# Abraham v. Oregon Department of Corrections

> Court of Appeals for the Ninth Circuit · June 14, 2017 · 692 F. App'x 469

URL: https://www.frixlaw.com/law-library/cases/4177447

## Case

- **Full name:** Dwayne Edward ABRAHAM, Plaintiff-Appellant, v. OREGON DEPARTMENT OF CORRECTIONS, Et Al. 2575 Center St NE Salem or 97301; Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 14, 2017
- **Citations:** 692 F. App'x 469
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Hawkins, McKEOWN, Thomas
- **Nature of suit:** Prisoner
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DWAYNE EDWARD ABRAHAM, No. 14-35879

Plaintiff - Appellant, D.C. No. 2:13-cv-00827-AC

v.
MEMORANDUM*
OREGON DEPARTMENT OF
CORRECTIONS, et al. 2575 Center st NE
Salem Or 97301; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding

Submitted June 9, 2017**

Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.

Dwayne Edward Abraham, a former Oregon state prisoner, appeals pro se the

district court’s summary judgment grant in his 42 U.S.C. § 1983 action alleging

federal and state law claims related to an early release program. Reviewing de novo,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989), we have jurisdiction under 28

U.S.C. § 1291, and we affirm.

There was no error in granting summary judgment on Abraham’s § 1983 claims

for damages against the Oregon Department of Corrections and state officials acting

in their official capacities. The Eleventh Amendment bars those claims, see Brown

v. Or. Dep't of Corr., 751 F.3d 983, 989 (9th Cir. 2014), and Oregon did not waive its

Eleventh Amendment immunity to suit in federal court by enacting the Oregon Tort

Claims Act, see Webber v. First Student, Inc., 928 F. Supp. 2d 1244, 1269 (D. Or.

2013).

Moreover, there was no error in granting summary judgment on the basis of

qualified immunity to the state officials sued in their individual capacities. Qualified

immunity protects “state officials from money damages unless a plaintiff pleads facts

showing (1) that the official violated a statutory or constitutional right, and (2) that the

right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-

Kidd, 563 U.S. 731, 735 (2011) (citation omitted). Because it would not have been

clear to every reasonable official that Oregon Administrative Rule 291-062-0140

(2005) was unlawful, the state officials here did not violate a “clearly established”

statutory or constitutional right. See id.; see also Shinault v. Hawks, 782 F.3d 1053,

1059 (9th Cir. 2015) (“[P]rocedural due process requirements can rarely be considered

2
clearly established at least in the absence of closely corresponding factual and legal

precedent.”) (internal quotation marks and citation omitted).

Finally, there was no abuse of discretion in denying Abraham leave to file a

second amended complaint. See Chodos v. W. Publ'g Co., 292 F.3d 992, 1003 (9th

Cir. 2002). Abraham’s motions for appointment of counsel, filed on August 10, 2015,

August 28, 2015, and September 24, 2015, are denied.

AFFIRMED.

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4177447. Public record. Not legal advice.