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Douglas v. Noelle

June 5, 2009

DAMEION DOUGLAS, PLAINTIFF-APPELLANT,
v.
DAN NOELLE, SHERIFF; DAVIS, DEPUTY; HALL, DEPUTY; JAMES HARRINGTON, DEPUTY; LIVINGSTON, DEPUTY; MCCAIN, LIEUTENANT; MCLAVAIN, DEPUTY; SHOUT, SERGEANT, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding D.C. No. CV-04-01774-ALA.

The opinion of the court was delivered by: W. Fletcher, Circuit Judge

FOR PUBLICATION

Argued and Submitted November 19, 2008-Portland, Oregon.

Before: William A. Fletcher and Raymond C. Fisher, Circuit Judges, and Charles R. Breyer,*fn1 District Judge.

OPINION

Between July 2000 and December 2002, Dameion Douglas was in the custody of the Multnomah County Sheriff's Office in Portland, Oregon. In 2004, Douglas, acting pro se, filed a complaint under 42 U.S.C. § 1983, alleging that Sheriff's Office personnel (collectively "Defendants") violated his First Amendment rights on six occasions while he was in jail. The district court held that Douglas failed to file his complaint within the applicable statute of limitations and dismissed his complaint.

We reverse the district court and hold that the mailbox rule of Houston v. Lack, 487 U.S. 266 (1988), applies to a pro se prisoner's § 1983 complaint. We further hold that at least one of Douglas's claims was timely filed.

I. Background

Douglas's complaint contains six claims that Defendants violated his First Amendment rights by interfering with his exercise of religion and his right to petition the government for redress of grievances. Each of the claims is based on a particular episode of alleged interference, but Douglas contends that all of the claims are part of a pattern of illegal behavior by Defendants. All of the alleged events occurred while Douglas was in the custody of the Sheriff's Office, in either the Multnomah County Inverness Jail or the Multnomah County Detention Center. Douglas's allegations are as follows.*fn2

First, Douglas alleges that on July 14, 2000, Deputy Gilson McLavain pulled down Douglas's pants while he was praying. Douglas filed a grievance against McLavain under the jail's grievance procedures. He followed it "all the way up the chain of command" but received no relief.

Second, Douglas alleges that on May 19, 2001, he filed a grievance against Deputy James Harrington for making "very nasty sexually perverse" statements to him. Harrington took a number of retaliatory measures against Douglas in response to the filing of the grievance. On or about June 11, 2001, Harrington threw Douglas's religious materials out of his cell. On July 16, 2001, Harrington did not turn in Douglas's commissary form, and as a result, on July 18, 2001, Douglas did not "receive any commissary." On September 15, 2001, Harrington did not allow Douglas to take his Quran and other religious materials into "the hole," in violation of the jail's policy. Douglas filed a second grievance against Harrington for this conduct on September 19, 2001. On September 22, 2001, Harrington and Douglas exchanged words about the status of that grievance. Harrington then "wrote up" Douglas, claiming that Douglas had threatened him. Douglas denies that he used threatening language. Douglas received ten extra days in the hole as a result of Harrington's write-up. Harrington did not respond to the September 19, 2001, grievance until November 14, 2001, in response to Douglas filing a third grievance against Harrington to force him to respond to the September 19, 2001, grievance.

Third, Douglas alleges that on July 15, 2001, Deputy Ralph Davis made racially insensitive comments to him and to another black inmate. As they were entering the law library, Davis said, "Why yall [sic] bring these boys up here you know somebody already tore the pictures out of the books you know they can't read." The next day, Davis accused Douglas of masturbating after Douglas spilled cleaning solution on his pants. On July 18, 2001, Douglas filed a grievance against Davis for the racially insensitive comments Davis made on July 15. On July 20, Davis told Douglas that he would have him fired from his prison job for filing the grievance. Thirty minutes later, Douglas was fired from his job and was moved out of the work dorm. Douglas later learned that he was fired because Davis and Sergeant Douglas Shout gave him two "negative marks" on July 20, 2001.

Fourth, Douglas alleges that on October 30, 2001, Lieutenant Bruce McCain attempted to intimidate him in response to what appears to be a grievance Douglas had earlier filed against McCain. McCain told Douglas that the Sheriff's Office was considering charging inmates $5 to file a grievance and that Douglas was a "key reason" for the policy change.

Fifth, Douglas alleges that on April 29, 2002, the Sheriff's Office changed its grievance policy to charge inmates $5 to process a grievance. Douglas alleges that this change was made in retaliation against him for filing numerous grievances. The policy successfully discouraged Douglas from filing grievances because he could not afford the $5 fee.

Sixth, Douglas alleges that on December 1, 2002, during a cell search, Deputy John Hall threw away Douglas's religious materials. The jail's policy allows inmates to have unlimited religious materials in their cells. Douglas filed a grievance. Douglas alleges that Deputy Robert Livingston violated the Sheriff's Office's grievance procedures by answering the grievance against Hall before giving Hall an opportunity to respond to the grievance.

The Oregon Department of Corrections thereafter took custody of Douglas and transferred him to the Oregon Snake River Correctional Facility. He filed his § 1983 complaint while confined in the Snake River facility.

The district court dismissed Douglas's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim because he had not filed it within the applicable two-year statute of limitations. The events giving rise to Douglas's last claim occurred on December 1, 2002. The clerk of the court recorded Douglas's complaint as filed over two years later, on December 8, 2004. After the district court dismissed his complaint, Douglas, still acting pro se, filed a motion for reconsideration. He attached a statement describing generally the procedures followed by the Snake River Correctional Facility for legal mail and describing specifically the procedures followed in his case. We construe Douglas's statement in support of his motion for reconsideration as the functional equivalent of an amendment to his complaint.

According to Douglas, indigent inmates at the Snake River Correctional Facility physically hand their mail to prison authorities for mailing. Non-indigent inmates, however, may not do so. Non-indigent inmates must ...


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