McCrae v. Miller

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

ORLANDO JOHNQUIL MCCRAE, Case No. 6:20-cv-02272-MK

Plaintiff, OPINION AND ORDER

vs.

MARION COUNTY, by and through

MARION COUNTY SHERIFF’S OFFICE,

et al.,

Defendants.

_________________________________________

KASUBHAI, United States Magistrate Judge:

Plaintiff Orlando McCrae (“Plaintiff”) filed this action (ECF No. 1) alleging civil rights

violations under 42 U.S.C. § 1983 and state constitutional and tort claims against Defendants

Marion County, Sheriff Joe Kast, Commander Tad Larson, Lt. J. Ramsey, Sgt. Jared Miller,

Deputy Allen, Deputy Anderson, Deputy Barker, Deputy Barnhill, Deputy Buckholz, Deputy

Chrisemer, Sgt. Davis, Deputy Douglass, Deputy Godoy, Deputy Gonzalez, Deputy Howell, Sgt.

Jochams, Deputy Lilly, Deputy Maddy, Lt. McDaniel, Deputy McLin, Deputy Riedberger,

Deputy Sanne, Deputy Sterling, Deputy Straus, Deputy A. Barton, RN Angelica, Deputy B.

Hoppe, Deputy J. Friesen, Sgt. J. Peterson, Deputy J. Susee, Deputy J. Tilson, Deputy Korey

Kneeland, Sgt. P. Dodson, Deputy R. Hernandez, Deputy R. Tilson, Sgt. Ryan Dunbar, Deputy

S. Griffith, Deputy T. Hart, and Deputy W. Hook (collectively, “Defendants”). Defendants filed

a Motion for Summary Judgment on March 24, 2023. ECF No. 53. For the reasons below,

Defendants’ Motion is granted.

BACKGROUND

Plaintiff brought this action against all Defendants on December 28, 2020, alleging

violations of his First, Fourth, Sixth, Eighth, and Fourteenth Amendment rights, as well as

violations of Oregon state and constitutional law. Plaintiff’s claims arise out of a series of

incidents that took place while Plaintiffs was in Defendants’ custody as a pretrial detainee at the

Marion County Jail (the “Jail”). Compl., ECF No. 2. Plaintiff was held in pretrial custody at the

Jail from September 13, 2020, through January 7, 2021. Id. Plaintiff suffers from a mental health

disability and has a seventh-grade education. Id.

The alleged violations of Plaintiffs’ constitutional and statutory rights began on

September 25, 2020, when Plaintiff was allegedly “stripped naked and left in an empty,

unbearably cold cell with no shelter and no bedding.” Id. at ¶ 25. Then on October 6, 2020,

Plaintiff was pepper-sprayed by Jail staff. Am. Compl. ¶¶ 102, 126, 185(h), 193, ECF No. 14.

Plaintiff also alleges that, during his pretrial custody, Jail staff violated his 14th amendment

rights by (1) failing to provide him with adequate and timely psychiatric care; (2) failing to

properly decontaminate him after he had been pepper sprayed or had covered himself in fecal

matter; and (3) denying him basic necessities including clothing, bedding, soap, towels, and

other items. Am Compl. ¶ 185. Plaintiff’s Amended Complaint, filed on August 19, 2021,

alleges that Defendants also denied him access to courts and interfered with his right to freedom

of religion; discriminated against him in violation of the Americans with Disabilities Act; and

used excessive force against him on five different occasions: September 25, October 5 and 6,

October 29 and 30, 2022, and on January 7, 2021. Id.

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

Defendants argue that Plaintiff’s claims must fail because (1) Plaintiff failed to exhaust

his administrative remedies; (2) Defendants are entitled to qualified immunity; (3) Plaintiff failed

to satisfy the notice requirements of Oregon Tort Claims Act; and (4) Plaintiff cannot show any

constitutional violation. For the reasons discussed below, Defendants’ motion is granted.

I. Exhaustion of Administrative Remedies

Defendants first argue that they are entitled to summary judgment on Plaintiff’s claims

because Plaintiff failed to exhaust his administrative remedies prior to filing this action as

required by the Prison Litigation Reform Act (PLRA). Specifically, Defendants argue that

Plaintiff failed to properly grieve the incidents that form the bases of his constitutional

complaints. To support this argument, Defendants cite deposition testimony from Jail staff to

show that Plaintiff did not complete the grievance and appeal procedure for each incident of

alleged excessive force, deliberate indifference, cruel and unusual punishment, or failure to train

and supervise. In his response, Plaintiff argues that his failure to grieve these incidents is excused

because (1) his mental illness prevented him from properly understanding the grievance

procedures, (2) Defendants retaliated against him for filing grievances, and (3) Defendants

otherwise prevented Plaintiff from appealing the Jail’s responses to Plaintiff’s grievances.

Plaintiff’s Brief in Opp., ECF No. 82.

Under the Prison Litigation Reform Act (PLRA), adults in custody (AICs) must exhaust

all available administrative remedies before filing a federal action to redress prison conditions or

incidents. See 42 U.S.C. § 1997e(a) (“No 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.”). The exhaustion requirement is mandatory and requires compliance with both

procedural and substantive elements of the prison administrative process. Woodford v. Ngo, 548

U.S. 81, 85, 90 (2006). AICs must exhaust all available grievance remedies before filing a §

1983 action, including appealing grievance decisions to the highest level. Jackson v. Fong, 870

F.3d 928, 933 (9th Cir. 2017).

If the defendant shows that the AIC did not exhaust an available administrative remedy,

“the burden shifts to the prisoner to come forward with evidence showing that there is something

in his particular case that made the existing and generally available administrative remedies

effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014); see also

Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (“[A]n inmate is required to exhaust those, but only

those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action

complained of.’”) (citation omitted). This burden is met when the AIC shows that he or she took

“reasonable and appropriate steps” to pursue administrative remedies, but prison officials

nonetheless interfered with attempts to exhaust or failed to follow correct grievance protocol.

Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010).

Defendants contest Plaintiff’s exhaustion of administrative remedies with respect to his

claims of (1) inadequate mental health treatment; (2) lack of access to courts; (3) freedom of

religion; (4) ADA and Rehabilitation Act violations; and (5) conditions of confinement and

excessive force.

1. Mental Health Grievance

Plaintiff submitted a grievance regarding his allegation that the Jail was providing

inadequate mental health treatment (Grievance No. 2389). Plaintiff pursued this grievance up

through the second level of review and, on the grievance form, signed his name to indicate that

he accepted the Jail’s resolution. Davis Decl. I ¶ 26, Ex. C at 31-32, ECF No. 54.

2. Access to Courts

Regarding Plaintiff’s claim that he was denied access to courts, Defendants concede the

Plaintiff fully grieved his complaint that Jail staff were reading his legal mail and listening in on

his conversations with his attorney. Defendants argue, however, that because Plaintiff’s

grievance of this issue (Grievance No. 2193) “contains only generalized allegations and does not

allege any specific dates on which either claimed violation occurred, Plaintiff’s grievance failed

to give Defendants ‘fair notice’ of his claims as required by the PLRA.” ECF No. 53 at 19. The

Court disagrees. Because Plaintiff’s grievance form sufficiently alleges a denial of access to

courts, the Court finds that Plaintiff has satisfied the PLRA requirements for administrative

exhaustion regarding this claim.

3. Freedom of Religion

Plaintiff also filed and appealed a grievance regarding his freedom of religion claim,

Grievance No. 914. Defendants argue that this grievance was deficient because Plaintiff did not

“specifically identify what materials Plaintiff was claiming that he had been denied access to.”

Def. Mtn. Summ. J. at 20, ECF No. 53. In his response, Plaintiff alleges that he was denied

access to a Bible. The Court finds that Plaintiff grieved his freedom of religion claim for the

purposes of satisfying the PLRA.

4. ADA and Rehabilitation Act

With respect to Plaintiff’s claims under the ADA and Rehabilitation Act, Defendants

argue that Plaintiff failed to file any grievances regarding these claims while he was incarcerated.

Defendants argue that these claims are also barred by the PLRA. The Court agrees.

5. Conditions of Confinement and Excessive Force

Plaintiff also grieved his claim regarding the Jail’s failure to properly decontamination

him (Grievance No. 961) following an incident on October 6, 2020, when Jail staff pepper-

sprayed Plaintiff. Am. Compl. ¶¶ 102, 126,185(h), 193. Plaintiff did not seek review of the Jail’s

response but filed a separate grievance (Grievance No. 2189) regarding the same incident on

November 24, 2020. Davis Decl. I ¶ 23. Two days after filing that grievance, on November 26,

Plaintiff submitted Grievance No. 2200, alleging that on September 25, 2020, he was “stripped

naked and left in an empty, unbearably cold cell with no shelter and no bedding.” Id. at ¶ 25. A

deputy responded to Plaintiff’s grievance stating that it was void because it was beyond the

thirty-day window for grievances under Jail rules, and Plaintiff did not seek further review. Id.

With respect to Plaintiff’s excessive force claims and claims regarding his conditions of

confinement, Defendants note that jail rules prohibit grieving disciplinary issues and that appeals

from disciplinary sanctions are handled via a separate process. Here, several of Plaintiff’s claims

arise out of disciplinary sanctions such as removal of materials from Plaintiff’s cell and the use

of pepper-spray and forced cell extractions. Defendants argue that summary judgment is

appropriate on Plaintiff’s excessive force and conditions of confinement claims. In response,

Plaintiff argues that he was threatened with retaliation for filing grievances and that some of the

Jail’s responses to his grievances were withheld from him, resulting in his inability to properly

appeal. Viewing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff

has met his burden to show that he took “reasonable and appropriate steps” to pursue

administrative remedies, but prison officials nonetheless interfered with attempts to exhaust his

administrative remedies with respect to his excessive force and conditions of confinement

claims. Nunez, 591 F.3d at 1224.

In sum, the Court agrees with Defendants that Plaintiff failed to properly grieve his

allegation that the Jail provided inadequate mental health treatment as well as Plaintiff’s claims

under the ADA and Rehabilitation Act. Because Plaintiff failed to satisfy the PLRA

requirements, Defendants’ motion for summary judgment is granted with respect to these claims.

Because the Court finds that Plaintiff either adequately grieved or provided evidence that he took

reasonable and appropriate steps to grieve his remaining claims, the Court proceeds to a qualified

immunity analysis of those claims.

II. Qualified Immunity

Defendants argue Plaintiff has not shown a violation of a constitutional right on any of

his claims and, even if he could, Defendants would nevertheless be entitled to qualified

immunity. To determine whether a defendant is entitled to qualified immunity, the Court

considers two questions: (1) whether the defendant violated a constitutional right, and (2)

whether that right was clearly established at the time of the alleged violation. See Pearson v.

Callahan, 555 U.S. 223, 232 (2009). As the Ninth Circuit recently explained in Isayeva v.

Sacramento Sheriff’s Department, 872 F.3d 938, 945 (9th Cir. 2017), an officer may be denied

qualified immunity at summary judgment in a Section 1983 case “only if (1) the facts alleged,

taken in the light most favorable to the party asserting injury, show that the officer’s conduct

violated a constitutional right, and (2) the right at issue was clearly established at the time of the

incident such that a reasonable officer would have understood [his] conduct to be unlawful in

that situation.” Id. at 945 (internal quotations omitted). The Court finds that Defendants are

entitled to qualified immunity on each of Plaintiff’s federal constitutional claims because

Plaintiff has failed to show a violation of a clearly established constitutional right.

1. Failure to Train and Supervise

Plaintiff’s Amended Complaint alleges that the Jail failed to properly train and supervise

its deputies and other staff. Liability under § 1983 arises only upon a showing of personal

participation by each defendant, and a supervisor – such as the jail commander or sheriff – 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). A claimant must show that each named defendant,

through his or her own individual actions, violated the claimant’s constitutional rights. See id. at

1045. In his briefing, Plaintiff offers no evidence that would establish any element of a claim for

failure to train and supervise. See Pl.’s Opp. Accordingly, Defendants are entitled to qualified

immunity on Plaintiff’s failure to train and supervise claims.

2. Excessive Force Claims

Plaintiff also alleges constitutional violations based on excessive use of force. To prove a

Fourteenth Amendment excessive force claim under § 1983, a pretrial detainee must establish

that “the force purposefully or knowingly used against him was objectively unreasonable.”

Kingsley v. Hendrickson, 576 U.S. 389, 396-97, 135 S. Ct. 2466, 192 L. Ed. 2d 416 (2015).

“[O]bjective reasonableness turns on the facts and circumstances of each particular case” and

should be determined from the "perspective of a reasonable officer on the scene," without the

“20/20 vision of hindsight.” Id. A non-exhaustive list of considerations that may bear on the

reasonableness of the force used include: (1) “the severity of the security problem at issue”; (2)

“the threat reasonably perceived by the officer”; (3) “the relationship between the need for the

use of force and the amount of force used”; (4) “any effort made by the officer to temper or to

limit the amount of force”; (5) “whether the plaintiff was actively resisting”; and (6) “the extent

of the plaintiff's injury.” Id. (citing Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104

L. Ed. 2d 443 (1989)). In applying these factors, the court must account for the “’legitimate

interests that stem from the government’s need to manage the facility in which the individual is

detained,’ appropriately deferring to ‘policies and practices that in th[e] judgment’ of jail

officials ‘are needed to preserve internal order and discipline and to maintain institutional

security.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979)).

Regarding the October 5, 2020, incident alleged in the complaint, Plaintiff argues that Jail

deputies used excessive force when they punched him through the food port of his cell to prevent

him from blocking it. Defendants allege that Jail deputies needed to clear the food port so that

they could use pepper spray to stop Plaintiff from breaking the head off of a fire suppression

sprinkler. Def. Reply at 19-20, ECF No. 85. Plaintiff admits that, at the time of the incident, he

was standing on a sink attempting to break the sprinkler head and threatening to flood his cell.

Plaintiff also admits that, once deputies interceded, he jumped down from the sink and attempted

to block his cell’s food port to prevent deputies from subduing him. Def. Reply at 19. Plaintiff

maintains that the use of the physical force to remove him from the food port was nevertheless

excessive because, after jumping down from the sink, he had “giv[en] up his attempt to break the

sprinkler” and no longer posed a risk to Jail staff or property. Def. Reply at 20.

Applying the relevant Kingsley factors, the Court finds that Defendants’ use of force in

this instance was not a violation of a clearly established constitutional right. 576 U.S. at 396-97.

With respect to the fifth consideration, Plaintiff was actively resisting. Defendants have also

provided evidence that the extent of any injury to Plaintiff's was minimal. Defendants have

provided testimony from Jail staff that they were attempting to prevent Plaintiff from breaking

the sprinkler head and flooding his cell by moving Plaintiff to another cell where the sprinkler

was out of reach. Jail staff could not do so without first using pepper spray, given Plaintiff’s

threats toward anyone who came into the cell and his history of violent behavior in the Jail. Id.,

Ex. F at 18, Ex. H (disciplinary history summary). The security problem at issue was therefore of

moderate severity, and a threat of violence was reasonably perceived by the Jail staff based on

Plaintiff history and present threats. See Kingsley, 576 U.S. at 396-97. Because the only means of

delivering the pepper spray into the cell was via the food port, Jail deputies determined that it

was necessary to use punches to clear the port. Davis Decl. I, Ex. F at 18; Murphy Decl., Ex. A

at No. 18 (interrogatory response of Deputy Randy Barnhill, Jr.), ECF No. 87. Deputy Hoppe

delivered two blows to Plaintiff’s buttocks through the food port. Davis Decl. I, Ex. F at 18.

Although Plaintiff was still able to block the port using his mattress, after deputies warned

Plaintiff that they would use pepper spray, Plaintiff submitted to restraints. Id. Plaintiff was then

seen by medical staff and did not complain of any injury. Id.

Regarding the remaining incidents occurring on October 6th, 29th, and 30th, Plaintiff

argues that it was excessive for Jail staff to employ pepper spray against him because he is

asthmatic. However, Plaintiff provides no evidence that he has ever been diagnosed with asthma.

On the contrary, during the Jail intake process Plaintiff was asked whether he had any current

medical conditions and indicated that he had none.1 Davis Decl. II, Ex. E (intake report), ECF

No. 86. Because Plaintiff has failed to provide evidence that Defendants’ use of force on these

occasions was unreasonable, and Defendants are entitled to qualified immunity on these claims.

See Kingsley, 576 U.S. at 396-97.

Plaintiff also alleges that Defendants used excessive force against him while extracting

him from his cell in anticipation of his January 7, 2021, sentencing hearing. Pl.’s Opp. at 24-25.

1 In his briefing, Plaintiff is equivocal regarding whether he has asthma. Pl. Opp. at 23 (“The

dispute is also[ ] whether or not the [D]efendants pepper sprayed the [P]laintiff – ignoring the

fact that he was asthmatic (or could be)”).

During the cell extraction, Plaintiff was pepper sprayed and placed into a restraint chair so that

he could be transported to the courthouse for sentencing. Davis Decl. I, Ex. F at 56-74. Plaintiff

claims that he was subjected to excruciating pain on this occasion because his restraints were too

tight, and that he was not provided proper decontamination to relieve him from the effects of the

pepper spray. Pl.’s Opp. at 24. However, Plaintiff did not raise either issue during his sentencing

hearing, despite repeatedly interrupting proceedings to make other complaints regarding his

current condition. See Pl. Decl., Ex. N, 78-88 (sentencing transcript), ECF No. 83. While

Plaintiff later raised these issues with Jail staff, there is evidence in the record that deputies

checked Plaintiff’s restraints and loosened them after confirming that they were tight, which

Plaintiff appreciated. Davis Decl. I, Ex. F at 57. Beyond the allegations in his Amended

Complaint, Plaintiff has not provided any evidence that Defendants were aware that he had been

restrained too tightly and ignored the risk that Plaintiff would be harmed. Further, Defendants

have provided evidence that, immediately after Plaintiff was pepper sprayed, Jail staff applied

wet towels to his face to decontaminate him, Davis Decl. I, Ex. F at 58, and continued to apply

them to Plaintiff’s face and body as needed over the course of his sentencing hearing. Id. at 61,

64. Plaintiff has failed to provide evidence that Defendants violated a clearly established

constitutional right on the January 7 incident.

3. Conditions of Confinement

Plaintiff also alleges a Fourteenth Amendment violation based on three forms of

unconstitutional conditions of confinement: (1) failing to provide him adequate and timely care

for various psychiatric conditions; (2) failing to promptly decontaminate him after he had been

pepper sprayed or covered himself in fecal matter; and (3) denying him several basic necessities,

including clothing, bedding, soap, towels, and other unspecified hygiene items. Am. Compl. ¶

185.

Plaintiff first alleges that he was “offered NO treatment” for his mental health issues

“throughout his entire incarceration.” Pl.’s Opp. at 6, ECF No. 82. As discussed above, Plaintiff

failed to properly grieve his allegation that the Jail provided inadequate mental health treatment.

Further, Defendants have provided records showing that Plaintiff received psychiatric treatment,

including medication and visits with behavioral health professionals. Defs’ Mot. at 17-18; Davis

Decl. I, Ex. G. Plaintiff has also provided records showing that he received a psychiatric

evaluation while in pretrial custody. Pl. Decl, Ex. G., ECF No. 83. Thus, even if Plaintiff could

satisfy the PLRA requirements, Defendants would be entitled to qualified immunity on this claim

because there is no evidence in the record that Defendants violated any clearly established

constitutional right. See Pearson, 555 U.S. 232.

Plaintiff alleges in his Response that Defendants failed to provide him proper

decontamination on 17 different occasions. Pl.’s Opp. at 11. Plaintiff’s Amended Complaint,

however, only alleges two such incidents, occurring on October 6, 2020 and October 22, 2020.

Am. Compl. ¶¶ 102, 126, 185(h), 193 (October 6th incident) ECF No. 14; Id. ¶¶ 75-76, 85, 87,

114, 185(h), 193 (October 22nd incident). Regarding the October 6th incident, undisputed

records from Jail deputies and nursing staff involved unanimously agree that Plaintiff was

provided both wet towels and water to decontaminate with after he was pepper sprayed. Davis

Decl. I ¶ 30, Ex. F at 21 (Barton), 23 (Gonzalez), 25-26 (Griffith), 28 (Hoppe), 29 (McDaniel).

Plaintiff made no complaints when seen an hour after the incident, refused a shower on October

7th, and did not raise any issues during a medical appointment on October 8th. Id. ¶ 31, Ex. G at

45. With respect to the October 22nd incident, Defendants have also provided evidence that

Plaintiff refused a shower the same day and never alerted staff to any concerns with cell hygiene.

Id. ¶ 31, Ex. G at 45, 79. On this record, Defendants are entitled to qualified immunity on

Plaintiff’s decontamination claims.

Plaintiff’s final allegation in his first claim for relief is that he was denied a variety of

items required for his basic needs, including clothing, bedding, personal hygiene supplies like

soap and toothpaste, as well as other named items. In his response, Plaintiff alleges that he was

denied these items for “nearly 90” of the 117 days of his incarceration. Pl.’s Opp. at 16. Plaintiff

argues that this deprivation was excessive because only two Jail reports documented Plaintiff

misusing hygiene products. Id.

The Ninth Circuit has recognized that some restrictive conditions of confinement are

constitutional when they “serve a legitimate penological interest.” Chappell v. Mandeville, 706

F.3d 1052, 1062 (9th Cir. 2013). Here, Defendants provide evidence that Plaintiff misused

hygiene on several occasions. Davis Decl. I, Ex. B at 2 (using toothbrush in attempt to break

sprinkler head), 6 (blocking cell window with toothpaste), 8 (wrapping feces in towel given to

deputy). Further, although Plaintiff was prohibited at various times from possessing certain

hygiene items such as soap, towels, and toothpaste while in his cell, he was provided soap and

towels each time that he showered and allowed to use a toothbrush and toothpaste whenever he

requested to brush his teeth and was provided with many of the items that he alleges were

withheld, including fresh clothing and linens. Davis Decl. I, ¶ 31, Ex. G at 79-86; Davis Decl. II,

¶ 11. On this record, Defendants are entitled to qualified immunity on Plaintiff’s remaining

Fourteenth Amendment claims.

4. Access to Courts

Plaintiff also alleges violations of his First, Sixth, and Fourteenth Amendment rights

based on Defendants’ alleged denials of access to legal materials and legal mail, and alleged

interference with his ability to privately speak with his criminal defense attorney. To sustain a

denial of access to courts claim, a plaintiff must present evidence giving rise to a reasonable

inference that he suffered an actual injury to contemplated or existing litigation. Lewis v. Casey,

518 U.S. 343, 351-53 (1996); Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir.

2011). “Actual injury [means] actual prejudice with respect to contemplated or existing

litigation, such as the inability to meet a filing deadline or to present a claim.” Hathaway v. Cote,

622 F. App’x 701, 702 (9th Cir. 2015) (internal quotations omitted). “[T]he underlying cause of

action and its lost remedy must be addressed by allegations in the complaint sufficient to give

fair notice to a defendant,” and “be described well enough to apply the ‘nonfrivolous’ test and to

show that the ‘arguable’ nature of the underlying claim is more than hope.” Christopher v.

Harbury, 536 U.S. 403, 416 (2002); see also Rogers v. Giurbino, 625 F. App'x 779, 782 (9th Cir.

2015) (affirming dismissal of access to the courts claim because the plaintiff failed to include

facts about the underlying “lost” cause of action).

Here, while Plaintiff has provided evidence that there were some delays in his ability to

see his criminal defense attorney, Plaintiff has not provided any evidence that Defendants’

alleged interference caused an actual injury to contemplated or existing litigation. See Lewis, 518

U.S. at 351-53; Hathaway, 622 F. App’x at 702. With respect to Plaintiff’s allegations that

Defendants restricted his access to legal materials to assist in his criminal defense, Plaintiff

provides no evidence or legal argument to show how this alleged restriction violated any right

secured by the U.S. Constitution. Similarly, Plaintiff provides no evidence of actual injury

resulting from his allegation that Defendants listened in on his conversations with his attorney.

Defendants are therefore entitled to summary judgment on Plaintiff’s access to courts claims.

5. Freedom of Religion

Plaintiff also alleges that he was denied access to a Bible on various occasions during his

incarceration. To sustain his First Amendment freedom of religion claim, Plaintiff must show

that Defendants burdened the free exercise of his religion without any justification reasonably

related to a legitimate penological interest. See Shakur v. Schiro, 514 F.3d 878, 884 (9th Cir.

2008). To constitute an impermissible burden, the government’s conduct must do more than

“inconvenience” a religious exercise; it “must have a tendency to coerce individuals into acting

contrary to their religious beliefs or exert substantial pressure on an adherent to modify his

behavior and to violate his beliefs.” Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 2015)

(citations omitted).

Here, Defendants provided evidence that Plaintiff previously misused multiple items to

block access to his cell. Davis Decl. I ¶ 34-35. While Plaintiff argues that Defendants provided

no evidence that Plaintiff specifically misused paper in his cell, the Court finds that Defendants’

occasional deprivation of Plaintiff’s access to a Bible was reasonably related to the legitimate

penological interest of maintaining safety and did not impermissibly burden Plaintiff’s free

exercise of religion. Shakur, 514 F.3d at 884; see also Thornburgh v. Abbott, 490 U.S. 401, 409

(1989) (adopting a reasonableness standard for reviewing the Constitutionality of prison

regulations).

6. ADA and Rehabilitation Act claims

Plaintiff’s seventh claim for relief alleges that he was discriminated against on the basis

of his mental health conditions, in violation of the Americans with Disabilities Act and the

Rehabilitation Act. As discussed above, Plaintiff failed to properly grieve his ADA and

Rehabilitation Act claim. The Court notes that even if these claims could survive the PLRA

requirements, Plaintiff fails to provide evidence that would surmount Defendants’ claim to

qualified immunity. To sustain a claim under the ADA, a claimant must show: (1) he is a

“qualified individual with a disability;” (2) he was either excluded from participation in or

denied the benefits of prison services, programs, or activities, or was otherwise discriminated

against by prison officials; (3) because of his disability. McGary v. City of Portland, 386 F.3d

1259, 1265 (9th Cir. 2004). Here, while Plaintiff has provided evidence that he is a qualified

individual with a mental health disability, he presents no evidence that he was denied prison

services or discriminated against because of his disability.

For the reasons discussed above, Defendants are entitled to summary judgment on all of

Plaintiff’s federal claims.

III. State Constitutional and Negligence Claims

In addition to his federal claims, Plaintiff’s Amended Complaint asserts seven claims,

including violations of the Oregon state constitution and claims of negligence under Oregon state

law.2 Defendants argue that they are entitled to summary judgment on these claims because

Plaintiff failed to satisfy the Oregon Tort Claims Act (OTCA) notice requirements prior to filing

this action. Specifically, Defendants allege that they did not receive formal notice of Plaintiff’s

claims within 180 days of the events described in the Complaint. Further, although Plaintiff

commenced this action within 180 days of his alleged injuries, “none of the claims asserted in

[Plaintiff’s] original complaint are the same as the ones asserted in his amended complaint,

2 Claims 8-12 assert state constitutional claims under the Oregon constitution and claims 13 and

14 assert state law negligence claims. Am. Compl. at 45-57.

which was not filed until … August 19, 2021.” Def. Mtn. Summ. J. at 23; see also Compl. at 4-

17.

Except in the case of wrongful death actions, the OTCA notice requirements provide that

notice must be given within 180 days of the alleged loss or injury. O.R.S. § 30.275(2). Timely

notice “is a substantive precedent to recovery under the Oregon Tort Claims Act that, if not

satisfied, deprives a plaintiff of the right to make a claim.” Orr v. City of Eugene, 151 Or. App.

541, 543 (1997) (internal quotation marks omitted). Plaintiff’s brief in opposition to Defendants’

motion provides no reply to Defendants’ argument that he failed to satisfy the OTCA

requirements. Because Plaintiff’s Amended Complaint was filed outside the 180-day window

provided by the OTCA to provide “actual notice” to a party, O.R.S. § 30.275(6), and Plaintiff

provides no evidence that he satisfied the OTCA notice requirements by any other means, the

Court finds that Plaintiff’s state claims are barred by the OTCA. Defendants are entitled to

summary judgment on Plaintiff’s state claims.

CONCLUSION

For the reasons above, Defendants’ motion for summary judgment (ECF No. 53) is

GRANTED.

IT IS SO ORDERED.

DATED this 28th day of November 2023.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge