Opinion
Civil No. 02-1399-MO.
May 25, 2004
OPINION AND ORDER
BACKGROUND
Plaintiff seeks redress from this court for the postponement of his parole release date and his medium security custody classification. Plaintiff asks for immediate release on parole, monetary damages, and/or a reduced security classification that would allow him to participate in various prison programs that now exclude him (CR 2, Plaintiff's Complaint). Plaintiff also seeks declaratory relief for violations of the American with Disabilities Act (ADA). Plaintiff's ADA claims have been dismissed and this court will not entertain further discussion of those claims (CR 45, Order, Nov. 4, 2003). Defendants have moved for summary judgment on plaintiff's other claims. For the reasons stated below, defendants' motion for summary judgment is GRANTED.
"CR" denotes Clerk's Record.
1. Postponement of Parole
Plaintiff was convicted of murder on April 22, 1985 and sentenced to life imprisonment (CR 41, Defendants' Ex. 101, att. 1; CR 51, Plaintiff's Ex. 41). He is currently, and at all times relevant has been, incarcerated at the Snake River Correctional Institution, operated by the Oregon Department of Corrections (ODOC).In October 1985, the Board of Parole and Post-Prison Supervision (the "Board") held a hearing and set an initial parole release date of December 12, 1998 (CR 41, Defendants' Ex. 101, att. 3; CR 51, Plaintiff's Ex. 36). In July 1990, the Board revised plaintiff's parole date to February 1, 1998 (CR 51, Plaintiff's Ex. 25). In October 1993, the Board again revised plaintiff's parole date to December 1, 1995 (CR 51, Plaintiff's Ex. 26). Beginning in 1995, the Board conducted exit interview hearings every two years on plaintiff's possible parole (CR 41, Defendants' Ex. 101, ¶ 8). The Board concluded after each hearing to postpone plaintiff's parole for two more years (CR 51, Plaintiff's Exs. 27, 30, 31). In May 2001, the Board conducted an exit interview and postponed plaintiff's parole for at least two years (CR 41, Defendants' Ex. 101, att. 7). The Board stated:
Based on the Doctor's report and diagnosis, coupled with all the information that the board is considering, the board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community.Id. (capitalization altered).
The doctor's report referenced by the Board's decision was conducted in April of 2001 (CR 41, Defendants' Ex. 101, att. 6). The report suggested that plaintiff's potential for dangerous behavior was low. Id. at 6. However, the report described plaintiff's personality disorder with narcissistic and antisocial features, his impulsive and adventurous tendencies, and his difficulty with authority. In addition, plaintiff's score on the Hare Psychopathy Checklist-Revised indicated that he shared many characteristics with Hare's classic psychopath. Id.; (CR 41, Defendants' Ex. 101, att. 9).
The Board also considered other information in plaintiff's file (CR 41, Defendants' Ex. 101, ¶ 9). This information included the Judgment and Sentencing Order from plaintiff's trial, plaintiff's presentence report, and his past criminal record. In the sentencing order, the trial judge described aggravating factors, based on evidence at trial.
That the defendant was significantly involved in the use of illicit drugs and the pattern of said use was present at the time of the offense for which the defendant is being sentenced, and that the victim was brutally beaten by the defendant prior to the victim's death caused by strangulation.
(CR 41, Defendants' Ex. 101, att. 1).
The presentence report included numerous references to plaintiff's violent nature (CR 41, Defendants' Ex. 101, att. 2). Among other acts, plaintiff was physically abusive to his ex-wives. Id. at 16. According to the report, defendant was "a brutal man who viciously beat a young lady, who was a family friend and then killed her by strangling her with a cord." Id. at 15. Plaintiff's criminal record also indicated that he had been convicted of lewd conduct in connection with a minor in 1970. Id. at 17. Based on the doctor's report and this other information in plaintiff's file, the Board postponed plaintiff's parole release date.
Plaintiff filed an administrative review request, complaining that the Board had failed to cite particular facts to support a finding of substantial danger to others (CR 41, Defendants' Ex. 101, att. 8). Plaintiff pointed out that the psychological report had not specifically identified plaintiff as mentally ill. Further, plaintiff asserted that the Board had failed to follow the applicable rules and that the Board unfairly focused on the original conviction rather than plaintiff's subsequent good behavior. Plaintiff also requested to be civilly committed for an observation period in order to determine his dangerousness. Plaintiff's requests for review and civil commitment were denied (CR 41, Defendants' Ex. 101, att. 9).
In response to plaintiff's requests, the Board issued an Administrative Review Response. Id. The response explained the applicable rules to plaintiff and demonstrated that the Board had followed proper procedures. In particular, the letter explained that the Board, not a psychologist, had discretion to decide whether plaintiff suffered from a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community." Id. Further, the explanation distinguished between the legal standard being applied by the Board for parole release and that used to civilly commit a prisoner.
In May 2003, the Board conducted another exit interview and again postponed plaintiff's parole release date (CR 41, Defendants' Ex. 101, att. 11). The Board relied on a psychological evaluation conducted in March 2003 (CR 41, Defendants' Ex. 101, att. 10). The evaluation noted some improvement in plaintiff's personality and behavior, but overall the result was much the same as 2001. The Board also relied on the same information the Board noted in 2001 and postponed plaintiff's parole release for an additional two years (CR 41, Defendants' Ex. 101, att. 11).
Plaintiff filed an administrative review request, contesting the Board's findings (CR 41, Defendants' Ex. 101, 12). Plaintiff's request was denied by the Board (CR 41, Defendants Ex. 101, 13). The Board explained that the Board may use a psychological evaluation in conjunction with other information in determining whether plaintiff should be paroled. The Board reviewed the psychologist's findings regarding plaintiff's personality disorder, psychopathy, and suspicious and hostile attitude. In particular, the Board pointed out that plaintiff had not accepted responsibility for the murder for which he had been convicted.
[Y]ou are just coming around to accepting some responsibility for the murder of Barbara Bates. You are now saying that your involvement only applies to your failure to protect her and admitting that you exhibited particularly poor judgment during the murder. In the past, you have denied specific responsibility for causing her death. . . . You murdered a woman that you are slowly admitting to killing and the psychological testing still finds you to be suspicious and hostile. . . . Despite the advancements you have made, you still have not risen to the level where the board can find you no longer suffer from a present severe emotional disturbance such as to constitute a danger to the health and safety of the community.Id.
Plaintiff now complains that postponement of his parole deprived him of his right to due process under the Fourteenth Amendment (CR 2, Plaintiff's Complaint, p. 3). Plaintiff also alleges that the Board's actions constitute ex post facto application of law against plaintiff. Plaintiff asks the court to grant him immediate parole. Id. at 23. Further, plaintiff asks for $150,000 in damages.
2. Classification as Medium Security Prisoner
Much of plaintiff's allegations, assertions, and offered evidence regarding the classification issue include references to his ADA claims and alleged disabled status. These issues have been decided and will not be addressed in this opinion (CR 45, Order, Nov. 4, 2003). Rather, this opinion will focus on the facts surrounding plaintiff's requests for minimum security classification and the denial of those requests.
At the start of his incarceration, plaintiff was initially placed in close custody, which continued at least until June 1993 (CR 51, Plaintiff's Ex. 21). Eventually, his custody classification was reduced to medium, where it has remained. On April 17, 1996, plaintiff was denied reclassification to minimum security custody (CR 51, Plaintiff's Ex. 2). Superintendent Armenakis stated in his letter:
Your custody was recently updated at your 6-month review on 4-11-96. Although you scored minimum, an override to medium was requested based on the fact that you previously received a negative psychological evaluation and the Parole Board deferred consideration of your release for an additional 24 months. The Parole Board has again scheduled you for an Exit Interview, with an updated Psychological Evaluation, in November 1997. In compliance with Department policy in such cases, your custody has been overridden to medium.
(CR 51, Plaintiff Ex. 1).
In May 1996, plaintiff asked the Classification and Transfer Division to reconsider its decision (CR 51, Plaintiff's Ex. 5). His request was denied. Plaintiff's subsequent requests for minimum security custody have all been denied (CR 51, Plaintiff's Ex. 8).
Besides the negative psychological evaluation, plaintiff's reclassification requests were also denied because of the time remaining on his sentence (CR 51, Plaintiff's Ex. 8, p. 4; Plaintiff's Ex. 15). A 1998 memo from the administrator of the Classification and Transfer Unit stated the department's policy:
Since December 1994, the Department's policy has been to override to Medium custody those inmates who scored Minimum and were scheduled for an Exit Interview, with or without a Psych ordered, under various conditions and circumstances. . . . As with any inmate, a custody override is discretionary and based on valid penological concerns which have been articulated and documented in the file.
(CR 51, Plaintiff's Ex. 1).
Plaintiff complains that this policy statement changed the nature of his confinement and punished him ex post facto (CR 2, Plaintiff's Complaint). Plaintiff also alleges that his custody classification denies him due process of law under the Fourteenth Amendment.
The calculation of plaintiff's time left to serve affected more than his custody classification. For example, in May 1996, plaintiff was denied transfer to the Mill Creek Correctional Facility (CR 51, Plaintiff's Ex. 6). The letter of denial indicates that plaintiff would not have been transferred even if his classification was reduced to minimum security. According to the letter, the Mill Creek Facility only accepts inmates with less than three years to serve. Plaintiff, with a sentence of life imprisonment, was ineligible for transfer.
In May 1999, plaintiff urged the Oregon Department of Corrections to use his "projected parole release date" to calculate the time remaining on his sentence (CR 51, Plaintiff's Ex. 8, p. 4). Plaintiff also objected to his denied access to certain programs due to eligibility requirements unrelated to his remaining sentence or classification (CR 51, Plaintiff's Exs. 7, 34).
DISCUSSION
In order for defendants to prevail on their motion for summary judgment, this court must find that no genuine issue of material fact has been raised by plaintiff. Fed.R.Civ.Pro. 56(c). Summary judgment will not be granted if a reasonable jury could find for the plaintiff based on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable inferences from the evidence presented will be drawn in the light most favorable to plaintiff. In addition, this court views plaintiff's complaints in the best possible light because he proceeds pro se.Balistreri v. Pacifica Policy Dept., 901 F.2d 696, 699 (9th Cir. 1988). Plaintiff's pleadings have been liberally construed so as to present his best possible arguments. I will first address the statute of limitations, then turn to the merits.
I. Statute of Limitations
"Section 1983 does not contain a statute of limitations." Fink v. Shedler, 192 F.3d 911, 914 (1999 9th Cir.) cert. denied 529 U.S. 1117 (2000). "Rather, federal courts apply the forum state's personal injury statute of limitations for section 1983 claims."Id.; see Wilson v. Garcia, 471 U.S. 261, 276 (1985). In Oregon, the applicable statute of limitations for plaintiff's claims is ORS 12.110(1), which provides a two year statute of limitations. Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989); Davis v. Harvey, 789 F.2d 1332, 1333 (9th Cir. 1986).
Accordingly, this court will not entertain any claims by plaintiff relating to injuries suffered more than two years prior to the filing of his complaint. The initial complaint was prepared on September 25, 2002, and received on October 15, 2002 (CR 2). If we assume that plaintiff mailed his complaint the day he signed it, any claims relating to injuries suffered prior to September 25, 2000, are time barred. Cooper, 871 F.2d at 105. Plaintiff's alleged injuries relating to his current imprisonment due to postponements of his parole release date and his custodial classification since September 25, 2000 are not barred by the statute of limitations.
Turning to the substance of plaintiff's claims, I will address: plaintiff's due process claims including those claims related to (a) postponement of his parole release date and (b) his security classification; plaintiff's other constitutional claims including his claims based on Art. I, § 10, cl. 1 of the U.S. Constitution (the Contracts Clause), ex post facto violations, the Eighth Amendment, and Equal Protection under the Fourteenth Amendment; and defendants' assertion of qualified immunity.
II. Plaintiff's Due Process Claims
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. First, this court must determine whether plaintiff has been deprived of a liberty or property interest protected by the Constitution. "Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States."Hewitt v. Helms, 459 U.S. 460, 466-67 (1983) overruled in part by Sandin v. Conner, 515 U.S. 483, 484 (1995). Next, this court must determine "whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
a. Postponement of Parole Release Date
Postponement of his parole did not violate plaintiff's right to due process under the 14th Amendment. First, plaintiff, as a prisoner, "has no federal constitutional right to parole."Bermudez v. Duenas, 936 F.2d 1064, 1067 (9th Cir. 1991). However, Oregon law may create a property or liberty interest in parole. Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir. 1985) ("A state or territory may create a constitutionally protected liberty interest by establishing regulatory measures that impose substantive limitations on the exercise of official discretion."). "A protected liberty interest may be created by statutes, administrative regulations, or published prison policy, rules, and regulations" that "use specific, mandatory language." Bermudez, 936 F.2d at 1067.
The State of Oregon established procedures to regulate the granting of parole. It is not necessary for this court to analyze whether plaintiff had a protected liberty interest created by those procedures. O'Bremski v. Maass, 915 F.2d 418 (9th Cir. 1990) cert. denied Obremski v. Maass, 498 U.S. 1096 (1991) (Declining to decide whether prison regulations governing parole release dates created a liberty interest.). Assuming that plaintiff does have a legitimate liberty interest created by Oregon law, the Board abided by the procedure set out in Oregon law; plaintiff was not denied due process.
Under current Oregon law, the Parole Board has discretion to postpone the paroling of a prisoner if he or she has a "present emotional disturbance such as to constitute a danger to the health or safety of the community." ORS 144.125(3). In such a circumstance, "the board may order the postponement of the scheduled parole release until a specified future date." Id. At the time of plaintiff's conviction and sentencing in 1985, the statute stated:
If a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner, the [parole] board may order the postponement of the scheduled parole release until a specified future date.
ORS 144.125(3) (1981).
In 1998, the Oregon Court of Appeals held that the current version of ORS 144.125(3) did not require a formal finding by a psychologist or psychiatrist. Weidner v. Armenakis, 959 P.2d 623, 626 (Or.App. 1998), withdrawn by order July 17, 1998, reasoning reaffirmed and readopted Merrill v. Johnson, 964 P.2d 284 (Or.App. 1998), review denied 977 P.2d 1170 (Or. 1998). Rather, the court in Weidner held that the test in question was a legal, not a medical, one. 959 P.2d at 626. The court reasoned that the statute ultimately required a judgment call by the Board, not a mental health professional. Id. In Godleske v. Morrow, 984 P.2d 339, 340-341 (Or.App. 1999) review denied 10 P.3d 983 (Or. 2000), the Oregon Court of Appeals equated the 1981 version of the statute with the current version. This court finds the reasoning in Weidner and Godleske persuasive and determinative of plaintiff's claims. The Board was not required under ORS 144.125(3) and Oregon case law to depend solely on the psychological evaluation of plaintiff in determining whether he suffered from a "present emotional disturbance such as to constitute a danger to the health or safety of the community." ORS 144.125(3).
Plaintiff relies on Peek v. Thompson to argue that defendants must depend on a psychological evaluation to determine whether he suffers from the emotional disturbance described in ORS 144.125(3). Peek, 980 P.2d 178 (1999) review dismissed 994 P.2d 130 (Or. 1999). In Peek, the prisoner/plaintiff successfully argued that the parole board was required by its own administrative rules to depend on a psychological evaluation before finding him ineligible for parole under ORS 144.125(3).Peek, 980 P.2d at 182. At issue was an administrative rule, O.A.R. 255-60-006(8) (1988), which obligated the Board to rely on the medical opinion of a psychologist or psychiatrist before postponing a scheduled parole release under ORS 144.125(3). Peek, 980 P.2d at 182; O.A.R. 255-60-006 (1988).
The relevant portions of the rule stated:
(7) The Board may order a psychiatric/psychological report anytime prior to release. If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may consider deferring parole release until a specified future date. (8) If the evaluation does not make a finding of severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parole release date and set parole conditions.
However, plaintiff errs in his reliance on Peek. The applicable rule for the Board's decision in plaintiff's case was the rule applied at the time of his conviction. The relevant administrative rule was different in 1985, at the time of plaintiff's conviction, than in 1988, when Peek was decided. O.A.R. 255-60-005(4) (1982) provided:
If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may order the postponement of the scheduled parole release until a specified future date or until the prisoner or institution presents evidence that the emotional disturbance is over or is in remission[.]
From this language, I can find no requirement for the Board to rely exclusively on a psychological report when electing to postpone plaintiff's parole under ORS 144.125(3). The Board complied with Oregon statutory, regulatory, and case law; plaintiff was not denied due process of law.
In his pleadings, plaintiff conflates involuntary civil commitment with postponement of parole because of severe emotional disturbance (CR 5, pp. 1, 3). Some of the decisions that plaintiff relies upon to require reliance on psychological evaluation dealt with the civil commitment of prisoners. Drew v. Psychiatric Security Review Board, 909 P.2d 1211 (Or. 1996);Kansas v. Crane, 534 U.S. 407 (2002). Plaintiff is not civilly confined due to a mental infirmity; plaintiff is serving his criminal sentence for murder. Plaintiff is not entitled to the same protections afforded the mentally ill who are civilly committed for the protection of themselves and society.
In summary, though plaintiff may have a constitutionally protected liberty interest in his parole under Oregon law, he has been afforded due process of law by the members of the Board. There is no genuine issue of material fact as to whether the Board followed the applicable statutory, regulatory, and case law in plaintiff's case.
b. Medium Security Classification
Plaintiff complains that the Oregon Department of Corrections unconstitutionally maintains his security classification as medium rather than minimum. If plaintiff were placed in minimum custody, he claims he would be able to participate in many beneficial programs offered by the prison system. Plaintiff asserts that he has been deprived of those opportunities without due process of law.
Ordinarily, a prisoner has no constitutionally protected liberty interest in the classification of his confinement so long as his confinement comports with basic Due Process and Eighth Amendment guarantees. Giba v. Cook, 232 F. Supp.2d 1171, 1183 (D. Or. 2002) ("[A] prisoner has no constitutional right to a particular classification status and it is unnecessary for this court to compare the difference between the segregation units found in a medium and minimum security prison."); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). Plaintiff has introduced nothing to suggest that his incarceration in general violates either his fundamental rights implicit in ordered liberty or his right to be free from cruel and unusual punishment.
Plaintiff may, however, have a federal constitutional interest created by Oregon law governing the classification of inmates.Sandin v. Conner, 515 U.S. at 484 ("States may under certain circumstances create liberty interests which are protected by the Due Process Clause."); Montayne v. Haymes, 427 U.S. 236, 242 (1976) (the Due Process clause protects a prisoner's "right or justifiable expectation rooted in state law"); Meachum v. Fano, 427 U.S. 215, 226 (1976) reh'g denied 429 U.S. 873 (the Due Process Clause requires that a prisoner's "state-created right is not arbitrarily abrogated."). Plaintiff has a protected liberty interest if Oregon statutes or regulations place "substantive limitations" on the discretion of ODOC officials responsible for classifying inmates, "mandating the outcome to be reached upon a finding that the substantive predicates have been met." Kentucky Department of Corrections, 490 U.S. at 462 (1989).
In Sandin, the Court clarified and reigned in state-created liberty interests protected under the Fourteenth Amendment. 515 U.S. at 484. The Sandin Court expressed concern about the "involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at 482. The Court counseled federal judges to "afford appropriate deference and flexibility to state officials trying to manage a volatile environment."Id. at 482. Thus, "[u]nder Sandin, a prisoner possesses a liberty interest under the federal constitution when a change occurs in confinement that imposes an `atypical and significant hardship . . . in relation to the ordinary incidents of prison life.'"Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) ( quoting Sandin, 515 U.S. at 484).
Plaintiff asserts that denial of minimum security classification denies him valuable opportunities to reform his behavior. Plaintiff would doubtlessly benefit from such programs. However, the question before this court is whether plaintiff has substantiated his claim that denial of minimum security classification constitutes an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life."Sandin, 515 U.S. at 484.
This court holds that it does not. Plaintiff has presented no evidence demonstrating that his continued custody classification of medium security is an unusual hardship, given the ordinary incidents of prison life. While the programs that plaintiff desires to attend might be beneficial to plaintiff, their denial does not constitute an exceptional hardship.
Even assuming that plaintiff has a liberty interest in Oregon's classification regulations, defendants granted plaintiff due process of law. In Frost v. Agnos, a prisoner's assertion of improper custody classification was rejected because the court afforded "wide-ranging deference in the adoption of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." 152 F.3d 1124, 1130 (9th Cir. 1998); Bell v. Wolfish, 441 U.S. 520, 540 (1979). The court declined to scrutinize the prison's policies and granted summary judgment because "[n]othing in the record . . . suggest[ed] that the security classification system is not "reasonably related" to legitimate penological interests, and therefore, constitutional." Frost, 152 F.3d at 1130; see also Turner v. Safley, 482 U.S. 78, 89 (1987).
The Oregon penitentiary system classifies the security risks of prisoners according to a custody classification matrix. O.A.R. 291-104-005. Under the matrix system, an inmate is assigned a custody level of minimum, medium, close, or maximum. O.A.R. 291-104-0010(5). The appropriate level is determined by examining an inmate's public and institutional risk factors, including the time remaining on his sentence. O.A.R. 291-104-0010(4). In addition, any classification may be overridden by the Classification and Transfer Section when circumstances require a higher or lower classification. O.A.R. 291-104-0030.
In this case, ODOC officials continue to classify plaintiff as medium security because of his negative psychological report and the indeterminate length of time remaining on his sentence. The time remaining on his sentence is undetermined because plaintiff is sentenced to life in prison. Plaintiff complains that calculation of his release as indeterminate is flawed. However, as noted above, plaintiff's release date is subject to review by the parole board, and plaintiff has never been granted a firm release date. The length of his sentence — life — entitles plaintiff to no guarantees of early release.
The Supreme Court decisions above grant broad deference to prison administrators like ODOC and its officers and recognize the flexibility required to properly manage a prison. Frost, 152 F.3d at 1130. Officers of ODOC, including defendants, are entitled to promulgate reasonable directives regarding the calculation of release dates for purposes of security custody classification. ODOC has done so here. Plaintiff has failed to raise a genuine issue of material fact concerning his classification complaints.
III. Miscellaneous Pleadings
Plaintiff asserts various additional constitutional grounds for his § 1983 claim. This court will address each claim which can be reasonably inferred from plaintiff's pleadings and memoranda.
Plaintiff complains that defendants have interfered with plaintiff's contract with the State of Oregon to release plaintiff on parole. U.S. Const. Art. I, § 10, cl. 1. However, the State of Oregon did not enter into a contract with plaintiff. Prison regulations governing the parole and custody classifications of inmates, including O.A.R. 144.120(1), are not contracts between inmates and the State of Oregon; plaintiff did not enter into a contract with his jailers. Rather, the Oregon Department of Corrections promulgated regulations and informed plaintiff of these regulations. Defendants are entitled to summary judgment.
Turning to plaintiff's Ex Post Facto claim, "[a] state law violate[s] the Ex Post Facto Clause of the United States Constitution if it imposes punishment for an act that was not punishable when committed, or if it increases the amount of punishment beyond that authorized at the time the act was committed." Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993) cert. denied 516 U.S. 825 (1995); Weaver v. Graham, 450 U.S. 24, 28-29 (1981); see also Collins v. Youngblood, 497 U.S. 37 (1990); Carmell v. Texas, 529 U.S. 513 (2000). "InWeaver, the Supreme Court held that a law restricting an inmate's opportunity for earlier release violated the Ex Post Facto Clause." Powell, 998 F.2d at 713; Weaver, 450 U.S. at 33-34.
Plaintiff alleges that the Board applied a regulation subsequent to his conviction in postponing his parole release date. As has been explained, defendants applied the law applicable to plaintiff at the time of his conviction in postponing his parole release.
Plaintiff also alleges that ODOC officials violated the Ex Post Facto Clause by determining his security classification based on the 1994 memo that explained the calculation of time remaining on inmate's sentences for purposes of security classification. However, the memo was not an ex post facto declaration of law, but merely a clarification of existing regulations. As has been noted, prison officials have broad discretion to determine and adjust appropriate security measures. Plaintiff has produced no evidence to substantiate abuse of that discretion. Plaintiff alleges that Oregon prison officials are liable under § 1983 for violating his Eighth Amendment rights. In order for a government official to be liable under § 1983 and the Eighth Amendment, a prisoner must have faced a substantial risk of serious harm and the official must have deliberately disregarded that risk by failing to take reasonable steps. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff has not presented any evidence from which a reasonable jury could conclude that plaintiff faced a substantial risk of serious harm or that defendants disregarded such risk.
Plaintiff also alleges that postponement of his parole and his classification as a medium security prisoner violate his right to equal protection under the law. U.S. Const., Amend. XIV. Plaintiff, however, cannot substantiate this claim with any evidence that he was victimized because of some suspect classification. Absent any evidence of suspect classification, no jury could reasonably find that plaintiff's right to equal protection was violated. Further, the actions of the Parole Board and ODOC officials are explicitly justified by valid penological concerns.
IV. Defendants' Claims of Qualified Immunity
When considering qualified immunity, this court must address the threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). As has been explained, plaintiff has failed to allege facts sufficient to demonstrate a violation of his constitutional rights. That ends the inquiry.Saucier, 533 U.S. at 201 ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.").
CONCLUSION
In this § 1983 claim, plaintiff alleges that his constitutional rights have been violated because his parole release date has been postponed and because he has been confined in medium, rather than minimum, security custody. Even if plaintiff has a constitutionally cognizable liberty interest in his parole release, he was afforded due process of law. Further, plaintiff has no cognizable injury stemming from his custody classification. Even if plaintiff had a constitutional interest in his classification, plaintiff has failed to present evidence that defendants did not follow Oregon regulations or that defendants abused their broad discretion to maintain prison security and discipline. Plaintiff's other constitutional claims are also without merit. Defendant is entitled, as a matter of law, to summary judgment.
Defendants' Motion for Summary Judgment (#41) is therefore, GRANTED.
IT IS SO ORDERED.