JOHN V. ACOSTA, Magistrate Judge.
Pro se plaintiff Stephen Crittenden Howard ("Howard"), a prisoner currently incarcerated at Eastern Oregon Correctional Institution ("EOCI"), sues numerous state officials (the "State Defendants"), and JP Morgan Chase Bank, N.A. ("Chase") and Chase Branch Manager Roger Ernest ("Ernest") (collectively, the "Chase Defendants"), under 42 U.S.C. § 1983, alleging that the defendants acted in concert to deprive him of due process. The claim arises from disciplinary sanctions imposed on Howard after he sent multiple fraudulent letters to Chase from prison. Howard challenges that disciplinary ruling, arguing it was based on insufficient evidence and that he is being denied access to review the evidence against him. Presently before the court are the Chase Defendants' motion to dismiss, the State Defendants' motion for summary judgment, and Howard's two motions for partial summary judgment. For the reasons that follow, the Chase Defendants' and the State Defendants' motions should be granted, and Howard's motions should be denied.
On March 2, 2017, Ernest contacted EOCI Correctional Counselor Rhonda Riley ("Riley") to inform her that Howard had sent Chase over 15 letters, requesting that Chase send money, in amounts ranging from $5,000 to $100,000, from Howard's "piggy bank account" into his prison trust account. (Declaration of Heather Nevil, ECF No. 36 ("Nevil Decl."), ¶ 14; Ex. 3, at 1, 6-7, 9-23.) Chase had responded to Howard in a letter stating "[w]e have received your requests over the past 6 months to create cashier's checks in various amounts from the `Piggy Bank Account.' There is no such account and you do not have accounts with us. Please cease these fraudulent requests immediately." (Id. at 7.)
Five days later, then EOCI Correctional Officer Jon Mitchell ("Mitchell") searched Howard's cell and found 16 additional handwritten requests, addressed to Chase and seeking the transfer of thousands of dollars. (Id. at 4.) Mitchell documented the search and its findings in a March 7, 2017, misconduct report," and EOCI Correctional Sergeant Paul Miller ("Miller") recommended Howard be placed in administrative segregation pending further administrative review of the incident. (Id.)
Mitchell subsequently charged Howard with violations of Oregon Department of Corrections ("ODOC") Rules of Prohibited Inmate Conduct prohibiting fraud, racketeering, and distribution, as set forth in OAR 291-105-0015. (See Nevil Decl., Ex. 2, at 5-11; Ex. 3, at 5.) "An inmate commits Fraud if he/she deceives another person or business in order to obtain money, property, or something of value." OR. ADMIN. R. 291-105-0015(3)(e). "An inmate commits Distribution I if he/she . . . has distributed to him/her any . . . money in the amount of $10 or more. . . ." OR. ADMIN. R. 291-105-0015(4)(f)(A). "An inmate commits Racketeering if he/she engages in an illicit activity that is carried out for the purpose of personal or financial gain through acts of crime, extortion of money or advantage by threats of force." OR. ADMIN. R. 291-105-0015(4)(n).
Howard received a notice of his hearing and inmate rights on March 9, 2017. (Nevil Decl., Ex. 3, at 26-27, 36.) The next day, ODOC Correctional Hearings Officer Heather Nevil ("Nevil") presided over Howard's disciplinary hearing. (Id. at ¶ 12; Ex. 3, at 1-3, 36-46.) At the hearing, Howard acknowledged receiving copies of the misconduct report, his notice of rights and notice of hearing, and a copy of the ODOC rules of prohibited conduct. (Id. at 36.)
Nevil read into evidence Ernest's letter, Riley's initial report documenting Ernest's call, the misconduct report, a letter from Howard to Riley about his letters to Chase, at least one of the letters Howard sent to Chase, and the additional letters found in Howard's cell. (Id. at 37-40.) Howard was given the opportunity to testify at the hearing. (Id. at 40-42.) He admitted to sending the letters, but testified he believed he had an account with Chase and he "was trying to find the account[,]" not to "deceive" or "harass[.]" (Id.) Nevil then read fully each rule Howard was accused of breaking, and concluded by asking Howard if he had any "mitigating factor[s]" to present before she made her ruling. (Id. at 43.) He did not. (Id.)
Nevil found Howard had violated the fraud and racketeering rules, but dismissed the distribution charge, because the "intent of that rule is to have the actual physical funds, money in hand," and Howard, conversely, had directed that the funds be transferred "to trust." (Id. at 43.) Nevil "merge[d]" the lesser fraud violation with the racketeering charge, sanctioning only on the latter. (Id.) Because Howard had not "ha[d] any major rule violations" in the past two years, Nevil recommended he be ordered to 60 days of disciplinary segregation, the lowest recommended sentence for that violation according to the administrative sanctioning grid, and 28 days without recreational yard access. (Id. at 1-3, 44; see sanctioning grid at Ex. 2, at 34 (recommending 60 to 120 days segregation and up to 28 days of "loss of privileges" for racketeering.).) Nevil suspended a discretionary $200 fine for the violation so long as Howard committed no "major rule" violations while in segregation, gave Howard a "verbal warning" not to "make contact with Chase []again regarding this," and ordered that the confiscated letters be "destroyed as contraband." (Id. at ¶ 17, Ex. 3, 1-3, 44.) The ODOC "Functional Unit Manager" subsequently approved that sanction recommendation. (Nevil Decl., Ex. 3, at 3.)
Howard requested an administrative review of his hearing case, and on April 7, 2017, the ODOC Inspector General affirmed the ruling, concluding "the finding was based upon a preponderance of the evidence and the sanction imposed was in accordance with the provisions set forth it the rule." (Nevil Decl., Ex. 4, at 1, 3-5.)
During the hearing, Howard asked if he could see a copy of Ernest's note. (Id. at 44.) Nevil stated she was not authorized to disclose materials from the "hearings packet," but explained how Howard could submit a public records request to the hearings administrator to review the document. (Id. at 44.) Howard subsequently submitted an ODOC public records request, seeking a transcript of the March 2, 2017 phone call between Ernest and Riley and "any calls, emails and letters regarding" his disciplinary case." (Pl.'s Second Mot. for Partial Summ. J., ECF No. 47, Exs. 17-20.) ODOC responded that there were no records of communications between Ernest and Riley, but that Howard could obtain a copy of the evidence in his disciplinary case, "2 copies of the confiscated evidence . . ., [and the] letter to [] Howard from [Ernest,]" once he submitted the fee to fulfil the request, totaling $1.33. (Id. at Ex. 20, 23.)
Howard then petitioned Oregon Attorney General Ellen Rosenblum ("Rosenblum") for disclosure of the records under Oregon's public records law, ORS §§ 192.410-192.505. (Initial Compl., Ex. 7, ECF No. 2-1, at 7-8.) A June 12, 2017 letter from Deputy Attorney General Fred Boss ("Boss") denied Howard's request under ORS § 192.450(1), which allows the Attorney General to review a disclosure petition only after the public body has denied a records request, because "ODOC ha[d] not denied any of [Howard's] records requests. . . ." (Id.)
One month later, Howard filed the instant suit, naming as defendants state officials Riley, Mitchell, Miller, Nevil, Boss, and Rosenblum, as well as ODOC Assistant Inspector General Melissa Nofziger ("Nofziger"), Legal Coordinator to the ODOC Inspector General Marica Ventura ("Ventura"), ODOC Special Investigation Unit Inspector Troy Holman ("Holman"), and ODOC Superintendent Jeri Taylor ("Taylor") (collectively, the "State Defendants"). (See First Am. Compl., ECF No. 6.) Howard also sues Chase, Ernest, and "unknown defendants [who] are such employees or agents of Chase whose identifies & names are unknown to [Howard]." (Id. at ¶ 18a.) He seeks economic damages and injunctive, and declaratory relief under 42 U.S.C. § 1983, alleging civil rights violations stemming from his disciplinary hearing and the sanctions imposed, and the government's responses to his records requests. (Id. at ¶ 1.) Howard also alleges the Chase Defendants and the State Defendants "conspired to injure and calumniate" Howard by working in concert to deprive him of his constitutional rights." (Id. at ¶¶ 55-59, 62-64.)
Four motions are currently pending before the court. First, the State defendants move for summary judgment on all claims against them. (State Defs.' Mot. for Summ. J., ECF No. 35.) Second and Third, Howard has filed two motions for "partial summary judgment." One appears to address the disciplinary hearing and sanctions, and the other concerns his records requests. (See Pl.'s "Second Motion for Partial Summary Judgment", ECF No. 42; Pl.'s "Amended Motion for Partial Summary Judgment," ("Pl.'s Am. Mot. for Summ. J."), ECF No. 47.) Fourth, the Chase Defendants move to dismiss the claim against them. (Chase Defs.' Mot. to Dismiss, ECF No. 56.) The court address each motion below.
Federal Rule of Civil Procedure ("Rule") 8(a) governs pleadings and calls for "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." FED. R. CIV. P. 8(a). The Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), addressed the pleading standard required to adequately state a claim under the Federal Rules of Civil Procedure. The Court emphasized the need to include sufficient facts in the pleading to give proper notice of the claim and its basis. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (brackets omitted). Even so, the court noted that "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and `that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A court considering a motion to dismiss must draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).
Since Twombly, the Supreme Court has made clear that the pleading standard announced therein is generally applicable to cases governed by the Rules, not just those cases involving antitrust allegations. As the Court held in Twombly, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (internal citations omitted); see also Villegas v. J.P. Morgan Chase & Co., No. C 09-00261 SBA, 2009 WL 605833, at *3 (N.D. Cal. Mar. 9, 2009) ("The Twombly standard, moreover, is of general application and is as easily applied to wage and hour litigation as antitrust."). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679.
Finally, courts generally have a duty to construe pro se pleadings liberally and "afford the [pro se] plaintiff the benefit of any doubt." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988); accord. Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal citations and quotations omitted). This duty applies to both pro se complaints and pro se motions. Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925 (9th Cir. 2003).
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). When different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
However, deference to the nonmoving party has limits. The nonmoving party must set forth "specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e) (emphasis added). The "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).
Chase Defendants move to dismiss the claim against them on two independently sufficient grounds. First, they argue they are not state actors subject to liability under § 1983. Second, they challenge that the factual allegations against the Chase Defendants in the complaint, even if true, fail to support a cognizable claim for relief.
Section 1983 "provides a mechanism for enforcing individual rights." Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). To prevail on a § 1983 claim, a plaintiff must establish that: (1) the defendants were persons acting under color of state law; and (2) their conduct deprived the plaintiff of a right or privilege secured by the Constitution or federal statute. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
"Like the state-action requirement of the Fourteenth Amendment, the state-action element of 42 U.S.C. § 1983 excludes from its coverage `merely private conduct, however discriminatory or wrongful.'" Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 305-306 (2001) (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); United States v. Price, 383 U.S. 787, 794 n. 7 (1966) ("In cases under § 1983, `under color' of law has consistently been treated as the same thing as the `state action' required under the Fourteenth Amendment.")). The Supreme Court has "used many different tests to identify state action, [and] they all have a common purpose. . . . to determine whether an action `can fairly be attributed to the State.'" Brentwood Acad., 531 U.S. at 306 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). "That a private entity performs a function which serves the public does not make its acts state action." Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).
Howard argues the Chase defendants are liable under § 1983 because they and the State Defendants were engaged in a conspiracy to deprive him of his due process rights. In his complaint, Howard suggests that the Chase and State Defendants somehow acted in concert by refusing to inform him after his first letter to Chase that his requests were fraudulent, implying that the defendants should have "question[ed Howard] in regards [t]o the prudence of transferring purported funds of such absurd amount(s) to a prison Trust Acct." (First Am. Compl. ¶ 55.) He also claims prison officials "direct[ed]" or "coach[ed]" Ernest to compose the March 2017 letter to Riley. (Id. at. ¶ 58.)
Howard fails to state a cognizable claim against either the Chase Defendants, or the State Defendants, to the extent the claim against the State Defendants rests on conspiracy allegations. First, the court rejects Howard's assertion that either Chase or the State Defendants had any duty to inform Howard that what he was doing was wrong before proceeding with preventative or disciplinary procedures. As such, it is unclear how Chase deprived Howard of a right or privilege secured by the Constitution or federal statute.
Second, the bare assertions in the complaint are unsupported by any specific factual allegation and consequently insufficient to state that the Chase Defendants' alleged conduct constituted state action or was under color of state law. Nothing in the complaint suggests any communication took place between Chase and EOCI officials prior to Ernest and Riley's phone call. Even taking all of Howard's allegations as true, Chase's conduct — refusing to transfer nonexistent funds, requesting that Howard cease communication with the bank, notifying EOCI about the letters, and returning the sent letters to EOCI — cannot fairly be attributed to the state. Rather, the complaint supports the contrary conclusion that Chase's conduct was merely private, aimed only at preventing any future fraudulent requests from Howard. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (holding plaintiff's "conclusory allegations that [her spouse and several attorneys and judges in her divorce case] had conspired to" deprive plaintiff of access to the courts by "keeping her in [] poverty" were insufficient to support § 1983 claim"); see also, Morris v. Hagen, No. 6:13-CV-00211-TC, 2013 WL 5723323, at *2 (D. Or. Oct. 21, 2013) (holding plaintiff's former attorney was not state actor subject to § 1983 liability when he merely performed advocacy functions.)
Because Howard fails to state a cognizable claim against the Chase Defendants, the motion to dismiss should be granted.
Though Howard's complaint references numerous, disparate legal theories, liberally construed, the crux of his claim is that he was denied the due process owed under the Fourteenth Amendment by the procedural processes of his disciplinary hearing, the responses to his public records requests, and the disciplinary sanctions imposed. The State Defendants defend, first, that no constitutional violation occurred; second, that they are entitled to qualified immunity; and third, that the claim is barred by the Eleventh Amendment.
The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty or property without due process of law." U.S. CONST. amend XIV, § 1. "Under the Fourteenth Amendment's Due Process Clause, a prisoner is entitled to certain due process protections when he is charged with a disciplinary violation." Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003) (citing Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974)). But "[l]awful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen," and though prisoners retain constitutional protections of religious freedom, access to the court, equal protection, and substantive due process, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff, 418 U.S. at 555-56.
In Wolff, the Supreme Court discussed the due process requirements of a prison disciplinary hearing. First, prison officials must provide the prisoner with written notice at least twenty-four hours before the hearing. Id. at 564. This notice must include the charges against the inmate, a written description of the evidence on which the factfinder relies, and the reason for taking disciplinary action. Id. Second, prison officials should allow the prisoner "to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Id. at 566. Third, if the prisoner is illiterate, or if the complexity of the case makes comprehension unlikely, prison officials should allow the prisoner to "seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff." Id. at 570. Additionally, prison officials must have "some evidence" to support their ultimate disciplinary decision. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455-56 (1985).
However, those procedural protections "adhere only when the disciplinary action implicates a protected liberty interest in some `unexpected matter' or imposes an `atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Serrano, 345 F.3d at 1078 (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995) (explaining such liberty interests "will be generally limited to freedom from restraint. . . .")). In contrast to a prisoner's loss of "good time credits," Superintendent, Mass. Corr. Inst., Walpole, 472 U.S. at 454-55, "[t]ypically, administrative segregation in and of itself does not implicate a protected liberty interest." Serrano, 345 F.3d at 1078; 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"); Kelley v. Peters, No. 6:16-CV-2400-AC, 2017 WL 8780133, at *5 (D. Or. Dec. 15, 2017), report and recommendation adopted, No. 6:16-CV-2400-AC, 2018 WL 1585775 (D. Or. Mar. 30, 2018) (no due process violation when inmate was ordered to administrative segregation after notice of and participation in disciplinary hearing and disciplinary ruling was based on "some evidence"); but see Brown v. Oregon Dep't of Corr., 751 F.3d 983, 985 (9th Cir. 2014) (holding inmate's 27-month "intensive" solitary segregation "with no meaningful review" violated due process). Nor does the loss of a specific prison job. West v. Beauclair, 338 F. App'x 716, 717 (9th Cir. 2009) (Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004)).
Howard does not challenge the propriety of the specific sanctions imposed on him or that he was denied adequate notice. Nor does he allege he could not understand the complexity or nature of his case. He asserts he was denied the opportunity to present his case fully, claims that he "was unable to get in any words of defense or denial or elicit any information on" the violations referenced, and disputes the adequacy of the evidence against him. (First Am. Compl. ¶ 36.)
The sanctions imposed here do not implicate a protected liberty interest sufficient to trigger the procedural protections outlined in Wolff. Howard had no earned time, or good time credits, available for retraction. His two-month administrative segregation and 28-day privileges loss, even including that of his prison job as a clerk, fall within the ordinary terms of confinement contemplated by his sentence and, therefore, under Ninth Circuit precedent do not represent atypical or significant hardship.
Yet even if the general procedural protections did "adhere" to Howard's disciplinary proceedings, the due process afforded to Howard was constitutionally adequate. The notice he was given and the disclosures made during the hearing comported with Wolff's directives. Additionally, the evidence on which Nevil relied to make her disciplinary ruling was sufficient to support the violations found and the sanctions imposed. Though Howard claims there was "no evidence presented" with regard to the accusations against him, (First Am. Compl. ¶ 36), elsewhere he notes that Nevil referenced both Ernest's letter to Howard requesting he stop contacting Chase and at least one of the "returned notes" Howard had sent to Chase. (Id. at ¶¶ 34, 35.) Furthermore, the hearing transcript reflects that Nevil also considered and read into evidence Ernest's letter to Riley, Riley's initial report, Mitchell's misconduct report, and several of Howard's letters to Chase. Howard was given the opportunity to testify on his behalf, including the specific opportunity to provide any mitigating evidence in his defense. Thus, the record shows that Nevil had not only "some" but substantial evidence on which to base her disciplinary ruling. Finally, Howard also received an administrative review of that ruling, which resulted in affirmance by the ODOC Inspector General.
Through the hearing and administrative review, Howard obtained meaningful review in his disciplinary case. Accordingly, Howard received all the due process to which he was entitled.
Howard also asserts that the withholding of the records he requested deprived him of due process. However, the Fourteenth Amendment does not provide a right to access government information. Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978); see, e.g., London v. City of Redlands, No. EDCV170185JFWKK, 2017 WL 3953984, at *3 (C.D. Cal. Sept. 5, 2017), report and recommendation adopted, No. EDCV170185JFWKK, 2017 WL 3927452 (C.D. Cal. Sept. 7, 2017) ("Plaintiff has failed to raise a Fourteenth Amendment procedural or substantive due process claim based on Defendant's failure to acknowledge his records request or provide his records in a timely fashion.").
Moreover, as both ODOC's and the Oregon Department of Justice's responses to Howard's requests explain, the records requested were withheld in accordance with Oregon public records law, ORS §§ 192.410-192.505. Howard does not assert, and nothing in the record suggests, that he ever completed the next step in the records request process — submitting to ODOC the fees required to fulfill the request. As to the records ODOC represents do not exist, Howard fails to provide any evidence to rebut that representation. Under Oregon law, only a "person denied the right to inspect or to receive a copy of any public record of a state agency may petition the Attorney General to review the public record. . . ." OR. REV. STAT. § 192.450 (later amended and now cited as OR. REV. STAT. § 192.411). Because ODOC did not deny any of Howard's requests, the Attorney General was not required to review or grant Howard's request.
Howard's complaint also includes allegations that ODOC staff failed to return all of the items confiscated from his cell after he returned from his segregation period. He claims his "papers, folders, & storage-envelopes had been ransacked," and that "bits & pieces" of "notes and letters . . . were no longer present." (First Am. Compl. ¶ 50.)
Again, this unsupported assertion, which fails even to identify what specific property went missing, is insufficient to raise a genuine issue of material fact that he was deprived of a constitutionally protected liberty or property interest. See e.g., Hoard v. Hartman, No. 2:13-CV-02161-AC, 2015 WL 9700537, at *7 (D. Or. Dec. 4, 2015), report and recommendation adopted, No. 2:13-CV-02161-AC, 2016 WL 146444 (D. Or. Jan. 12, 2016) (rejecting prisoner's deprivation of property claim when he "provide[d] no detail regarding what property he was deprived of, the reasons for the deprivation, or the negative effect such deprivation had on him.") Even liberally construed, Howard's allegations at most suggest negligent deprivation of property on the part of ODOC staff. The Supreme Court has held that merely negligent government deprivations of inmate property do not violate the Due Process Clause because the "random and unauthorized" nature of the action renders "predeprivation process [in such cases] impracticable." Hudson v. Palmer, 468 U.S. 517, 532-33 (1984). Thus, here too, Howard fails to show any unconstitutionality.
A court evaluating a claim of qualified immunity "must [] determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999).
Because no constitutional violation occurred, the State Defendants also are necessarily entitled to qualified immunity from the suit. As such, the court need not address the State Defendants' remaining Eleventh Amendment Immunity argument.
Howard fails to state sufficiently that the Chase Defendants engaged in any state action that would subject them to § 1983 liability or otherwise acted unlawfully. Accordingly, the Chase Defendants' motion to dismiss (ECF No. 56), should be GRANTED. Howard also fails to establish that any genuine issue of material fact exists as to whether any of the State Defendants unconstitutionally deprived him of due process. Therefore, the State Defendants' motion for summary judgment (ECF No. 35), should be GRANTED, and Howard's two motions for partial summary judgment (ECF Nos. 42, 47), should be DENIED.
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due September 5th, 2018. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
