IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MARION

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1 // :0: PM CV 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MARION WILLIAM NELSON SCHULTZ, Plaintiff, vs. STATE OF OREGON, SUPERINTENDENT J. PREMO, OPERATIONS CAPTAIN T. WRIGHT, CORPORAL A. WILSON, CORRECTIONS OFFICER W. GOULD AND CORRECTIONS OFFICER SGT. J. HERRON Defendants. No. CV CIVIL COMPLAINT Negligence and Failure to Protect Claim Not Subject to Mandatory Arbitration Filing Fee: $1.00 Amount in Controversy: $0, Plaintiff, by and through his counsel, alleges as follows: INTRODUCTION 1. Plaintiff, William Nelson Schultz, a inmate at Mill Creek Correctional Institution in Salem, Oregon, was was assaulted on October th, by Nolan Briden, another inmate at Mill Creek, and seriously injured. The assault occurred at the Oregon State Penitentiary (OSP in Salem, Oregon, while both Mr. Schultz and inmate Briden were performing their work crew duties. On October th, Corporal A. Wilson, Mr. Schultz and inmate Briden s supervising officer, informed inmate Briden that Mr. Schultz had complained about inmate Jacob Homes. Inmate Holmes was Briden s close friend, co-defendant in a series of felony crimes resulting in both being sentenced to 0 months; and fellow Indian Power Organization (IPO gang member. Those complaints resulted in the removal of inmate Holmes from the Motor-Pool work crew. When Page 1 of CIVIL COMPLAINT Court Street NE

2 Cptl. Wilson divulged to inmate Briden Mr. Schultz s complaints about inmate Briden s friend, co-defendant and fellow gang member, Cpl. Wilson effectively assured that Mr. Schultz would be labeled a snitch and would be in serious danger of physical retribution. Less than a week later, on October th,, Cpl. Wilson ordered Mr. Schultz and inmate Briden to clean up an area of the prison grounds containing tools, bats, recyclables, and other items. The men were completely unsupervised. Inmate Briden picked up an aluminum baseball bat, snuck up to Mr. Schultz as Mr. Schultz carried recyclables up the loading dock stairway, and struck Mr. Schultz over the head with the baseball bat. After being struck once, Mr. Schultz ran toward the prison screaming for help. Inmate Briden caught up to Mr. Schultz and struck him in the head with the baseball bat a second time. Mr. Schultz collapsed, and inmate Briden was preparing to hit him again when two delivery truck drivers intervened and stopped the attack. This attack caused severe lacerations to Mr. Schultz s face, broke his teeth, and resulted in permanent damage to Mr. Schulz s facial structure, orbital nerve, and right eye. Mr. Schultz is now blind in his right eye and the damage to his orbital nerve causes him considerable pain. FACTS RELEVANT TO ALL CLAIMS. On July th, 0 Mr. Schultz was convicted of one count of Assault II; one count of Assault III; and one count of unlawful use of a weapon in Washington County Circuit Court case No. CO0CR. These convictions were a result of an incident that occurred when Mr. Schultz had just turned years old. He was sentenced to a 0 month term of imprisonment with the Department of Corrections, and had served almost the entirety of his sentence without issue. Page of CIVIL COMPLAINT Court Street NE

3 Mr. Schultz was only four months away from completing his sentence and being released when this attack occurred.. In October, Mr. Schultz was incarcerated at the Mill Creek Correctional Facility, a minimum security prison in Salem, Oregon. Mr. Schultz was assigned to the OSP Motor-Pool work crew, which consisted of other inmates and their crew supervisors. The work crew would go to various DOC properties to perform work tasks. Two of the other inmates in Mr. Schultz s work crew were Nolan Briden and Jacob Holmes, who were close friends and members of the same Native American gang, IPO. On or about October rd, Mr. Schultz and another inmate privately complained to their supervising officer, Corporal A. Wilson, that inmate Holmes was causing issues, bullying other crew members, and disrupting the work environment. Mr. Schultz only revealed the name of inmate Holmes after Cpl. Wilson repeatedly requested he confide who was not pulling their weight, and repeatedly reassured Mr. Schultz that the information would remain confidential, to protect Mr. Schultz and the other inmate from retaliation.. Corporal Wilson removed inmate Holmes from the Motor-Pool work detail the same day Mr. Schultz lodged his complaints. On or about October th, Mr. Schultz both overheard and witnessed a conversation between inmate Briden and Cpl. Wilson regarding Cpl. Wilson s decision to remove inmate Holmes from the work crew. Inmate Briden was angry about the removal of inmate Holmes from work crew and wanted to know why the decision was made. Mr. Schultz then heard Cpl. Wilson tell Inmate Briden that it was Mr. Schultz who complained several times about inmate Holmes, resulting in his removal from the work crew. Page of CIVIL COMPLAINT Court Street NE

4 . On October th,, Mr. Schultz s work crew was at OSP. Cpl. Wilson gave Mr. Schultz and inmate Briden a direct order to begin to clean up the recycling area of the OSP grounds. The recycling area had a multitude of potential dangerous materials, tools, and objects within it. Mr. Schultz was walking up the stairs to the loading dock when inmate Briden struck Mr. Schultz over the head with an aluminum baseball bat Briden had obtained from the recycling area. That first hit caused severe lacerations and bleeding, fractured several of Mr. Schultz s facial bones, and resulted in his right eye being blinded.. After the first hit, Mr. Schultz began running away from the recycling area and toward the prison tower. Neither Cpl. Wilson or the tower guard were in the area at the time the attack took place. As Mr. Schultz ran, he was shouting for help. Inmate Briden caught up to Mr. Schultz and struck him again across the head with the bat, causing Mr. Schultz to collapse in the yard. At that moment, two delivery truck drivers who had witnessed the second strike intervened and were able to stop Briden from striking Mr. Schultz again.. Mr. Schultz was severely injured by the attack. He had broken teeth, a fractured skull, fractured eye socket, fractured nasal canal, and fractured cheekbone. Mr. Schultz s right eye had a torn retina, torn optic nerve, and severe internal hemorrhaging. Additionally, Mr. Schultz had multiple lacerations to his face and skull which have resulted in permanent scarring on his face. Mr. Schultz s right eye is virtually blind, and has only % visual acuity. Following the attack, Mr. Schultz was transported to the Salem Hospital. He requested several times for his family to be contacted and informed about what happened, a request which was refused. Mr. Schultz had Page of CIVIL COMPLAINT Court Street NE

5 surgery on October th, to repair the orbital fracture and continue to provide post-trauma treatment. He was discharged from the Oregon State Hospital on October th, and taken to the OSP infirmary the same day.. Following his return to the OSP infirmary, Mr. Schultz s catheter was removed early, contrary to the discharge instructions of the hospital. Mr. Schultz was also not taken to the first ophthalmologist appointment that had been scheduled by Dr. Neaman, the plastic surgeon who had performed the surgery, to evaluate the extent of the damage to Mr. Schultz s right eye. When Mr. Schultz was finally taken to the appointment, he was referred to a retinal specialist. The first appointment with the retinal specialist was on November th,. The retinal specialist determined that there was permanent damage to Mr. Schultz s right eye retina and optic nerve, and that his vision in that eye was permanently damaged as well. Throughout the six weeks following Mr. Schultz s recovery from surgery he was supposed to be given eye medication multiple times a day. He was not given his required eye medication on approximately occasions.. Prior to the attack in September Mr. Schultz, while operating a forklift at the direction of Cpl. Wilson, hit a water line for the sprinkler system in a warehouse, causing severe flooding and damage. Mr. Schultz was honest with Cpl. Wilson s supervisor, Operations Supervisor Captain T. Wright, and admitted that he (Mr. Schultz often operated the forklift, at Cpl. Wilson s request, despite Cpl. Wilson knowing Mr. Schultz was not licensed to drive or to operate a forklift. Cpt. Wright was angry and made comments the following comments, regarding Mr. Schultz, that day: He is fucked Don t be surprised if you are not around Page of CIVIL COMPLAINT Court Street NE

6 tomorrow and Don t get him any dry clothes, let him suffer. Six days following the attack, Cpt. Wright called Mr. Schultz on the phone and at the conclusion of the conversation, commented that the attack on Mr. Schultz was karma for the warehouse accident.. Mr. Schultz was also the victim of an attack on March 1 st,, when he was assaulted in the OSP dining hall by Irish Pride gang member Timothy Tipton. Mr. Schultz was cited for misconduct and was placed in administrative segregation for days. Following the end of his punitive sanction, the segregation sergeant indicated either Mr. Schultz submit to voluntary administrative segregation or be transferred, because Mr. Schultz was not going to be safe in general population. Mr. Schultz was transferred, and later received paperwork related to the attack and contained within it was the statement that staff had prior knowledge that inmate Schultz was the target of a possible assault. Mr. Schultz had not known he was a possible target and prison officials had not done anything to protect him from the attack. Mr. Schultz, therefore, had been the target of a gang-inspired attack previously, and attack that was in fact carried out against him.. Mr. Schultz s prison term ended on February nd, and he was released from custody. Following his release, Mr. Schultz continued to have daily severe pain in his right eye and face. He is reliant upon pain medications to keep the pain manageable. The effect of those medications negatively impact his ability obtain steady employment. Additionally, the loss of vision in his right eye further complicates his ability to find employment. Mr. Schultz now suffers from posttraumatic stress disorder and has had an increasingly difficult time acclimating to society. Mr. Schultz s marriage has suffered as well, and his wife has moved back to her home country of Page of CIVIL COMPLAINT Court Street NE

7 Australia. Mr. Schultz s family indicate that since the attack, he has not been the same and that their relationships with Mr. Schultz have been damaged as a result of what Mr. Schultz has went through during and after the attack.. As a result of the attack, Nolan Briden was charged with Assault in the First Degree, Unlawful Use of a Weapon, and Possession of a Weapon by an Inmate in Marion County Case No. C-. Mr. Schultz was the named victim in that matter and the charging indictment was plead to indicate Mr. Schultz did not substantially contribute to the commission of the charged offense by precipitating the attack. Briden was convicted of all counts following a two day bench trial in front of the Honorable Audrey Broyles. His sentencing hearing is set for November rd,.. All material events alleged herein occurred in Marion County, Oregon. Mr. Schultz brings claims under the Oregon Tort Claims Act against the State of Oregon for the negligence of its employees and/or agents. Mr. Schultz also brings a claim under U.S.C. for Failure to Protect from Known Risk of Harm and Deliberate Indifference to Creating a Risk of Serious Physical Injury in Violation of the Eighth Amendment to the United States Constitution.. Mr. Schultz sent the State of Oregon and all above-named defendants a timely Notice of Tort Claim on February th,. The State of Oregon acknowledged this claim by way of a written letter dated February th,. Page of CIVIL COMPLAINT Court Street NE

8 FIRST CLAIM FOR RELIEF: NEGLIGENCE Plaintiff re-alleges and incorporates herein all paragraphs above.. The State of Oregon, by and through its employees at Mill Creek Correctional facility and Oregon State Penitentiary, had a relationship to Mr. Schultz as his custodian. That relationship created a duty in the employees of the State of Oregon to refrain from creating, exposing, and/or confining Mr. Schultz to dangerous circumstances, in particular, circumstances that created a danger of attack by other inmates. It is well established in prison culture that being labeled a snitch makes inmates targets of attack from other inmates. It is also well established that gang members within the prison system defend and protect one another from real and perceived harms. The State of Oregon, through its employees, had a duty not to take actions that put a proverbial target on Mr. Schultz s back.. Employees of the State of Oregon, including but not limited to the defendants listed in this complaint, were aware that Mr. Schultz would have been in imminent danger of a serious attack by another inmate when Cpl. Wilson 1 informed inmate Briden that Mr. Schultz issued complaints about inmate s Briden s close friend, fellow gang member and co-defendant inmate Holmes, resulting in the close friend s removal from the Motor-Pool work crew; gave a direct order for both Mr. Schultz and inmate Briden to clean up the recycling area of OSP; and left Mr. Schultz and inmate Briden unsupervised in that recycling area, less than a week after Cpl. Wilson informed inmate Briden about Mr. Schultz s complaints. /// /// Page of CIVIL COMPLAINT Court Street NE

9 . Employees of the State of Oregon, including but not limited to the defendants listed in this complaint were aware that Mr. Schultz would have been in imminent danger of a serious attack by another inmate yet did not supervise the area in which both men were ordered to work. Sgt. Herron was the tower guard on duty the day of the attack. Cpl. Wilson failed to inform Sgt. Herron that Mr. Schultz would be alone with a dangerous inmate who had a motive to harm him in a place with numerous objects that could be used as deadly weapons. Sgt. Herron was not in the tower as Mr. Schultz ran across the yard calling for help, before he was struck a second time. Sgt. Herron was inside of the prison using the bathroom facilities as there were no bathroom facilities in the tower.. Employees of the State of Oregon, including but not limited to the defendants listed in this complaint, were aware Nolan Briden was a potentially dangerous inmate, as was Jacob Holmes. Nolan Briden s criminal history includes convictions for Attempt to Commit a Class A Felony (that felony being Conspiracy to Commit Murder; Assault II, Assault III (x, Felon in Possession of a Weapon, Robbery I, Robbery II and Robbery III. Jacob Holmes criminal history includes convictions for Assault I, Assault II (x, assault III, Assault IV, Robbery I and Robbery II, and a charge for attempted murder. Jacob Holmes and Nolan Briden are both members of the Indian Power Organization, a violent gang made up of Native Americans. Further, inmate Briden and inmate Holmes were codefendants in Yamhill County Case Nos. CR00 and CR000. The two knew one another prior to being incarcerated and committed crimes together. In the Yamhill county cases they were both convicted of Robbery I, Assault II, Robbery II, Assault II, and Briden was convicted Page of CIVIL COMPLAINT Court Street NE

10 of Felon in Possession of a Weapon. This information would have been known to prison officials prior to the attack.. The State of Oregon, by and through its employees, breached its duty to protect Mr. Schultz while he was in the custody of the State of Oregon. Cpl. Wilson, within the scope of his duties as an employee of the State of Oregon, informed inmate Briden about Mr. Schultz s complaints. Cpl. Wilson, while acting within the scope of his duties and at the direction of his supervisor Cpt. Wright, directed Mr. Schultz and inmate Briden to perform work in the recycling area. As a direct and proximate result of that negligent breach of their duty, Mr. Schultz was injured. As a direct and proximate result of that negligence, Mr. Schultz suffered from a partial impairment of the whole person, lost work capacity, chronic pain, loss of vision, and disability.. As a direct and proximate result of the negligence of the employees of the State of Oregon, Mr. Schultz suffered and continues to suffer significant emotional distress, loss of relationships, anxiety and depression, and heightened avoidance and arousal patterns associated with post-traumatic stress disorder. As a direct and proximate result of the negligent care by defendant, plaintiff has incurred economic and non-economic damages. He has incurred expenses for the medical care he received and will have to receive in the future; for rehabilitative care; for mental health treatment; and he will incur substantial damages associated with loss of earning potential and ability to freely travel; the exact amount to be proven at trial; but in any event, no less than $0,000. Plaintiff reserves the right to amend this Complaint to include updated figures on damages up to and including the time of trial in this matter. Page of CIVIL COMPLAINT Court Street NE

11 SECOND CLAIM FOR RELIEF (Civil Rights Violations arising under U.S.C. for Failure to Protect from Known Risk of Harm and Deliberate Indifference to Creating a Risk of Serious Physical Injury in Violation of the Eight Amendment to the U.S. Constitution. Plaintiff re-alleges and incorporates herein all paragraphs above. On October th,, Cpl. Wilson, an employee of the State of Oregon, informed inmate Briden of the complaints Mr. Schultz lodged against inmate Briden s friend, fellow gang member, and co-defendant inmate Holmes. Cpl. Wilson was aware Mr. Schultz was concerned about this information being released to other inmates, and by telling inmate Briden Cpl. Wilson demonstrated a deliberate indifference to the fact he was in fact creating a risk of serious physical injury to Mr. Schultz. Cpl. Wilson then ordered Mr. Schultz and inmate Briden to clean up the recycling area of OSP less than a week later. Finally, Cpl. Wilson left inmate Briden and Mr. Schultz unsupervised in the recycling area, which was filled with materials, tools, bats, and other objects that were potential weapons. Cpl. Wilson demonstrated further deliberate indifference and disregard for an excessive risk to Mr. Schultz s safety, and failed to reasonably protect Mr. Schultz from being attacked by another prisoner. Mr. Schultz exhausted his administrative remedies by filing a timely grievance concerning the events stated herein on November th,. OSP Grievance Coordinator B. Eriksen denied the grievance on November th, on the grounds that Mr. Schultz named more than one staff member in the grievance, as he is only allowed to name one staff member. per grievance. The denial indicated that Mr. Schultz could resubmit the grievance with one staff member named, despite the fact the thirty day timeline to file a grievance had now passed. On Page of CIVIL COMPLAINT Court Street NE

12 November th,, Mr. Schultz filed a grievance naming Cpl. Wilson as the grieved staff member. Cpl. Wilson responded on December rd,, denying responsibility. Mr. Schultz filed a grievance appeal on December th,. The appeal was denied by Superintendent Premo on December 0 th,. Mr. Schultz filed another grievance appeal on January nd,. The second grievance appeal was denied on January th,. Mr. Schultz filed his Notice of Tort Claim on February th,. Mr. Schultz has paid the full filing fee and has never brought a claim against the State of Oregon prior to this complaint.. Prison officials demonstrated a total failure to protect Mr. Schultz and exhibited a deliberate indifference in creating a risk of serious physical injury to Mr. Schultz. As a result, Mr. Schultz was nearly beaten to death by another inmate. Mr. Schultz survived, but suffered tremendously at the time of the attack and ever since has had chronic and severe physical pain and suffering; permanent impairment of his body, loss of vision in one eye, loss of enjoyment of life; loss of consortium; permanent scarring to his face; and will have a significant reduction in his past and future earning potential and employment opportunities. Further, Mr. Schultz now has severe emotional and psychological damage as a result of this attack. Plaintiff reserves the right to amend this Complaint to include updated figures on damages up to and including the time of trial in this matter.. Plaintiff demands his the reasonable attorney fees and costs incurred in recovering compensation for the harm he suffered as provided by USC.. Plaintiff demands a trial by a jury of his peers. Page of CIVIL COMPLAINT Court Street NE

13 PRAYER FOR RELIEF WHEREFORE Plaintiff prays for judgment against the Defendants for all claims, and the following relief: 1. Economic damages in an amount of no less than $0,000 for past and future medical costs; physical rehabilitative costs; costs associated with psychological counseling and treatment; costs associated with dental repair work; and damages associated with the loss of employment opportunities and loss of past and future earning potential as a result of permanent physical injuries associated with the attack;. Non-economic damages in an amount of $00,000 for the chronic and permanent physical pain and suffering of Plaintiff; including the continuous and permanent pain associated with Plaintiff s orbital nerve damage; the loss of vision in his right eye; the permanent and noticeable scarring on his face; and the costs associated with his ongoing need for therapeutic treatment for the injuries sustained;. Non-economic damages in an amount of $0,000 for mental pain and suffering Plaintiff experienced at the time of the attack; during his recovery from the attack; and now continues to suffer from as a result of the attack; and damages related to his loss of consortium and loss of other relationships;. Costs and disbursements incurred by Plaintiff in pursuit of the present claim including all reasonable attorney fees and expenses; and. Such other relief as this court deems just and equitable. DATED this th day of October, Page of CIVIL COMPLAINT s/, OSB No. 1 Of Attorneys for Plaintiff Court Street NE