Opinion
6:20-cv-00406-CL
10-05-2023
CAMERON A. NIGHTINGALE, Plaintiff, v. JEFFREY PARNELL, OSP Corrections Officer, Defendant.
OPINION AND ORDER
MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE
Plaintiff, an adult in the custody of the Oregon Department of Corrections (ODOC), brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging that Correctional Officer Parnell retaliated against him and deprived him of property in violation of the First, Eighth, and Fourteenth Amendments. The parties have consented to resolution of this action by magistrate judge and now move for summary judgment. For the reasons set forth below, Officer Parnell's Motion for Summary Judgment is GRANTED in part and DENIED in part, and Plaintiff's Motion for Summary Judgment is DENIED.
BACKGROUND
Plaintiff is an adult in custody (AIC) housed at the Oregon State Penitentiary (OSP). Pl.'s Decl. ¶ 3 (ECF No. 143). Plaintiff's claims arise from cell searches conducted by Officer Parnell in June of 2017 and November and December of 2018.
Plaintiff contends that on June 4, 2017, Officer Parnell searched his cell and falsely accused him of possessing tattoo paraphernalia and another AIC's medication. Id. ¶¶ 5-6. After a nurse confirmed that Plaintiff had been prescribed the medication in question, Plaintiff alleges that Officer Parnell “demanded” a confession for the tattoo paraphernalia and threatened to “fuck with” Plaintiff by repeatedly searching his cell and confiscating his property. Id. ¶¶ 6-7. Plaintiff refused to confess, and Officer Parnell allegedly took two of Plaintiff's “soda tickets” and threatened him with disciplinary sanctions and the loss of his prison job. Id. ¶¶ 8-9. Officer Parnell continued searching Plaintiff's cell and confiscated numerous items of personal property as “nuisance contraband.” Id. ¶¶ 5, 11; Parnell Decl. ¶ 4 (ECF No. 134).
As this Court ruled in a previous Order, any § 1983 claim arising from the June 4, 2017 search is time-barred. See Opinion and Order dated July 9, 2021, at 6-7 (ECF No. 34). However, the alleged circumstances of the June 4, 2017 search provide context for the subsequent cell searches and Plaintiff's claims of retaliation.
On June 11, 2017, Plaintiff spoke to Capt. Cataldo and complained about Officer Parnell's threats and confiscation of property. Pl.'s Decl. ¶ 15 & Ex. 1 at 1-2, 5. According to Plaintiff, Capt. Cataldo stated that he would speak to Officer Parnell. Id. ¶ 15.
On June 18, 2017, Officer Parnell conducted another search of Plaintiff's cell and again confiscated numerous items of personal property that allegedly violated ODOC rules. Parnell Decl. ¶ 5. Plaintiff alleges that Officer Parnell destroyed his television and “stole” $200 worth of property, including television cable parts and numerous food and toiletry items. Pl.'s Decl. ¶ 19.
Plaintiff contends that during this search, Officer Parnell told him that “Captain Cataldo was on vacation” and could not intervene. Id. & Ex. 2 at 9.
On June 20, 2017, Cpl. Kintz signed a “Shakedown Report” indicating that Plaintiff had possessed “Unauthorized Article(s)” including: “Excessive Tylenol/Ibuprofen in a diff. bottle, state employee supplies (markers, pens, clips, paper, transparent sheets, etc.) [and] glue in non glue containers.” Id. Ex. 2 at 5. The report further states that “Nuisance contraband” and “bottles containing wax, cleaning fluids” were “hot trashed” and “state property [was] given back to state employee supply.” Id. The report does not mention other items of property allegedly confiscated by Officer Parnell.
On July 1, 2017, Plaintiff filed Grievance OSP201707004 regarding the June 4, 2017 search and alleged that Officer Parnell falsely accused him of possessing “tat needles,” “demanded a confession,” and threatened to “fuck” with Plaintiff by continuing to search his cell and confiscate his property. Id. ¶ 16 & Ex. 1 at 1. Plaintiff also complained that Officer Parnell seized and destroyed property that Plaintiff was authorized to possess. Officer Parnell responded that the confiscated items were “nuisance contraband” and did not require a confiscation report. Pl.'s Decl. ¶ 17 & Ex. 1 at 4. Plaintiff's grievance appeals were denied. Id. Ex. 1 at 5-9.
On July 12, 2017, Plaintiff filed Grievance OSP201707027 regarding the June 18, 2017 search and the alleged loss of his property. Id. ¶ 23 & Ex. 2 at 1-4. Plaintiff alleged that Officer Parnell searched his cell and confiscated his property in retaliation for Plaintiff's complaints about the June 4, 2017 search. Id. In response, Officer Parnell denied Plaintiff's accusations and stated that Plaintiff was not authorized to possess “altered” items, property received from other AICs, and items that could be used to construct “escape devices.” Id. ¶¶ 25, 27 & Ex. 2 at 6. Plaintiff appealed the response, and the grievance process was suspended when Officer Parnell took medical leave from October 2017 to September 2018. Id. ¶ 29 & Ex. 2 at 712; Parnell Decl. ¶ 6.
On November 19, 2018, after Officer Parnell returned to duty, he called Plaintiff away from an institutional job to “address rumors that [Plaintiff] had been spreading regarding the purpose of [Officer Parnell's] medical leave.” Parnell Decl. ¶ 7; Pl.'s Decl. ¶ 30. Plaintiff contends that, during their conversation, Officer Parnell threatened to transfer Plaintiff to another institution if he continued pursuing grievances about Officer Parnell's conduct. Pl.'s Decl. ¶ 31. After speaking with Plaintiff, Officer Parnell conducted a search of Plaintiff's cell. No property was confiscated during this search.
Shortly afterward, Plaintiff complained about Officer Parnell's alleged threats and requested reinstatement of Grievance Appeal OSP201707027A. Id. ¶¶ 36-37 & Ex. 2 at 13.
On December 4, 2018, Grievance Appeal OSP201707027A was reinstated and forwarded for a response. Id. ¶ 38 & Ex. 2 at 13. The same day, Officer Parnell conducted another search of Plaintiff's cell, confiscated numerous items of personal property, and accused Plaintiff of possessing “escape devices.” Id. ¶ 38; Parnell Decl. ¶ 9. Office Parnell's accusation led to Plaintiff's placement in the disciplinary segregation unit (DSU) for twenty-five days. Pl.'s Decl. ¶ 40. Plaintiff maintains that Officer Parnell's allegations were false, and that Officer Parnell never issued a misconduct report or formally charged Plaintiff with a prison rules violation as required by ODOC regulations. Id.; Pl.'s Opp'n to Mot. Summ. J. at 15 (ECF No. 142); see Or. Admin. R. 291-105-0021(2),(3). Plaintiff further alleges that Officer Parnell failed to document the property he confiscated.
On December 10, 2018, Plaintiff filed Grievance OSP201812040 regarding the search of his cell on November 19, 2018. Pl.'s Decl. ¶ 41 & Ex. 3 at 1-2. Plaintiff alleged that Officer Parnell conducted the search in retaliation for his grievances and threatened him with transfer to another institution if he continued to grieve Officer's Parnell's conduct. Id. In response to this grievance, Officer Parnell stated that Plaintiff had repeatedly threatened him with grievances and lawsuits to avoid disciplinary sanctions and had improperly obtained Officer Parnell's confidential medical information. Id. Ex. 3 at 4-5. Officer Parnell claimed that he acted appropriately on November 19, 2018 and requested that “a conflict be put in place and this inmate moved to another ODOC facility ASAP.” Id. Ex. 3 at 5; see also Parnell Decl. ¶ 8. Plaintiff appealed his response.
After his release from DSU, Plaintiff retrieved his personal property from the OSP Property Room. Plaintiff claims that an itemized list of property was incomplete and that several items were missing. Pl.'s Decl. ¶ 48; Pl.'s Opp'n to Mot. Summ. J. at 15. Plaintiff requested a copy of the confiscation report documenting the December 4, 2018 search and was told that no report had been prepared. Pl.'s Decl. ¶ 49.
Shortly afterward, Plaintiff filed Grievance OSP201812077 regarding the December 4, 2018 search of his cell and Officer Parnell's allegedly false accusations against him. Id. ¶ 45 & Ex. 4 at 1-3. Plaintiff complained that Officer Parnell retaliated against him for reinstating Grievance Appeal OSP201707027A and emphasized that Officer Parnell did not prepare an incident report to support Plaintiff's alleged possession of escape devices. Id. In response, Officer Parnell stated that Plaintiff was simply held responsible for violating prison rules and was placed in DSU pursuant to the Officer in Charge's “discretion.” Id. Ex. 4 at 4. Plaintiff appealed.
Plaintiff also filed Grievance OSP201901045 regarding items of property that were allegedly missing after his release from DSU. Id. ¶ 50 & Ex. 5 at 1-4. Officer Parnell responded and stated that he was not responsible for the inventory of Plaintiff's property when he was sent to DSU. Id. ¶ 51 & Ex. 5 at 5. Plaintiff appealed Officer Parnell's response.
On March 7, 2019, OSP Superintendent Kelly responded to Grievance Appeals OSP201707027A, OSP201812040A, OSP201812077A, and OSP201901045A and informed Plaintiff that “there was no completed paperwork regarding items of property apparently confiscated” from his cell. Pl.'s Decl. Ex. 13. Superintendent Kelly directed Plaintiff to “work with” a captain to determine what property was missing and “resolve this issue.” Id. Superintendent Kelly advised that Plaintiff would not be informed whether Officer Parnell was disciplined because of Plaintiff's grievances. Id. Plaintiff appealed this response, stating that it did not address Officer's Parnell's allegedly retaliatory conduct. E.g., Id. Ex. 2 at 15. Plaintiff's appeals were denied.
Ultimately, ODOC admitted that “a DOC staff mishandled a substantial amount” of Plaintiff's property and resolved his grievances by providing $500 in compensation and allowing him to possess certain items while housed at OSP. Id. Exs. 7-8, 13-14.
On March 9, 2020, Plaintiff filed the instant lawsuit seeking compensatory and punitive damages for Officer Parnell's allegedly retaliatory conduct.
DISCUSSION
Plaintiff alleges that Officer Parnell retaliated against him for engaging in conduct protected by the First Amendment and subjected him to prison conditions rising to the level of cruel and unusual punishment under the Eighth Amendment. Both parties move for summary judgment on Plaintiff's claims.
To prevail on their respective motions for summary judgment, the parties must show that there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must present evidence of record, together with affidavits, if any, that demonstrate the absence of a disputed material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the burden shifts to the nonmoving party to set forth specific facts establishing a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); see Fed. R. Civ. P. 56(c)(1).
At summary judgment, the Court's function is not to weigh the evidence and make credibility determinations but to discern whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986). In so doing, the Court must construe the evidence and all reasonable inferences in favor of the nonmoving party. Id. Cross motions for summary judgment are evaluated separately, with the non-moving party for each motion given “the benefit of all reasonable inferences.” Am. Civil Liberties Union of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
A. First Amendment Retaliation Claim
Plaintiff claims that Officer Parnell subjected him to repeated cell searches, confiscated and destroyed his property, threatened him with transfer to another institution, and falsely accused him of rule violations in retaliation for Plaintiff's complaints and grievances about Officer Parnell's conduct.
To sustain a claim of First Amendment retaliation, Plaintiff must establish five elements. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). First, Plaintiff must show that he engaged in protected conduct. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); see also Blaisdell v. Frappiea, 729 F.3d 1237, 1242 (9th Cir. 2013). Plaintiff's grievances and complaints about Officer Parnell clearly fall within conduct protected by the First Amendment. See Jones v. Williams, 791 F.3d 1023, 1036 (9th Cir. 2015) (holding that an AIC's “complaints of discrimination to his supervisors and statements of intention to file suit were conduct protected by the First Amendment”); Watison, 668 F.3d at 1114 (“Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so.”); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (“It is well established that, among the rights they retain, prisoners have a First Amendment right to file prison grievances.”).
Second, Plaintiff must establish that Officer Parnell took “adverse action” against him. Rhodes, 408 F.3d at 567. The record reflects that Officer Parnell searched Plaintiff's cell, confiscated Plaintiff's property, sought Plaintiff's transfer to another ODOC institution, and accused Plaintiff of rule violations that led to disciplinary segregation. See Pl.'s Decl. ¶¶ 19, 3031, 38, 40 & Exs. 2-5; Parnell Decl. ¶¶ 4-5, 7-9. These actions are “adverse” and sufficient to support claims of First Amendment retaliation. See Brodheim, 584 F.3d at 1270 (explaining that “the mere threat of harm can be adverse action”); Rhodes, 408 F.3d at 568 (finding that the adverse action element was satisfied by allegations that officers “arbitrarily confiscated, withheld, and eventually destroyed his property”); Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (finding that repeatedly threatening “transfer because of [the AIC's] complaints” supported a claim of retaliation); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (holding that false accusations issued against an AIC in retaliation for the exercise of First Amendment rights supported the jury's verdict in favor of the AIC).
Third, Plaintiff must show a “causal connection between the adverse action and the protected conduct,” Watison, 668 F.3d at 1114, and “show that his protected conduct was the substantial or motivating factor behind the defendant's conduct.” Brodheim, 584 F.3d at 1271 (internal quotation marks and citation omitted). Plaintiff must present “either direct evidence of retaliatory motive” or “circumstantial evidence of motive” such as: (1) the “proximity in time between protected speech and the alleged retaliation”; (2) the defendant's “expressed opposition to the speech”; or (3) “other evidence” suggesting that the “reasons proffered” to justify the adverse action “were false and pretextual.” McCollum v. Cal. Dep t of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002)); see also Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003) (finding that retaliatory motive may be shown by the timing of the alleged retaliation, its inconsistency with previous actions, and direct evidence of disdain towards an AIC's complaints). Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that Plaintiff's complaints and grievances were motivating factors behind Officer Parnell's actions.
Plaintiff states that he spoke to Capt. Cataldo on June 11, 2017 and complained that Officer Parnell made false accusations and threatened Plaintiff with harassment on June 4, 2017. Pl.'s Decl. ¶ 15. One week later, on July 18, 2017, Officer Parnell searched Plaintiff's cell and confiscated numerous items of property, while allegedly telling Plaintiff that Capt. Cataldo was “on vacation” and could not intervene. Id. ¶ 19 & Ex. 2 at 1-2, 9.
Although Officer Parnell disputes that he threatened Plaintiff, this Court cannot make credibility determinations and must construe all disputed facts and reasonable inferences in favor of Plaintiff. See Fuller v. Idaho Dep't of Corrs., 865 F.3d 1154, 1161 (9th Cir. 2017) (“In assessing whether a genuine issue of material fact exists for trial, we do not weigh the evidence, nor make factual or credibility determinations.”); Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017) (explaining that discounting an AIC's “testamentary” evidence “constitutes the sort of credibility finding properly left for a jury”); Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009) (“A judge must not grant summary judgment based on [a] determination that one set of facts is more believable than another.”). If Plaintiff's account is credited as true, Officer Parnell's threats, the timing of the June 18, 2017 search, and his statement about Capt. Cataldo being “on vacation” give rise to a reasonable inference that he searched Plaintiff's cell and confiscated his property because of Plaintiff's complaints.
Plaintiff also avers that on November 18, 2019, Officer Parnell threated to move Plaintiff to another institution if Plaintiff continued with his grievance appeals or made further complaints about Officer Parnell's conduct. Pl.'s Decl. ¶ 31 & Ex. 3 at 1-2. In response to Plaintiff's grievance, Officer Parnell referenced Plaintiff's complaints and grievances and requested that Plaintiff be transferred to another institution. Id. Ex. 3 at 4-5. When construed in Plaintiff's favor, these facts raise a genuine issue as to whether Plaintiff's protected conduct was “the ‘substantial' or ‘motivating' factor” behind Officer Parnell's transfer request. See Jones, 791 F.3d at 1036 (finding a genuine issue of fact where the officer's “daily failure form” cited the AIC's complaints and “threats to sue as reasons for its issuance”); Brodheim, 584 F.3d at 1271.
And finally, on December 4, 2017, the very same day that Plaintiff obtained reinstatement of Grievance Appeal OSP201707027A, Officer Parnell searched Plaintiff's cell, confiscated additional property items, and, according to Plaintiff, falsely accused him of possessing “escape devices.” While Officer Parnell avers that the Officer in Charge found that the devices warranted Plaintiff's transfer to DSU, Officer Parnell presents no evidence - such as a witness declaration or incident report - reflecting that the Officer in Charge decided to discipline Plaintiff independently of Officer Parnell's accusation. Further, Officer Parnell did not document the confiscated property or prepare a misconduct report explaining how it met the definition of an escape device. When construed in Plaintiff's favor, the totality of the circumstances raises a genuine issue of fact regarding the motivation behind Officer Parnell's conduct on December 4, 2018.
Fourth, Plaintiff must show that Officer Parnell's conduct chilled the exercise of his First Amendment activities. Rhodes, 408 F.3d at 567. Confiscating and destroying personal property, threatening institutional transfer, and imposing disciplinary segregation cause more than “minimal” harm and “would chill or silence a person of ordinary firmness from future First Amendment activities.” Id. at 567-69 & n.11; see also Packnett v. Wingo, 471 Fed. App'x 577, 578 (9th Cir. Mar. 6, 2012) (holding that the district court improperly dismissed an AIC's retaliation claim when he alleged that “his First Amendment rights were chilled when defendants searched his cell, seized his property, and otherwise retaliated against him for filing grievances”); Gomez, 255 F.3d at 1127 (finding that repeated threats of transfer sufficed to show a chilling effect).
Fifth and finally, Plaintiff must present evidence showing that Officer Parnell's conduct “did not reasonably advance a legitimate correctional goal.” Rhodes, 408 F.3d at 568; see also Johnson v. Ryan, 55 F.4th 1167, 1202 (9th Cir. 2022) (stating that the AIC “bears the burden of proving the absence of a legitimate correctional goal for the adverse action”). Officer Parnell argues that Plaintiff cannot meet this burden.
Specifically, Officer Parnell emphasizes that routine and unscheduled cell searches are authorized by ODOC and relevant Supreme Court precedent. See Or. Admin. Rule 291-0410020(1); see also Hudson v. Palmer, 468 U.S. 517, 526-29 (1984) (holding that routine, random cell searches are “essential to the effective security of penal institutions”). Officer Parnell contends that his confiscation of Plaintiff's unauthorized property on July 18, 2017 was “properly documented in a Shakedown Report” and other “items were properly disposed of as nuisance contraband.” Parnell Decl. ¶ 5. Officer Parnell also asserts that he requested Plaintiff's transfer to limit their interactions and conflicts and not for a retaliatory purpose. Id. ¶ 8. Finally, Officer Parnell maintains that the property he confiscated on December 4, 2018 could have been utilized as an escape device and the Officer in Charge determined that the items warranted Plaintiff's transfer to DSU. Id. ¶ 9. Thus, Officer Parnell argues that the searches of Plaintiff's cell and confiscation of items “reasonably believed to be contraband” advanced the legitimate penological goals of maintaining a safe prison environment, preventing the introduction of contraband, and ensuring compliance with ODOC rules. Def.'s Mem. in Support at 8-10 (ECF No. 133); Def.'s Reply at 2-3 (ECF No. 144).
Plaintiff disputes the characterization of his confiscated property as “nuisance contraband” and claims that he purchased most of the items from the canteen. Pl.'s Mem. in Support at 5 (ECF No. 132 at 7). Plaintiff argues that Officer Parnell's repeated threats of harassing searches, his failure to document Plaintiff's alleged rule violations and confiscated property, and ODOC's finding that he “mishandled” Plaintiff's property establish his retaliatory intent and belie any claim that his actions reasonably advanced institutional goals. Pl.'s Opp'n to Mot. Summ. J at 7, 10, 12, 14, 19.
Based on the current record, I cannot determine as a matter of law whether Officer Parnell's proffered reasons for his conduct were pretextual or reasonably advanced legitimate penological goals. Aside from the Shakedown Report identifying a few items seized on June 18, 2017, no evidence documents Plaintiff's confiscated property or explains why it constituted “contraband” under ODOC rules. For example, Plaintiff alleges that on June 18, 2017, Officer Parnell confiscated or destroyed numerous items of property, including food items and a television, that Plaintiff was authorized to possess. See Pl.'s Decl. ¶ 19 & Ex. 2 at 1-4. The
Shakedown Report was not prepared until June 20, 2017, and it does not reference numerous items that Plaintiff alleges were improperly confiscated or destroyed. Id. Ex. 2 at 5. Likewise, Officer Parnell prepared no confiscation or misconduct report for the items seized on December 4, 2018, and the record is insufficient to determine whether the items were reasonably subject to seizure as potential escape devices.
Moreover, ODOC ultimately found that a prison official - presumably Officer Parnell -“mishandled” a substantial amount of Plaintiff's property during one or more cell searches, and ODOC paid Plaintiff $500 in compensation for his lost property. Id. Ex 7-8, 13. When these facts are considered with Officer Parnell's alleged threats and the timing of the December 4 search, a reasonable jury could conclude that his confiscation of Plaintiff's property was retaliatory and did not reasonably advance legitimate correctional goals. See Johnson, 55 F.4th at 1202 (explaining that “the presence of a genuine dispute of material fact with respect to a retaliatory motive means that Defendants' general justification for the action” was potentially “pretextual and not a reasonable advancement” of the asserted penological goal).
According to Plaintiff, on May 13, 2019, he signed a Property Loss Settlement Agreement “which listed every item stolen by defendant during all three searches of Plaintiff's cell.” Pl.'s Opp'n to Mot. Summ. J. at 8; see also Pl.'s Decl. Exs. 7, 13-14.
Questions of fact and determinations of credibility also preclude summary judgment regarding Officer Parnell's alleged threat to transfer Plaintiff to another ODOC institution. The record reflects that Officer Parnell did, in fact, seek Plaintiff's transfer, in part because he viewed Plaintiff's complaints and grievances as manipulative and threatening. Pl.'s Decl. Ex. 3 at 4-5. While Officer Parnell maintains that he requested the transfer to “limit” his interactions with Plaintiff, it is for the trier of fact to decide whether Officer Parnell's request was motivated by retaliatory animus or legitimate penological goals. Parnell Decl. ¶ 8.
The same is true of Plaintiff's claim that Officer Parnell falsely accused Plaintiff of possessing escape devices on December 4, 2018 and instigated his transfer to DSU for twenty-five days. As noted above, Officer Parnell prepared no report describing what property was confiscated and why it violated ODOC rules as an escape device. Further, Plaintiff was never charged with an ODOC rules violation despite being held in DSU for twenty-five days, leading to a reasonable inference that Officer Parnell's accusation was not adequately supported by the evidence. When these facts and all reasonable inferences are construed in Plaintiff's favor, genuine issues of fact exist as to whether Officer Parnell's accusation was false and retaliatory.
For these same reasons, Plaintiff is not entitled to summary judgment. If Officer Parnell's statements are credited and the evidence is construed in his favor, he did not act with retaliatory intent and his actions advanced the legitimate goals of ensuring institutional safety and enforcing ODOC rules.
In sum, whether Officer Parnell unlawfully retaliated against Plaintiff essentially boils down to a credibility contest, and this Court cannot make credibility determinations on summary judgment. Accordingly, the parties' motions for summary judgment on Plaintiff's First Amendment claim are denied.
B. Eighth Amendment Claim
Plaintiff also claims that Officer Parnell's harassing conduct constituted cruel and unusual punishment under the Eighth Amendment.
To prove a violation of the Eighth Amendment, a plaintiff must “objectively show that he was deprived of something ‘sufficiently serious,' and make a subjective showing that the deprivation occurred with deliberate indifference to the inmate's health or safety.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate indifference requires evidence that “prison officials were aware of a ‘substantial risk of serious harm' to an AIC's health or safety” and “had no ‘reasonable' justification for the deprivation, in spite of that risk.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994)). “The circumstances, nature, and duration” of the alleged deprivation “must be considered in determining whether a constitutional violation has occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000).
Plaintiff does not allege, and the record does not reflect, that Officer Parnell's conduct caused “a substantial risk of serious harm” to his health or safety or deprived him of “the minimal civilized measure of life's necessities.” Farmer, 511 U.S. at 834. Although Plaintiff alleges that he suffered an anxiety attack during the June 18, 2017 search, Plaintiff admittedly recovered in thirty minutes and cannot establish a substantial risk to his health. Pl.'s Decl. ¶ 20; Pl.'s Opp'n to Mot. Summ. J. at 10.
The Eighth Amendment also protects inmates from cell searches that are conducted for “calculated harassment unrelated to prison needs.” Hudson, 468 U.S. at 530; Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989). “Courts have found that frequent and retaliatory cell searches that ‘result in the violent dishevelment of [the prisoner's] cell' and cause the prisoner to suffer ‘fear, mental anguish, and misery,' constitute an Eight Amendment violation.” Perry v. Brevick, 2021 WL 352374, at *2 (E.D. Cal. Feb. 2, 2021) (quoting Scher v. Engelke, 943 F.2d 921, 924 (8th Cir. 1991) and citing cases).
Here, the evidence of record does not support a reasonable inference of frequent, calculated harassment sufficient to sustain an Eighth Amendment claim. At most, Officer Parnell conducted three cell searches within an eighteen-month period, one of which did not result in the confiscation of property, and the record does not reflect the “violent dishevelment” of Plaintiff's cell. Plaintiff does not present evidence of “obdurate or wanton” conduct resulting in “an unnecessary infliction of pain.” Vigliotto, 873 F.2d at 1203; see also Whitley v. Albers, 475 U.S. 312, 320 (1986) (stating that an Eighth Amendment claimant must generally “allege and prove the unnecessary and wanton infliction of pain”).
Accordingly, Officer Parnell's motion for summary judgment is granted on Plaintiff's Eighth Amendment claim.
C. Due Process Claim
In his response to Officer Parnell's motion, Plaintiff argues that his procedural due process rights were violated when his property was confiscated and he was placed in DSU without prior notice or hearing. Plaintiff's Complaint does not expressly include a procedural due process claim and he did not raise this claim in his own motion. Regardless, Plaintiff cannot establish a violation of his procedural due process rights.
Generally, the deprivation of a protected property interest requires notice and an opportunity to be heard. Zinermon v. Burch, 494 U.S. 113, 127 (1990). 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.” Id. at 128; see also Hudson, 468 U.S. at 533; Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam).
Here, Plaintiff alleges that Officer Parnell improperly confiscated his property and violated ODOC rules. In these circumstances, the Oregon Tort Claims Act provides Plaintiff with an adequate post-deprivation remedy for the unauthorized destruction of his property and satisfies his right to procedural due process. See Gutierrez v. Williams, 505 Fed. App'x 659, 660 (9th Cir. Jan. 17, 2013) (citing Or. Rev. Stat. § 30.260 et seq).
In the context of disciplinary actions, an AIC is entitled to procedural due process protections only when the sanction “implicates a protected liberty interest in some ‘unexpected manner' or imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Plaintiff's temporary placement in DSU did not impose an atypical hardship or implicate his liberty interests. See, e.g., May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (holding that placement in disciplinary segregation does not implicate a liberty interest because it “falls within the terms of confinement ordinarily contemplated by a sentence”); Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir. 2000) (placement in segregated housing pending a disciplinary hearing did not implicate a protected liberty interest).
Thus, to the extent Plaintiff alleges a procedural due process claim, he cannot establish a genuine issue of material fact for trial.
D. Qualified Immunity
Officer Parnell also moves for summary judgment on grounds of qualified immunity. “Qualified immunity shields a [public official] from suit under § 1983 unless “(1) the [official] violated a statutory or constitutional right, and (2) the right was clearly established at the time of the challenged conduct.” Thomas v. Dillard, 818 F.3d 864, 874 (9th Cir. 2016).
To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be “settled law,” which means it is dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive authority[.]'” It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.District of Columbia v. Wesby, 138 S.Ct. 577, 589-90 (2018) (citations omitted). Further, the asserted right must be “'clearly established in light of the specific context of the case' at the time of the events in question.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (citation omitted).
As explained above, if the evidence and all reasonable inferences are construed in Plaintiff's favor, a reasonably jury could find that Officer Parnell searched Plaintiff's cell, improperly confiscated his property, threatened him with transfer, and falsely accused him of rule violations because of Plaintiff's complaints and grievances. Further, as of June 2017, it was clearly established that the First Amendment specifically prohibited Officer Parnell's alleged retaliatory conduct. Rhodes, 408 F.3d at 569-70 (explaining that Ninth Circuit caselaw “is abundantly clear that the infliction of harms other than a total chilling effect can establish liability for [retaliatory] conduct” and allegations that prison officials “arbitrarily confiscated, withheld, and eventually destroyed property” in response to First Amendment activities stated a retaliation claim); Gomez, 255 F.3d at 1127 (finding that threatening “transfer because of [an AIC's] complaints” supported a First Amendment retaliation claim); Hines, 108 F.3d at 269 (explaining that false accusations against an AIC in retaliation for the exercise of constitutional rights will sustain a First Amendment retaliation claim); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (“[T]he prohibition against retaliatory punishment is ‘clearly established law' in the Ninth Circuit, for qualified immunity purposes.”); Smith v. Mendoza, 2021 WL 930706, at *17 (N.D. Cal. Mar. 10, 2021) (citing Rhodes and finding that it was “well-settled by the time of the cell search that an officer could not steal or damage a prisoner's property”).
Accordingly, a reasonable prison official in Officer Parnell's position would have known that the First Amendment prohibited retaliating against Plaintiff for his complaints and grievances by confiscating and destroying his personal property, threatening him with transfer, and falsely accusing him of prison rules. Officer Parnell fails to show that he is entitled to qualified immunity at the summary judgment stage.
E. Limitation on Damages
Finally, Officer Parnell argues that if any of Plaintiff's claims survive summary judgment, this Court should limit Plaintiff's damages because he cannot obtain emotional distress damages and ODOC has already compensated Plaintiff for the loss of his property.
The PLRA provides: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e). Any alleged physical injury “must be more than de minimus,” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002).
Plaintiff does not allege a physical injury arising from the searches of his cell, the confiscation of his property, or his placement in DSU. At most, Plaintiff alleges that he suffered an anxiety attack during the cell search on June 18, 2017, resulting in chest pains and a trip to the infirmary. Pl.'s Decl. ¶ 20 & Ex. 16. However, Plaintiff recovered in thirty minutes and alleges no acute, chronic, or recurring injury. Consequently, Plaintiff may not recover damages for mental or emotional injury.
However, Plaintiff may recover other compensatory damages, as well as nominal and punitive damages, arising from any retaliatory conduct and the alleged chilling effect on his First Amendment rights. E.g., Oliver, 289 F.3d at 630 (“To the extent [a prisoner] has actionable claims for compensatory, nominal or punitive damages - premised on violations of his Fourteenth Amendment rights, and not on any alleged mental or emotional injuries - we conclude the claims are not barred by 1997e(e).”); see also Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (“The deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have incurred.”); Hines, 108 F.3d at 269 (explaining that “the injury asserted is the retaliatory accusation's chilling effect on Hines' First Amendment rights”).
I recognize that Plaintiff's compensatory damages may be minimal because ODOC paid Plaintiff $500 for his lost property. However, I am not inclined to place a limit on Plaintiff's recoverable damages when the record is incomplete and questions of fact remain.
CONCLUSION
For the foregoing reasons, Officer Parnell's Motion for Summary Judgment (ECF No. 133) is DENIED with respect to Plaintiff's First Amendment claims and GRANTED in all other respects. Plaintiff's Motion for Summary Judgment (ECF No. 132) is DENIED.
Within thirty days from the date of this Opinion and Order, the parties shall confer and submit a status report indicating whether they wish to pursue meditation efforts or proceed to trial.
IT IS SO ORDERED.