiff’s Second Claim concerning mail received before March 3, 2017. However, Defendants’

motion and Plaintiff’s motion are denied as to the First Amendment claim contained in Plaintiff’s

Second Claim concerning mail from attorney Curtis that Plaintiff received on or after March 3,

2017, and mail from attorney Beach.

B. Sixth Amendment

The Sixth Amendment guarantees the “Assistance of Counsel” in “all criminal

prosecutions.” U.S. Const. amend. VI. However, “the Sixth Amendment does not govern civil

cases.” Turner v. Rogers, 564 U.S. 431, 441 (2011); see also Wolff v. McDonnell, 418 U.S. 539,

576 (1974) (the Sixth Amendment’s “reach is only to protect the attorney-client relationship

from intrusion in the criminal setting”). All mail at issue is alleged to have been related to civil

matters. FAC ¶ 37, ECF No. 125. As such, Defendants’ motion is granted as to the Sixth

Amendment claim contained in Plaintiff’s Second Claim.

III. Third Claim

Defendants argue summary judgment is appropriate as to Plaintiff’s First Amendment

and Fourteenth Amendment claims because: (1) Plaintiff failed to exhaust his administrative

remedies as to all items except Natural Young Beauties; (2) to the extent any delays occurred,

those delays were reasonable; (3) Plaintiff’s Fourteenth Amendment claim fails because Plaintiff

received notice that two books were withheld; and (4) there is no evidence of personal

participation in the alleged violations by named Defendants. Defs.’ Mot. 33–38, ECF No. 185.

Plaintiff argues that his letters and books were withheld without adequate notice. Pl.’s Suppl.

Decl. ¶ 27, ECF No. 153-1. Plaintiff also argues Defendants’ actions did not relate to a legitimate

penological interest. Id. at ¶ 61; Pl.’s Br. 17, ECF No. 151-1.

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). Plaintiff must show that each named defendant,

through their own individual actions, violated Plaintiff’s constitutional rights. See Ashcroft v.

Iqbal, 556 U.S. 662, 676 (2009). 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).

“Supervisory prison officials may be liable under § 1983 if they were ‘personally involved in the

constitutional deprivation or a sufficient causal connection exists between [their] unlawful

conduct and the constitutional violation.’” Rico v. Ducart, 980 F.3d 1292, 1303 (9th Cir. 2020)

(quoting Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1085 (9th Cir. 2013)).

“This causal connection can be established by ‘knowingly refusing to terminate a series of acts

by others, which the supervisor[s] knew or should have known would cause others to inflict a

constitutional injury.’” Id. (quoting Starr v. Baca, 652 F.3d 1202, 1207–08 (9th Cir. 2011))

While Plaintiff names Defendants Thompson, Iles, Amsberry, Stephens, Raths, and

Simon for this claim, Plaintiff presents no evidence implicating their personal involvement in

causing any delays in Plaintiff’s mail or notice of violations. Additionally, to the extent

Defendants Thompson, Iles, and Simon are included due to their roles as mailroom supervisors,

Plaintiff presents no evidence they “participated in or directed the violations, or knew of the

violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045; see also FAC ¶ 59, ECF

No. 125. As such, Defendants’ motion is granted as to Plaintiff’s Third Claim.

IV. Fourth Claim

Defendants argue summary judgment is appropriate as to Plaintiff’s First Amendment,

Fourth Amendment, and Fourteenth Amendment claims because: (1) Plaintiff failed to exhaust

his administrative remedies as to at least one of the August 2016 letters; (2) ODOC’s rule

prohibiting certain sexually explicit material has already been considered and upheld by the

Ninth Circuit; (3) ODOC correctly applied the rule to the items at issue; (4) there is no lack of

due process in deprivation of property; (5) there is no lack of due process in challenging the

prohibition of the items; (6) the Fourth Amendment does not apply to prisoners; and (7)

Defendant Gower had no personal participation in any alleged constitutional violations. Defs.’

Mot. 38–45, ECF No. 185. Plaintiff argues Defendants improperly censored, seized, and

suppressed sexually explicit letters from his fiancée and sexually explicit books. Pl.’s Br. 21,

ECF No. 151-1. Plaintiff also argues that Defendants’ actions were arbitrary because Defendants

permit other items that contain sexually explicit content. Id. at 23; Pl.’s Suppl. Decl. ¶ 65, ECF

No. 153-1.

A. First Amendment

ODOC’s mail rules prohibit certain sexually explicit materials, including:

(i) Portrayal of actual or simulated sexual acts or behaviors

between human beings including, but not limited to, intercourse,

sodomy, fellatio, cunnilingus, or masturbation. (ii) Portrayal of

actual or simulated penetration of the vagina or anus, or contact

between the mouth and the breast, genitals, or anus. (iii) Portrayal

of actual or simulated stimulation of the breast, genitals, or anus.

(iv) Portrayal of actual or simulated acts or threatened acts of force

or violence in a sexual context, including but not limited to forcible

intercourse (rape) or acts of sadomasochism emphasizing the

infliction of pain. (v) Portrayal of actual or simulated sexual acts or

behaviors in which one of the participants is a minor, or appears to

be under the age of 18. (vi) Beastiality: Portrayal of actual or

simulated sexual acts or behaviors between a human being and an

animal.

Or. Admin. R. 291-131-0035(1)(a)(C). The rules make an exception for sexually explicit

material that “has scholarly value, or general social or literary value.” Or. Admin. R. 291-131-

0035(1)(e). The Ninth Circuit has held that ODOC’s mail rules prohibiting certain sexually

explicit materials are rationally related to legitimate penological interests and do not

unconstitutionally infringe on inmates’ First Amendment rights. Bahrampour v. Lampert, 356

F.3d 969, 975–76 (9th Cir. 2004).

Here, ODOC correctly applied its rule to the items at issue. Love Affair depicts sexually

explicit content subject to the ODOC rule, including descriptions of apparent rape and incest,

which constitutes both (1) actual or simulated acts of threatened acts of force or violence in a

sexual context, and (2) actual or simulated acts or behaviors in which one of the participants is a

minor, or appears to be under the age of eighteen. Thompson Decl., Ex. 2 at 5–15, ECF No. 191.

Natural Young Beauties shows sexually explicit content subject to the ODOC rule, including

actual or simulated acts or behaviors in which one of the participants is a minor, or appears to be

under the age of eighteen. Declaration of Michael Yoder, Ex. 2, ECF No. 188 (“Yoder Decl.”).

Letters from Plaintiff’s fiancée also depict sexually explicit content subject to the ODOC rule,

including detailed descriptions of sexual activity such as intercourse, fellatio, masturbation, and

penetration. Thompson Decl., Exs. 1, 7, ECF No. 191. All items that were subjected to

administrative review had several levels of officials all finding rule violations regarding sexually

explicit content. As such, Defendants’ motion is granted as to the First Amendment claim

contained in Plaintiff’s Fourth Claim.

B. Fourth Amendment

In Hudson v. Palmer, the Supreme Court held that “the Fourth Amendment has no

applicability to a prison cell.” 468 U.S. 517, 536 (1984). The Supreme Court further held that

“society is not prepared to recognize as legitimate any subjective expectation of privacy that a

prisoner might have in his prison cell[.]” Id. at 526. Here, Plaintiff’s claims fail because

prisoners do not have an expectation of privacy in their cells. As such, Defendants’ motion is

granted as to Plaintiff’s Fourth Amendment claim contained in Plaintiff’s Fourth Claim.

C. Fourteenth Amendment

1. Loss of Property

Generally, the deprivation of a protected property interest requires a meaningful

opportunity to be heard at a meaningful time. Zinermon v. Burch, 494 U.S. 113, 126–27 (1990).

When a state official’s deprivation of property is authorized by established state procedures,

regulations, or statutes, a pre-deprivation hearing is typically required. See id. at 127, 132; Piatt

v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985). However, when the alleged deprivation of

property arises from an unauthorized action by a prison official, whether intentional or negligent,

the Supreme Court “has held that a statutory provision for a postdeprivation hearing, or a

common-law tort remedy for erroneous deprivation, satisfies due process.” Zinermon, 494 U.S.

at 128; see also Hudson, 468 U.S. at 533 (“An unauthorized intentional deprivation of property

by a state employee does not constitute a violation of the procedural requirements of the Due

Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the

loss is available.”). Oregon provides an adequate post-deprivation remedy for the unauthorized

destruction of property through the Oregon Tort Claims Act. Gutierrez v. Williams, 505 Fed.

App’x 659, 660 (9th Cir. Jan. 17, 2013) (citing Or. Rev. Stat. § 30.260 et seq.). Here, because the

Oregon Tort Claims Act provides an adequate post-deprivation remedy, Plaintiff fails to state a

due process claim for his lost or damaged property.

2. Plaintiff’s Challenge to Defendants’ Prohibition

“[T]he decision to censor or withhold delivery of correspondence to a prisoner must be

accompanied by minimum procedural safeguards.” Krug v. Lutz, 329 F.3d 692, 697 (9th Cir.

2003) (citing Procunier v. Martinez, 416 U.S. 396, 417–18 (1974)). Prisoners have the right to

notification when mail is rejected, the right to a reasonable opportunity to protest that decision,

and the right to have review conducted by an official other than the original person who rejected

the mailing. Id.

Here, Plaintiff received written publication and mail violation notices and was afforded

an administrative review. Plaintiff thus received all the minimum procedural safeguards that he

was due for each mail item at issue. See Crozier v. Endel, 446 Fed. App’x 14, 15 (9th Cir. Jul.

26, 2011) (affirming dismissal of prisoner’s due process claim because prisoner admitted to

receiving notice his erotic magazine was prohibited under applicable regulations and had an

opportunity to be heard on the issue).

In sum, Defendants’ motion is granted as to the Fourteenth Amendment claim contained

in Plaintiff’s Fourth Claim.

V. Fifth Claim

Defendants argue summary judgment is appropriate as to Plaintiff’s First Amendment,

Fourth Amendment, and Fourteenth Amendment claims because: (1) Plaintiff cannot show any

action was taken because of protected conduct; (2) the conduct order had a legitimate

correctional goal; (3) the Fourth Amendment does not apply to prisoners; and (4) due process

claims cannot be brought for allegedly lost or damaged property. Defs.’ Mot. 46–48, ECF No.

185. Plaintiff argues the evidence demonstrates Defendant Surber took adverse action against

Plaintiff because of Plaintiff’s protected speech. Pl.’s Br. 25, ECF No. 151-1; Pl.’s Suppl. Decl. ¶

79, ECF No. 153-1.

A. First Amendment

1. Loss of the Book

The PLRA provides that “[n]o action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). Congress enacted the PLRA “in the wake of a sharp rise in

prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). The PLRA

strengthened the exhaustion requirement so that “[e]xhaustion is no longer left to the discretion

of the district court, but is mandatory.” Id. at 85 (citation omitted). “Prisoners must now exhaust

all ‘available’ remedies . . . even where the relief sought—monetary damages—cannot be

granted by the administrative process.” Id. The exhaustion requirement “applies to all inmate

suits about prison life” that do not involve the duration of a prisoner’s sentence. Nettles v.

Grounds, 830 F.3d 922, 932 (9th Cir. 2016) (quoting Porter v. Nussle, 534 U.S. 516, 532

(2002)).

The PLRA’s exhaustion requirement mandates “proper” exhaustion of administrative

remedies. Woodford, 548 U.S. at 93. Proper exhaustion means that “a prisoner must complete the

administrative review process in accordance with the applicable procedural rules, including

deadlines, as a precondition to bringing suit in federal court.” Id. at 88. “The obligation to

exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’” Brown v.

Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original). To be available, a remedy must

be available “as a practical matter; it must be capable of use; at hand.” Albino v. Baca, 747 F.3d

1162, 1171 (9th Cir. 2014) (citation and internal quotation marks omitted).

A motion for summary judgment is the proper means to raise an AIC’s failure to exhaust

administrative remedies. Id. at 1166. “If undisputed evidence viewed in the light most favorable

to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under

Rule 56.” Id.

Plaintiff did not appeal Defendants’ denial of his grievance regarding the confiscation of

his book. See Eynon Decl., Ex. 10 at 1–2, ECF No. 186. As such, Plaintiff failed to exhaust his

administrative remedies as required by the PLRA as to his book.

2. Misconduct Report

Plaintiff has failed to offer any evidence that rises above mere speculation to show

Defendant Surber acted out of a retaliatory motive. See Wood, 753 F.3d at 899. Plaintiff’s

evidence does not support any causal link between Defendant Surber’s misconduct report

concerning the book and Plaintiff’s statement that he intended to sue Defendant Surber.

Defendant Surber confiscated the book and offered Plaintiff an opportunity to voluntarily destroy

the book before Plaintiff threatened to sue Defendant Surber. Nofziger Decl., Ex. 2 at 1–5, ECF

No. 190. Accordingly, Plaintiff cannot show a connection between Defendant Surber’s adverse

action and Plaintiff’s statement that he intended to sue. Plaintiff has failed to raise a genuine

issue of material fact as to whether Defendant Surber acted out of retaliation for Plaintiff’s

protected conduct. As such, Defendants’ motion is granted as to the First Amendment claim

contained in Plaintiff’s Fifth Claim.

B. Fourth Amendment

As explained, Plaintiff’s Fourth Amendment claims fail because prisoners do not have an

expectation of privacy in their cells. As such, Defendants’ motion is granted as to the Fourth

Amendment claim contained in Plaintiff’s Fifth Claim.

C. Fourteenth Amendment

As explained, Oregon provides an adequate post-deprivation remedy for the unauthorized

destruction of property through the Oregon Tort Claims Act. Gutierrez, 505 Fed. App’x at 660

(citing Or. Rev. Stat. § 30.260 et seq.). Here, because the Oregon Tort Claims Act provides an

adequate post-deprivation remedy, Plaintiff fails to state a due process claim for his lost or

damaged property.

As such, Defendants’ motion is granted as to the Fourteenth Amendment claim contained

in Plaintiff’s Fifth Claim.

VI. Sixth Claim

Defendants argue summary judgment is appropriate as to Plaintiff’s First Amendment

claim because: (1) Plaintiff cannot show Defendant Lopez’s actions were taken because of

protected conduct; (2) Defendant Lopez’s actions had a legitimate correctional goal; and (3)

there is no evidence showing Defendants Horning or Deacon violated Plaintiff’s First

Amendment rights. Defs.’ Mot. 48–51, ECF No. 185. Plaintiff argues the evidence demonstrates

Defendants took adverse action against Plaintiff because of Plaintiff’s protected conduct, which

had a chilling effect on Plaintiff’s ability to exercise his First Amendment rights and failed to

advance any legitimate correctional goal. Pl.’s Br. 36–43, ECF No. 151-1; Pl.’s Suppl. Decl. ¶¶

106–110, ECF No. 153-1.

Here, Plaintiff has failed to offer any evidence that rises above mere speculation to show

Defendant Lopez acted out of a retaliatory motive. See Wood, 753 F.3d at 899. After Defendant

Lopez saw blood in the shower, Defendant Lopez came looking for Plaintiff and found him in

the law library. See Nofziger Decl., Ex. 1 at 11, ECF No. 190. Defendant Lopez’s motivation for

issuing Plaintiff a conduct order arose before Defendant Lopez even knew Plaintiff was using the

law library. Additionally, Plaintiff offers no evidence showing Defendants Horning or Deacon

violated Plaintiff’s First Amendment rights. Viewing these facts in the light most favorable to

Plaintiff and drawing all reasonable inferences in his favor, no reasonable jury could conclude

that Defendants acted out of retaliatory motive for Plaintiff’s protected conduct. As such,

Defendants’ motion is granted as to Plaintiff’s Sixth Claim.

CONCLUSION

For the reasons above, Plaintiff’s motion for summary judgment (ECF No. 150) is

DENIED and Defendants’ motion for summary judgment (ECF No. 185) is GRANTED in part

and DENIED in part. The Court summarizes the disposition for each claim raised in Defendants’

motion for summary judgment as follows:

I. First Claim

A. First Amendment: GRANTED

II. Second Claim

A. First Amendment:

a. Mail Received before March 3, 2017: GRANTED

b. Mail Received on or after March 3, 2017: DENIED

c. Mail Received from Eric Beach: DENIED

B. Sixth Amendment: GRANTED

III. Third Claim

A. First Amendment: GRANTED

B. Fourteenth Amendment: GRANTED

IV. Fourth Claim

A. First Amendment: GRANTED

B. Fourth Amendment: GRANTED

C. Fourteenth Amendment: GRANTED

V. Fifth Claim

A. First Amendment: GRANTED

B. Fourth Amendment: GRANTED

C. Fourteenth Amendment: GRANTED

VI. Sixth Claim

A. First Amendment: GRANTED

DATED this 10th day of August 2022.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge