Case v. Miller

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID K. CASE, No. 2:24-cv-00533-HZ

Plaintiff(s), OPINION & ORDER

v.

JAMIE MILLER, CHRIS SHUPE, and

JOHN DOE,

Defendant(s).

David K. Case

SID # 13165853

Oregon State Penitentiary

2605 State Street

Salem, OR 97310-0505

Plaintiff, Pro Se

Dan Rayfield

Attorney General

Carter Brace

Assistant Attorney General

Oregon Department of Justice

1162 Court Street N.E.

Salem, OR 97301

Attorneys for Defendants

HERNÁNDEZ, Senior District Judge:

This matter is before the Court on Defendants’ Motion for Summary Judgment, ECF 21.

For the following reasons Defendants’ Motion is granted.

BACKGROUND

At all relevant times Plaintiff David Case was an adult in custody (“AIC”) at Snake River

Correctional Institution (“SRCI”). On May 23, 2023, a correctional officer delivered to Plaintiff

an “envelope of legal paperwork” that had been opened outside of Plaintiff’s presence. Compl.,

ECF 2, Attachment 1, ¶ IV. A mailroom staff member had stamped the envelope: “NOT

CONSIDERED A LEGAL ENTITY WITHOUT AN ATTORNEY’S NAME IN ACCORANCE

WITH MAIL RULE 131.” Compl., Ex. 1, at 1. The face of the envelope, however, included the

statement “LEGAL MAIL Brittany Hill Bar #193763.” Id.

On May 25, 2023, Plaintiff submitted a grievance regarding the incident; noted the

materials were related to “a hearing before the Board of Parole and Post Prison Supervision later

[that] year”; and requested “destruction of any copies made of” the contents of the envelope,

“removal or retraining of” the “responsible mail processing center staff,” and “compensation for

damages and emotional distress.” Id. at 4-5. On June 14, 2023, Defendant Chris Shupe, an

administrative specialist in the mail processing center, examined the envelope and “deduced that

it] was from an Attorney [and] marked Legal Mail.” Id. at 6. On June 22, 2023, Shupe responded

to Plaintiff’s grievance and noted that SRCI

does not make copies of Attorney/Court mail. . . . There are no copies to

destroy. When Attorney/Court mail not marked Legal Mail is opened in

the mailroom it is usually not reviewed, but inspected for contraband and

such checks, paper clips, etc. The mailroom apologizes for your Legal

Mail being opened outside your presence.

Id. Plaintiff filed grievance appeals on June 29, 2023, and September 15, 2023, both of which

resulted in responses that noted the mail at issue was legal mail and that the mailroom apologized

for the mistake.

On March 26, 2024, a correctional officer delivered to Plaintiff a letter from the Oregon

Board of Parole that had been opened outside of Plaintiff’s presence. The letter was stamped:

“UNDER RULE 291-131-0010 NOT CONSIDERED LEGAL MAIL DOES NOT STATE

‘LEGAL MAIL’ ON FRONT OF ENVELOPE.” Plaintiff did not file a grievance regarding this

incident. Compl., Ex. 1, at 13.

On March 28, 2024, Plaintiff filed a pro se Complaint against Jamie Miller,

Superintendent of SRCI; Chris Shupe; and John Doe, mail processing center staff, pursuant to 42

U.S.C. § 1983 alleging Defendants violated Plaintiff’s First and Sixth Amendment rights when

they opened the May 25, 2023 and March 26, 2024 letters outside of Plaintiff’s presence.

Defendants move for summary judgment.

STANDARDS

Summary judgment is appropriate if 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). The

moving party bears the initial responsibility of informing the court of the basis of its motion, and

identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(quoting former Fed. R. Civ. P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine

issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”

showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28

(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the

pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218

(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v.

Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the

light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,

1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the

existence of a material issue of fact implausible, that party must come forward with more

persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec.

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

DISCUSSION

Defendants move for summary judgment on the grounds of failure to exhaust

administrative remedies as to the March 2024 letter, no personal involvement of Miller and

Shupe, failure to establish a violation of the Sixth Amendment, failure to establish a violation of

the First Amendment, and qualified immunity.

I. Failure to Exhaust

Defendants assert Plaintiff failed to exhaust his administrative remedies as to the March

2024 letter because he did not file a grievance regarding that incident.

A. Standards

The Prison Litigation Reform Act (“PLRA”) provides “[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). The PLRA

“mandates that an inmate exhaust . . . administrative remedies . . . before bringing suit to

challenge prison conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016)(quotation omitted). “The

prison’s procedures govern whether a grievance contains the appropriate information to exhaust

a claim.” Singleton v. Kernan, 851 F. App'x 737, 738 (9th Cir. 2021)(citing Jones v. Bock, 549

U.S. 199, 218 (2007)).

The exhaustion requirement applies “to all inmate suits about prison life, whether

they involve general circumstances or particular episodes, and whether they allege excessive

force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). See also Nettles v.

Grounds, 830 F.3d 922, 932 (9th Cir. 2016)(same). Courts “may not excuse a failure to exhaust,

even to take [special] circumstances into account.” Ross, 578 U.S. at 639. Moreover, AICs are

obligated to navigate the prison’s administrative review process “regardless of the fit between a

prisoner’s prayer for relief and the administrative remedies possible.” Booth, 532 U.S. at 739-41.

Accordingly, the Ninth Circuit has held “plaintiffs must pursue a remedy through a prison

grievance process as long as some action can be ordered in response to the complaint.” Brown v.

Valoff, 422 F.3d 926, 934 (9th Cir. 2005)(emphasis in original). Even if the relief the AIC could

receive is nothing more than “‘corrective action taken in response to an inmate’s grievance [that]

. . . improve[s] prison administration and satisf[ies] the inmate,’” it is sufficient relief for an

inmate to continue with the administrative process. Id. at 936 (quoting Porter, 534 U.S. at 525).

B. Oregon Department of Corrections (“ODOC”) Grievance Procedure

Oregon Administrative Rules provide that when AICs cannot resolve a dispute

informally, they may file a formal grievance. OAR 291-109-0100(3)(a)-(b). An AIC “may not

file more than one accepted grievance [ ] regarding a single incident or issue, regardless of

incident date, unless substantial new information is available about the incident or issue.” OAR

291-109-0210(2). “Grievances must be received by the institution grievance coordinator or

designee within 14 calendar days from the date of the incident or issue being grieved, unless the

AIC can satisfactorily demonstrate why the grievance could not be timely filed.” OAR 291-109-

0205(1).

After a grievance is accepted, staff provides a response to the AIC within 35 days,

“unless further review is necessary[.]” OAR 291-109-0205(2). If the AIC is dissatisfied with the

response to the submitted grievance, the AIC may appeal the denial in a two-level system of

review. The first-level appeal “must be received by the institution grievance coordinator or

designee within 14 calendar days from the date the initial grievance response was sent to the AIC

unless the AIC can satisfactorily demonstrate why the [first-level] appeal could not be timely

filed.” OAR 291-109-0205(3). A response to the first-level appeal is sent to the AIC within 35

calendar days, “unless further review is necessary[.]” OAR 291-109-0205(4). If an AIC is

dissatisfied with the response to the first-level grievance appeal, the AIC may submit a second-

level appeal “within 14 calendar days from the date the [first-level] appeal response was sent to

the AIC unless the AIC can satisfactorily demonstrate why the [second-level] appeal could not

be timely filed.” OAR 291-109-0205(5).

C. Analysis

Plaintiff did not file a grievance about the March 2024 letter. Plaintiff, therefore,

did not exhaust ODOC’s grievance procedure. Plaintiff asserts that he did not have to exhaust the

March 2024 incident because it was part of a continuing violation.

The Ninth Circuit has “applied the continuing-violations doctrine in the context of

exhaustion of administrative remedies under the PLRA to treat events occurring after an inmate’s

grievance as nonetheless exhausted when the later-occurring events are part of the single

continuing harm or course of conduct that the inmate grieved.” Sheltra v. Christensen, 124 F.4th

1195, 1201 (9th Cir. 2024)(citing Morgan v. Trierweiler, 67 F.4th 362, 369-70 (6th Cir. 2023)).

Under that doctrine “a properly exhausted prison grievance asserting one, continuing harm or a

single course of conduct can exhaust events arising out of the same alleged violation that occur

after the grievance was made.” Id. at 1203. The Ninth Circuit, however, noted that in Morgan the

court distinguished the plaintiff's case, in which the continuing-violation doctrine applied, from a

case involving the “denial of inmate mail where . . . the inmate had not claimed ‘he had been

denied mail consistently’ but rather challenged ‘certain pieces of mail rejected under different

facts and policies.’” Sheltra, 124 F.4th at 1202 (quoting Morgan, 67 F.4th at 370 (citing Siggers

v. Campbell, 652 F.3d 681 (6th Cir. 2011)). Under those circumstances the court declined to

apply the continuing-violations doctrine. Id.

The facts here are more similar to those circumstances that the Ninth Circuit has

indicated would not constitute a continuing violation. Here Plaintiff alleges Defendant opened

two pieces of legal mail in ten months. Plaintiff did not establish a continuing or consistent

pattern of opening legal mail: one of the envelopes that was opened was clearly marked “legal

mail” and included attorney information, the second envelope was not marked “legal mail” and

was from a state agency. Thus, Plaintiff failed to establish that the two pieces of mail were

opened under the same facts or policies. The Court, therefore, concludes the continuing

violations doctrine does not apply and Plaintiff failed to exhaust his claims related to the March

2024 letter.

II. Personal Involvement

Defendants move for summary judgment on Plaintiff’s claims against Defendants Miller

and Shupe on the basis that Plaintiff has failed to establish these Defendants personally

participated in the conduct underlying Plaintiff’s claims.

Section 1983 liability “arises only upon a showing of personal participation by the

defendant,” acting under color of state law, that deprived the plaintiff of a constitutional or

federal statutory right. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Supervisors are not

vicariously liable for unconstitutional acts done by the individuals they oversee, but “they can be

liable for their own conduct.” Peralta v. Dillard, 744 F.3d 1076, 1085 (9th Cir. 2014)(en banc).

A supervisor may be liable under Section 1983 only upon a showing of either (1) personal

involvement in the constitutional deprivation or (2) a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation. Starr v. Baca, 652 F.3d 1202,

1207 (9th Cir. 2011). “[G]overnment officials acting as supervisors only ‘cause’ a deprivation

for which they were not physically present if the constitutional injury can be ‘directly attributed’

to the supervisor's wrongful conduct or ‘training, supervision, or control of his subordinates.’”

Lyons v. Jackson, No. 5:25-CV-01720-JAK-SSC, 2025 WL 2495549, at *4 (C.D. Cal. Aug. 29,

2025)(quoting Starr, 652 F.3d at 1205–06).

Plaintiff does not allege that Miller or Shupe were physically present when the mail at

issue was opened. Rather, Plaintiff alleges Miller and Shupe may be held liable because they are

the “governing authority hired to implement” the rules of the Mail Processing Center and they

are “responsible for the hiring, training, and supervision” of Mail Processing Center Staff.

Defendant Miller is the Superintendent of SRCI. Plaintiff provides no evidence or authority for

his assertion that Miller is the governing authority hired to implement the rules of the mail center

or that he is responsible for the hiring, training, and supervision of mail center staff. Defendant

Shupe is an administrative specialist in the mail processing center. Plaintiff points to no evidence

of Shupe’s job duties, authority, or responsibilities or evidence that Shupe is responsible for the

hiring, training, or supervision of mail processing staff.

Plaintiff asserts Shupe and Miller responded to his grievance appeals for the May 2023

letter and, therefore, they can be held liable under § 1983 because they were on notice of

potential constitutional violations but did nothing to correct them. The causal connection for

supervisory liability under § 1983 can be established by “setting in motion a series of acts by

others,” or by “knowingly refusing to terminate a series of acts by others which the supervisor

knew or reasonably should have known would cause others to inflict a constitutional injury[.]”

Starr, 652 F.3d at 1207–08 (simplified). “The necessary fact, though, is that the supervisor knew

about the violation or a risk of violation before the incident occurred or while it is ongoing.

There is no supervisory liability under section 1983 for officials who learn of past constitutional

violations.” Moore v. Thurnau, No. 2:21-CV-00483-YY, 2024 WL 5340463, at *5 (D. Or. Oct.

3, 2024), report and recommendation adopted sub nom. Moore v. Cain, No. 2:21-CV-00483-YY,

2025 WL 239093 (D. Or. Jan. 17, 2025)(citing Salas v. Nichols, No. 4:17-cv-00663-JST, 2017

WL 2834061, at *9 (N.D. Cal. June 30, 2017)(dismissing claims against supervisory defendants

who merely reviewed post-violation grievances because such evidence only established that the

defendants were “on notice regarding alleged past constitutional violations, and not on notice

regarding ongoing constitutional violations”)). See also Hayes v. ICC-CCA, No. 1:12-CV-00351-

BLW, 2018 WL 4208850, at *7 (D. Idaho Sept. 4, 2018), aff'd sub nom. Hayes v. Idaho Corr.

Ctr., 812 F. App'x 568 (9th Cir. 2020)(granting the defendants’ motion for summary judgment

on the basis that there was “no evidence from which a reasonable factfinder could conclude that

Defendant Burke directed her staff to open Plaintiff's legal mail or that she was aware of a

problem with mailroom staff opening legal mail and yet failed to act to correct or prevent that

problem). Plaintiff’s evidence that Shupe and Miller responded to his grievances regarding his

mail is not sufficient to establish that either of these defendants caused plaintiff's alleged

constitutional injury. See Green v. Link, No. 2:19-cv-01324-JAM-KJN, 2019 WL 4033884, at *4

(E.D. Cal. Aug. 27, 2019)(“[T]he act of writing a letter or otherwise notifying such officials after

the alleged violation has taken place does not demonstrate such officials’ involvement in the

alleged violation.”)).

Plaintiff has not established Miller or Shupe were personally involved in or caused the

alleged deprivation of Plaintiff’s rights. The Court, therefore, grants Defendant’s Motion as to

Miller and Shupe.

III. Sixth Amendment

Plaintiff alleges that Defendants violated his right to assistance of counsel under the Sixth

Amendment when they opened the mail at issue. The Sixth Amendment guarantees the

assistance of counsel in “all criminal prosecutions,” but “does not govern civil cases.” Turner v.

Rogers, 564 U.S. 431, 441 (2011). See also Wolff, 418 U.S. at 576 (recognizing the Sixth

Amendment’s “reach is only to protect the attorney-client relationship from intrusion in the

criminal setting”); Mangiaracina v. Penzone, 849 F.3d 1191 (holding the Sixth Amendment

protects the right of an AIC to be present while legal mail relating to criminal proceedings is

opened); Evans v. Gower, No. 2:17-cv-01162-MK, 2022 WL 3226968, at *10 (D. Or. Aug. 10,

2022)(“All mail at issue is alleged to have been related to civil matters. As such, Defendants’

motion [for summary judgment] is granted as to the Sixth Amendment claim).

The mail at issue here was related to a parole board proceeding for which there is no

Sixth Amendment right to counsel. See, e.g., West v. Williams, No. CV 24-5199 DOC (AS),

2024 WL 5410446, at *3 (C.D. Cal. Nov. 18, 2024)(“Plaintiff has not, and cannot, state a Sixth

Amendment claim . . . since ‘[t]he Sixth Amendment does not apply to parole revocation

proceedings[,]’”)(quoting United States v. Spangle, 626 F.3d 488, 494 (9th Cir. 2010)). See also

Morrissey v. Brewer, 408 U.S. 471, 480 (1972)(“[T]he revocation of parole is not part of a

criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding

does not apply to parole revocations.”). Thus the Sixth Amendment does not apply here and the

Court grants Defendants’ Motion as to Plaintiff’s claim for violation of the Sixth Amendment.

IV. First Amendment

Plaintiff alleges Defendants violated his First Amendment rights when they opened the

May 2023 and March 2024 mail outside of his presence.

AICs “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, 1208 (9th Cir. 2017).

“Legal mail means mail marked as being from a specified attorney.” Johnson v. Nevada Dep't of

Corr., No. 2:20-CV-01914-APG-BNW, 2022 WL 17668041, at *3 (D. Nev. Dec. 12, 2022)

(citing Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Hayes, 849 F.3d at 1211).

“Consequently, prison officials need not treat mail sent between prisoners and government

agencies or officials as legal mail for constitutional purposes, and they may open and inspect

such mail outside an inmate’s presence.” Id. (citing Hayes, 849 F.3d at 1211). See also Keenan v.

Hall, 83 F.3d 1083, 1094 (9th Cir. 1996)(“Mail from the courts, as contrasted to mail from a

prisoner’s lawyer, is not legal mail.”). The March 2024 letter was not marked as legal mail and

was from the Oregon Board of Parole, not an attorney. The Court concludes that the March 2024

letter was not legal mail and, therefore, the fact that it was opened outside of Plaintiff’s presence

does not implicate the First Amendment.

With respect to the May 2023 letter, it is undisputed that it is legal mail and that it was

opened outside of Plaintiff’s presence. “[E]ven a single instance of improper reading of a

prisoner’s [legal] mail can give rise of a constitutional violation.” Mangiaracina, 849 F.3d at

1197 (emphasis added). “However, the negligent opening of an inmate's legal mail outside of the

inmate's presence does not rise to the level of a constitutional violation and, therefore, does not

violate § 1983.” Hayes, 2018 WL 4208850, at *4 (emphasis in original)(citing Stevenson v.

Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989)(“Stevenson has not shown, based on this record,

that [defendant's] conduct concerning plaintiff's mail rose beyond the level of mere

negligence.”)). Moreover, “an isolated incident of . . . mail interference without evidence of

improper motive does not violate [an AIC’s] First Amendment rights.” Canales v. Macomber,

No. 3:23-cv-01059-GPC-MSB, 2023 WL 8790273, at *3 (S.D. Cal. Dec. 19, 2023)(collecting

cases).

Plaintiff does not point to any evidence that the May 2023 letter was opened intentionally

nor does he provide evidence of an improper motive. Rather, the evidence reflects the May 2023

letter was opened at most, negligently or with a lack of due care, which is insufficient to support

a § 1983 claim for violation of the First Amendment. See Evans v. Oregon, No. 2:19-CV-00349-

SU, 2020 WL 5507827, at *3 (D. Or. Mar. 25, 2020), report and recommendation adopted, No.

2:19-CV-00349-SU, 2020 WL 2200850 (D. Or. May 6, 2020)(citing Wood v. Ostrander, 879

F.2d 583, 587 (9th Cir. 1989)(“‘mere negligence’ or the lack of due care cannot sustain a claim

under § 1983”)).

To the extent that Plaintiff intends his First Amendment claim to be one for right of

access to the courts, “[t]o establish a violation of the right of access to the courts, a prisoner must

establish that he or she has suffered an actual injury.” Nevada Dep't of Corr. v. Greene, 648 F.3d

1014, 1018 (9th Cir. 2011)(citing Lewis v. Casey, 518 U.S. 343, 349 (1996)). “Actual injury is a

jurisdictional requirement that flows from the standing doctrine and may not be waived.” Id. “It

is ‘actual prejudice with respect to contemplated or existing litigation, such as the inability to

meet a filing deadline or to present a claim.’” Id. (quoting Lewis, 518 U.S. at 348)(internal

quotation marks omitted)). Plaintiff does not point to any evidence that the opening of the May

2023 letter outside of his presence caused him to fail to meet a filing deadline, present a claim, or

suffer similar actual injury.

In addition, “[t]he right of access [to courts] is limited to complaints in direct criminal

appeals, habeas petitions, and civil rights actions.” Bounds v. Byrnes, No. 2:21-CV-00248-RMP,

2022 WL 291934, at *7 (E.D. Wash. Jan. 12, 2022)(citing Lewis, 518 U.S. at 354; Simmons v.

Sacramento Cty. Super. Ct., 318 F.3d 1156, 1159–60 (9th Cir. 2003)(“a prisoner has no

constitutional right of access to the courts to litigate an unrelated civil claim.”)). This right “does

not extend to parole consultation/suitability hearings.” Sherman v. Lizarraga, No. 219CV-

0569WBSKJNP, 2020 WL 731187, at *4 (E.D. Cal. Feb. 13, 2020), report and recommendation

adopted, No. 219CV0569WBSKJNP, 2020 WL 1234427 (E.D. Cal. Mar. 13, 2020). The May

2023 letter related to proceedings before the Oregon Board of Parole and the right of access to

courts does not extend to those matters.

In summary, the Court concludes that Plaintiff fails to establish a claim for violation of

the First Amendment. The Court, therefore, grants Defendants’ Motion as to this claim.

V. Dismissal with Prejudice

The Court has concluded that because Plaintiff did not file a grievance about the March

2024 letter, Plaintiff failed to exhaust ODOC’s grievance procedure as to that letter. Typically,

an unexhausted matter would be dismissed without prejudice. The Court, however, has also

concluded that the March 2024 letter was not legal mail and involved parole board matters,

therefore, its opening does not implicate the First or Sixth Amendment. Accordingly, the Court

concludes that exhaustion would be futile and dismissal of this entire matter with prejudice is

appropriate.

CONCLUSION

The Court GRANTS Defendants’ Motion for Summary Judgment, ECF 21.

IT IS SO ORDERED.

DATED: __S__e_p_t_e_m_b_e__r _2_4_, _2_0_2_5_ ___.

______________________________

MARCO A. HERNÁNDEZ

United States Senior District Judge