Opinion
CV. 01-6089-KI.
September 23, 2004
Russell Martin O'Brien, OSP, Salem, Oregon, Pro Se Plaintiff.
Kathryn Anne Cottrell, Oregon Department of Justice, Trial Division, Salem, Oregon, Attorney for Defendants.
OPINION
Plaintiff Russell O'Brien, proceeding pro se, brings a civil rights action against several Oregon Department of Corrections ("ODOC") officers regarding his treatment while a prisoner at the Eastern Oregon Correctional Institution ("EOCI") in Pendleton, Oregon. Before the court is defendants' Renewed Motion for Summary Judgment (#81). For the following reasons, I grant the motion and dismiss this case with prejudice.
FACTS
Plaintiff had been incarcerated at EOCI but was transferred to the Oregon State Penitentiary ("OSP") in 1997 because he claimed he had been stabbed in the general population line movements. At some later point, he was transferred from OSP to the Oregon State Correctional Institution ("OSCI").
EOCI's medical staff and security staff concluded that plaintiff had in fact stabbed himself to expedite a transfer.
On October 21, 1998, he was transferred from OSCI back to EOCI because he was physically assaulted by his cellmate at OSCI and because other inmates were threatening physical violence against him at OSCI. It is this transfer and subsequent events at EOCI that provide the basis for plaintiff's claims in this action.
On November 2, 1998, Andrea Lewis, a Corrections Counselor at EOCI, interviewed plaintiff to review his incarceration plan and program needs and to explain the policies of EOCI. At this interview plaintiff expressed a belief that he had enemies at EOCI, and that if he were to remain at EOCI, "someone would end up killed." Plaintiff requested a transfer back to OSCI, even though he had just been transferred from OSCI to EOCI because of threats of violence against him at OSCI. Lewis notified the Shift Lieutenant, then Kenneth Crawford, of plaintiff's disclosure. Plaintiff also claims Lewis told him during that meeting that he would not be receiving a transfer.
Plaintiff claims that he met with Captain Crawford and Captain Crawford told him he would not be transferred. Captain Crawford does not remember any interactions with plaintiff about the requested transfer, but believes that this is because plaintiff would not provide information to substantiate his allegations of any threats. Captain Crawford also explains that if he had denied plaintiff's request, plaintiff could have filed a grievance on the matter, but plaintiff did not.
The issue of exhaustion of administrative remedies was addressed in this court's Opinion dated September 30, 2003, and will not be revisited here.
Plaintiff also claims he followed this up with an inmate communication form sent to the security staff at EOCI. He claims he was told in response that he would not be transferred and EOCI is the safest institution in Oregon. Again, defendants have no record of this communication, but for purposes of this motion I will assume it occurred.
During a substantial portion of plaintiff's stay at EOCI, he was placed in dormitory housing, where the officer can see the entire room and bunk assignment near the officer's station. Plaintiff was housed at EOCI for 324 days. Plaintiff spent 34 of those days in the EOCI Disciplinary Segregation Unit, where he was segregated from other inmates.
By November 19, 1998, plaintiff was moved from housing on the west side of the facility to the east side. EOCI has its inmate general housing divided into east and west sides of the facility. Once moved to the opposite side of the facility, the inmate has little contact with the other side's inmates. Plaintiff's placement at this time was in dormitory housing, and his particular bunk was less than ten feet from the housing unit officer's station.
One of the times plaintiff was placed in segregation was a several-day period following a suicide attempt by plaintiff in December 1998. During part of this time, plaintiff was placed on continuous "suicide watch."
Between January 1999 and April 1999, one or more inmates stole personal property and legal work from plaintiff and poured urine into his shoes and bedding. Staff never determined who was responsible. Plaintiff was given new bedding.
On March 31, 1999, Officer Merrill requested another inmate be moved off of the housing unit because this inmate was instigating problems with plaintiff and others.
On April 9, 1999, plaintiff and another inmate were implicated in the theft of a radio. EOCI staff noted on the log regarding that incident that there may be a "hit" put out on plaintiff. EOCI contends it did an investigation of these allegations and determined that the "hit" was directed toward another inmate with whom plaintiff associated.
On April 11, 1999, two inmates were observed harassing plaintiff. These inmates were given a verbal warning, as staff determined that the observed behavior was not considered to be sufficiently serious to warrant further action.
On April 12, 1999, plaintiff was assaulted by other inmates while the housing officer purportedly was performing routine checks on the unit. Officer Merrill reported hearing a commotion from the south end of the unit and returned to the area immediately. He found all inmates quiet and on their bunks except for plaintiff, who was found sitting up on his bunk with a slight cut on his right hand. Plaintiff would not tell the officer what happened to him and he did not report that other inmates had been threatening him. Nevertheless, plaintiff was moved to a different bunk, where he would be in close proximity to the officer's station.
EOCI staff believe that the assault arose out of plaintiff having reported that he had his legal papers stolen from his cell. Plaintiff also later told staff that he was concerned about the stolen papers, particularly because the papers stated plaintiff's crime of conviction. Plaintiff reported that the inmates used locks and socks or soap and socks for the assault.
Officer Merrill was told prior to his shift that plaintiff may be having issues with other inmates. Plaintiff claims that Officer Merrill had fallen asleep at some point during his shift, an allegation which Officer Merrill denies, but will be assumed at this point for purposes of this motion.
The medical records show that plaintiff complained of an upset stomach just prior to the April 12 assault. Plaintiff was also examined subsequent to the April 12 assault. Although plaintiff believed his hand and sternum were broken, the X-rays taken confirmed that they were not. Plaintiff was issued a splint and bandage.
In a lengthy report about his investigation submitted to the EOCI Security Manager on May 3, 1999, Captain Elton Mendenhall noted the following:
In my professional opinion there has been enough interviews conducted, and information received, substantiating the fact that there was a serious group assault on G-4 Housing Unit on April 12, 1999. This assault involved the use of dangerous, deadly weapons in the form of socks and soap, and socks and locks. It is my recommendation that additional interviews be conducted, in an effort to hold these inmates accountable. If allowed to get away with an assault of this nature, I believe we are sending a negative message to the inmate population, which could result in an increase of this type of activity. There has been enough consistent information received at this point that these inmates should be lodged in Segregation pending conclusion of this investigation. This would remove the threat from the general population, and eliminate any potential for retaliatory actions by these inmates during this investigation.
Defendants' Exhibit 102, Attachment 19 at 18.
At some point in April 1999, after the April 12 assault, Lt. June Marshall interviewed plaintiff. She told him at the interview that she was moving him from the east side of the housing to the west side of the housing because she believed he was spending a lot of time with another inmate who had a history of predatory homosexual activity, and she was concerned for plaintiff's safety. Plaintiff told Lt. Marshall that he did not want to move away from this other inmate who he believed was protecting him. Lt. Marshall ordered the transfer despite plaintiff's protestations in order to increase plaintiff's institutional safety. Plaintiff was moved into dormitory housing.
Plaintiff claims that he made a request for protective custody of Lt. Marshall and she denied the request. Lt. Marshall testifies that plaintiff never requested protective custody. Plaintiff also claims that at some point in mid-April he again made a request for protective custody of Captain George Beacham.
Under OAR 291-46-0020, an inmate can be placed in protective custody (administrative segregation) if: (1) the inmate consents in writing; (2) there is substantial documented evidence that protective custody is warranted; (3) there is no other reasonable alternative; and (4) the functional unit manager authorizes the assignment.
EOCI does not have a special housing unit designed for administrative segregation status. Instead, at EOCI, inmates requesting protective custody can either be moved to the opposite side of the facility from the threatening inmates, or be placed in the Disciplinary Segregation Unit on an administrative hold, where the inmate is separated from all other inmates pending a decision on where to house the inmate.
Plaintiff was assaulted again on April 27, 1999. This assault took place in the "dayroom" of the E3 unit, and continued into plaintiff's bunk area.
The medical examination revealed multiple contusions, abrasions, bite marks on the thumb, some joint stiffness in the knee, elbow and wrist, and swelling shut of the eyes later in the day. A subsequent X-ray revealed a fracture of plaintiff's right intra-orbital rim. The injuries were treated with Tylenol and ice.
Officer Richard Bermel reported that plaintiff was assaulted while he was on the other side of the unit conducting a shakedown.
On or about August 10, 1999, Captain Beacham interviewed plaintiff because he reported that he feared for his safety and was requesting a transfer. During the interview, however, plaintiff told Captain Beacham he was doing well on his housing assignment and that he no longer feared for his safety. Plaintiff does not deny that this is what he communicated to Captain Beacham. Captain Beacham concluded there was no valid basis for a transfer and suspected that plaintiff's earlier request may have been an attempt to manipulate the system to achieve a placement at an institution he preferred. Captain Beacham's notes are reflected in a memo dated August 25, 1999, directed to Superintendent Jean Hill.
On or about August 31, 1999, plaintiff asked his counselor that he be considered for transfer to Two Rivers Correctional Institution, located in Umatilla, Oregon, when the facility "open[ed] their doors to medium custody inmates." Def. Ex. 102 at 3.
Plaintiff's disciplinary records reflect that plaintiff was disciplined on numerous occasions in the short period of time he was incarcerated at EOCI. He was disciplined for behavior including stealing other inmates' canteen items, possessing contraband, disrespecting an officer, extorting another inmate and engaging in non-assaultive sexual activity.
On September 10, 1999, plaintiff was transferred back to OSCI. Defendants contend that plaintiff's poor institutional behavior had, in security staff's opinion, generated such ill will among other inmates that they were concerned about plaintiff's safety.
Plaintiff is currently housed at the Oregon State Penitentiary ("OSP") located in Salem, Oregon.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 375 (1999).
DISCUSSION
Plaintiff brings a claim under 42 U.S.C. § 1983 against several prison officials based on alleged Eighth Amendment violations. Plaintiff's theory is that in denying his transfer requests, failing to put plaintiff in protective custody, and allowing him to be assaulted, defendants have violated his constitutional right to be free from cruel and unusual punishment.
I. Eleventh Amendment Immunity
As a preliminary matter, defendants seek to dismiss the claims against them in their official capacities because they are barred by the Eleventh Amendment. "[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (citation omitted). The state cannot be sued in federal court absent a waiver of sovereign immunity, and the Court has ruled that section 1983 was not intended "to disregard the well-established immunity of a State being sued without its consent." Id. at 67. Plaintiff's official capacity claims are dismissed against all defendants.
"Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State." Id. at 71 n. 10 (internal quotations and citation omitted). Defendant concedes that his request for injunctive relief is moot, as he has been transferred out of EOCI, and he cannot show a real and immediate threat of injury in the future. See Los Angeles v. Lyons, 461 U.S. 95 (1983) (discussing the required showing for prospective injunctive relief). Plaintiff is not entitled to equitable relief.
Plaintiff has also sued defendants in their individual capacities. The Eleventh Amendment does not prevent suits against state officers for money damages to be paid out of the officers' own pockets. Kentucky v. Graham, 473 U.S. 159, 163-70 (1985) (discussing distinction between individual capacity and official capacity suits). The individuals' immunity to suit in their individual capacities is discussed below.
II. Individual Involvement
Defendants also argue that plaintiff's claims against all supervisory employees must fail. Liability under section 1983 arises only upon a showing of personal participation by the defendant in the alleged constitutional deprivation. Ortez v. Washington County, 88 F.3d 804, 809 (9th Cir. 1996). There is no respondeat superior liability under section 1983. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691-94 (1978). "A supervisor is only liable for constitutional violations of his subordinates if 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). The facts viewed in the light most favorable to plaintiff show personal involvement by each named defendant in one or more of the decisions at issue. Each defendant sued is alleged to have ignored plaintiff's purported requests for transfer or protective custody, denied such requests, or failed to protect plaintiff during one of the specific assaults at issue. I therefore reject this argument as a basis for summary judgment.
III. Qualified Immunity
Defendants move for summary judgment dismissing the claims against all defendants because they are entitled to qualified immunity. Plaintiff argues none of the defendants is entitled to qualified immunity because each acted with deliberate indifference to his safety.
A. Framework for Qualified Immunity Analysis
Qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The entitlement to qualified immunity "is an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As such, a defendant is entitled to a ruling on qualified immunity "early in the proceedings so that the costs and expenses of trial are voided where the defense is dispositive." Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)).
The first step in a qualified immunity analysis is to consider the materials submitted in support of and against the motion for summary judgment, and decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment. Saucier, 533 U.S. at 201. If no constitutional right would have been violated were the allegations established, the court need not engage in further inquiries concerning qualified immunity. Id.
If a constitutional violation could be made out on a favorable view of the submissions before the court, the next step is to ask whether the right was clearly established. Id. "This inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer his conduct was unlawful in the situation he confronted."Id. at 202.
If the law governing the state official's conduct was clearly established, the court must inquire whether a reasonable state official could have believed his conduct was lawful. Jeffers, 267 F.3d at 910. "Although a defendant's subjective intent is not relevant to the qualified immunity defense, his mental state is relevant where it is an element of the alleged constitutional violation." Id. at 911. As explained further below, in the context of qualified immunity against an Eighth Amendment claim for failure to protect or prevent harm, "a reasonable prison official understanding that he cannot disregard a substantial risk of harm, could know all of the facts, yet mistakenly, but reasonably, perceive that the exposure in any given situation was not that high." Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002). "In these circumstances, he would be entitled to qualified immunity." Id.
B. Standards for Eighth Amendment Claim
The first step in the qualified immunity analysis is to determine whether plaintiff's constitutional rights were violated. Plaintiff alleges a deprivation of his Eighth Amendment right to be free from cruel and unusual punishment.
The treatment a prisoner receives in prison and the conditions of his confinement are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). A prisoner may state a section 1983 claim under the Eighth Amendment against prison authorities who act with deliberate indifference to the threat of serious harm or injury by another prisoner. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). As the Supreme Court has explained,
The [Eighth] Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates[.] In particular, as the lower courts have uniformly held, and as we have assumed, prison officials have a duty to protect prisoners from violence at the hands of other prisoners. It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety.Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations and quotations omitted). A prison official violates a prisoner's Eighth Amendment rights only when two requirements are met. Id. (citing numerous cases establishing two-part Eighth Amendment inquiry). That is, an Eighth Amendment claim must satisfy both an objective and subjective inquiry. Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000).
1. Objective Inquiry
The objective element of the Eighth Amendment inquiry seeks to determine whether the deprivation was sufficiently serious.Wilson v. Seiter, 501 U.S. 294, 298 (1991). For a claim based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Helling, 509 U.S. at 35.
Defendants argue that plaintiff's claim fails because he does not allege that he has sustained sufficient injuries. Defendants rely on several cases that note an Eighth Amendment claim based on past harm must be premised on some type of actual injury.See, e.g., Hudson v. McMillian, 503 U.S. 1, 10 (1992) (noting in an excessive force case that the harm inflicted must be more than "de minimis"); Wilson v. Yaklich, 148 F.3d 596, 600 (6th Cir. 1998) (dismissing as frivolous a lawsuit brought by a prisoner who alleged that staff took no action to protect him after he received threats from the "Aryan Brotherhood;" finding that no Eighth Amendment claim lies when plaintiff makes "no allegation that he actually suffered any harm because of the defendants' conduct or that he is currently threatened with such harm").
The evidence shows that as a result of the two April 1999 assaults at issue, plaintiff suffered actual injuries sufficient to cause him to seek medical treatment. In Hudson, one of the cases on which defendants rely, the Court found that "the blows directed at [the plaintiff], which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes." Hudson, 503 U.S. at 10. Although the case is somewhat distinguishable because, as the Court notes, excessive force cases, conditions of confinement cases, and denial of medical care cases are all analyzed differently, id. at 8-9, I find it instructive on this issue. Many of plaintiff's injuries were similar in nature to those at issue in Hudson. Plaintiff's injuries did not appear to require extensive treatment and the record shows that he recovered well, but he was nonetheless violently assaulted by other inmates on two occasions, one involving a dangerous weapon. While the case law is less than clear about how serious an injury must be to meet the objective element of the Eighth Amendment inquiry, I find that plaintiff's injuries are sufficient in this case.
2. Subjective Inquiry
The subjective element requires a showing that the defendant acted with a sufficiently culpable state of mind. "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."Farmer, 511 U.S. at 837. Deliberate indifference for a failure to protect claim "does not require that the guard or official believe to a moral certainty that one inmate intends to attack another at a given place at a time certain before that officer is obligated to take steps to prevent such an assault," but it does require that the official "have more than a mere suspicion that the attack will occur." Berg, 794 F.2d at 459 (citation omitted). Deliberate indifference is evaluated in this context by considering "whether, in allegedly exposing the prisoner to danger, the defendant prison official(s) were guided by considerations of safety to other inmates, whether the official(s) took `prophylactic or preventive measures' to protect the prisoner, and whether less dangerous alternatives were in fact available." Id. at 462 (citation omitted).
Plaintiff has failed to offer evidence to support a finding that any of the named defendants acted with deliberate indifference. Defendants took numerous preventive measures with respect to where plaintiff was housed within EOCI. Defendants' attempts to keep plaintiff safe included transfer to different housing units, shifting between the east and west sides of the prison, and assignment to bunks that were in close proximity to officers' stations. The record also reflects that on the two occasions on which plaintiff was assaulted, EOCI security staff reacted promptly to stop the assault, followed up with an investigation, and attempted to segregate and sanction the assailants.
Although defendants do not address this issue in their briefing, one of the most significant allegations against any defendant is plaintiff's claim that defendant Merrill fell asleep on duty and failed to prevent the particular assailants from entering plaintiff's area on April 12, 1999, despite having been warned that plaintiff had conflicts with other inmates. Although defendants do not move to strike plaintiff's statements regarding Officer Merrill falling asleep, I question their admissibility. Plaintiff provides no basis for the court to determine whether plaintiff could see Officer Merrill from his cell, or any other grounds to establish that his conclusion about Officer Merrill is based on personal knowledge. Even if I accept plaintiff's version of facts, however, Officer Merrill's falling asleep briefly does not amount to deliberate indifference. Although Officer Merrill may have had reason to believe that plaintiff was not getting along with other inmates, plaintiff has failed to show that Officer Merrill had "more than a mere suspicion that the attack will occur." See Berg, 794 F.2d at 459. Additionally, simply showing that Officer Merrill was negligent in falling asleep is insufficient to show deliberate indifference. See Farmer, 511 U.S. at 835 (explaining that "deliberate indifference describes a state of mind more blameworthy than negligence"). See also Boddie v. New York State Dep't of Corrections, 1997 WL 482036 (S.D.N.Y. 1997) (holding that allegations that bus driver transporting prisoners was driving erratically and fell asleep at the wheel were sufficient to show only negligence, and therefore would not state an Eighth Amendment claim). Plaintiff has failed to show triable issues regarding Officer Merrill's state of mind.
Even if I were to find that plaintiff had shown that questions of fact exist as to Officer Merrill's state of mind, I must still consider whether it would have been clear to a reasonable officer that his conduct was unlawful. See Ford, 301 F.3d at 1045. In other words, questions of fact on the deliberate indifference inquiry do not result in the denial of qualified immunity; instead the court must proceed to the next steps in the analysis as set forth by the Supreme Court inSaucier. Id. at 1045, 1053.
Prior to the incident at issue, the law was clearly established by Farmer that if an officer knows of an excessive risk to inmate safety and infers from the facts of which he was aware that a substantial risk of harm exists, he would violate the law by disregarding it. See Id. at 1050. However, even if I assumed that Officer Merrill was intimately familiar with plaintiff's difficulties with other inmates that were known at the time, I could not find that a reasonable officer would have clearly understood that the risk of serious harm to plaintiff from not keeping constant watch on his cell was so high as to be constitutionally impermissible. The analysis would be the same with respect to Officer Bermel being in a different part of the unit when plaintiff was assaulted the second time. Thus, these officers would be entitled to qualified immunity.
Plaintiff also argues that defendants ignored his requests for protective custody. Defendants contend that at no time did plaintiff make an oral or written request for protective custody, but I will assume plaintiffs' version of the facts for this motion. Even if plaintiff had requested protective custody, plaintiff has not shown that the failure to place him in protective custody amounted to deliberate indifference. At EOCI, there is no segregated unit for protective custody. Rather, as explained above, if a request is made, a prisoner is either reassigned to a different place within the prison or placed within the Disciplinary Segregation Unit temporarily. This is in effect what plaintiff received.
This leads to plaintiff's specific complaints, which appear to form the heart of his challenge, that the failure of defendants to grant his transfer requests amounted to a violation of his Eighth Amendment rights. He argues that had he not been transferred from OSCI to EOCI to begin with, had he been transferred out of EOCI when he asked soon after his arrival, and had he been transferred out of EOCI when he asked again before and after his assault, he would not have been assaulted. Over the course of only a few years, plaintiff was transferred back and forth between three Oregon prisons, and at each location plaintiff asked for transfers to a different location, sometimes the one he came from, despite having been transferred out of that very facility for alleged security reasons. The Eighth Amendment does not provide plaintiff the right to move from institution to institution of his choosing. Plaintiff was ultimately granted the last transfer request he made of EOCI staff, but given all of the considerations at issue, I cannot conclude that in first trying other preventive measures before transferring plaintiff defendants acted with deliberate indifference.
Finally, the Ninth Circuit has noted that "the legal standard [of deliberate indifference] must not be applied to an idealized vision of prison life, but to the prison as it exists, and as prison official(s) are realistically capable of influencing."Berg, 794 F.2d at 462. I note that the evidence suggests plaintiff routinely drew negative attention to himself by bragging about his crime of conviction, which is a crime that does not engender support from other inmates, and engaged in behavior that appeared to generate considerable ill will among his inmates. While this does not relieve defendants of their obligations respecting plaintiff's Eighth Amendment rights, considering the picture of prison life painted by the evidence in this case, it supports the conclusion that the prison officials' continued attempts to address plaintiff's safety concerns were thwarted by plaintiff's own behavior.
Plaintiff has failed to show that triable issues exist as to whether any one of the defendants acted with deliberate indifference to his safety. Because I cannot find that defendants had the requisite states of mind to make out an Eighth Amendment violation, I will not proceed with the remaining steps in the qualified immunity analysis. Defendants are entitled to qualified immunity against plaintiff's section 1983 claim for damages.
IV. John Doe Defendants
Defendants move to dismiss the John Doe defendants originally listed on plaintiff's Complaint. Defendants argue that plaintiff has failed to establish through any discovery efforts that any other John Doe defendants exist. Defendants also argue that Officer Merrill should be dismissed because plaintiff has not identified which Officer Merrill is named in this action. Apparently, there is more than one individual with the last name Merrill employed by ODOC.
On April 11, 2002, after giving plaintiff several opportunities to amend his Complaint, I ordered that the Second Amended Complaint be dismissed as to some defendants and allowed to proceed as to others. The order dismissed the Second Amended Complaint as to the State of Oregon, the Oregon Department of Corrections, Jean Hill, John Doe Security Manager, and John Doe Assignment Captain. See April 11, 2002, Order (Docket # 19) at 5. The order also specifically provided that the action will go forward only as to the following defendants: Lewis, Beacham, Mendenhall, Marshall, Gillian, Merrill, and Bermel.Id. Thus, the court is unclear why the state defendants seek to dismiss any John Doe defendant, and why plaintiff is arguing against it, as any such defendant was previously dismissed from the case.
On May 9, 2002, I issued a separate order with respect to the defendant named Gillian. Plaintiff had been given leave to proceed in forma pauperis. On April 11, 2002, this court issued a Notice of Lawsuit and Request for Waiver of Service of Summons. On April 30, 2002, the Waiver of Service Form was returned by Assistant Attorney General Lynn Rennick, waiving service on behalf of all defendants except Sergeant Gillian. In their Answer, state defendants had denied that there was an individual named Gillian who worked for ODOC. My order of May 9, 2002, directed the Clerk of the Court to forward to plaintiff a summons and U.S. Marshal form, and directed plaintiff to complete the forms for defendant Gillian. I further ordered that once completed forms were received, the Marshal shall serve the summons and Complaint. The record indicates that plaintiff never filed the completed forms and Gillian was never served. In any event, plaintiff does not appear to be asserting any claims at this point against a defendant named Gillian.
With respect to defendant Merrill, defendants' evidence includes several memos authored by M. Merrill, which are clearly related to the events at issue in this case. Plaintiff's briefing also references M. Merrill in some places. It is clear from plaintiff's response that he was only asserting a claim against this particular Merrill. To the extent that defendants are contending ODOC employs two Merrills, both with the first initial M., I have already determined that plaintiff's allegations against the defendant named Merrill, whichever individual he is, do not support a finding of deliberate indifference.
CONCLUSION
Defendants' Renewed Motion for Summary Judgment (#81) is granted on the basis of qualified immunity. This case is dismissed with prejudice.