Woodroffe v. State of Oregon et al

Filing 107

Opinion and Order - Defendants' motion for partial judgment on the pleadings 78 is GRANTED IN PART AND DENIED IN PART. Signed on 4/29/2013 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

ROBERT WOODROFFE,

Case No.: 2:12-cv-00124-SI

Plaintiff,
OPINION AND ORDER
v.
STATE OF OREGON, et al.,
Defendants.

Robert Woodroffe, Snake River Correctional Institution, 777 Stanton Blvd., Ontario,
OR 97914-8335. Plaintiff pro se.
Shannon M. Vincent, Oregon Department of Justice, Trial Division, CLS, 1162 Court Street,
N.E., Salem, OR 97301-0346. Attorney for Defendants Theodore Kulongoski, Max Williams,
Michael Gower, Brian Belleque, Michelle Dodson, Polly Stuart, Zach Erdman, John R. Kroger,
Mary H. Williams, David E. Leith, Kristina Manley, Walter M. Beglau, Brandon Kelly, Gerald
Long, Dennis Long, Lee Jones, Leslie Dickey, Sharon Duren, Eugene Reding, Patrick Mullen,
Robert Andamson, Michael Hannon, Daniel Weber, Jana Russell, Helene Lichtman, Charles
Gepford, Christy Henning, Brian Walker, Mark Nooth, Robert Real, Al Hannon, James
Eastwood, Jeff Premo, Denise Parker, Frank Serrano, Stan Czerniak, Steve Shelton, Garth
Gulick, Jodean Elliot-Blakeslee, Hirley Hodge, Patricia Carnig, Patricia Flores, Randy Geer,
Judy Gilmore, Bill Doman, Steve Spang, Maureen Rossi-Hill, Janell Rochester, Candace
Wheeler, and Aaron Felton.
Gerald L. Warren, Law Office of Gerald Warren, 901 Capitol Street N.E, Salem, OR 97301.
Attorney for Defendant Coleen Clemente.
SIMON, District Judge.
Plaintiff Robert Woodroffe, an inmate incarcerated in the State of Oregon’s prison
system, brings this action against some 60 defendants. Plaintiff’s complaint raises several
allegations, including, but not limited to: (1) that he was sexually assaulted by another inmate;

(2) that he has not received adequate medical care for knee and coccyx pain;1 (3) that he was not
provided with adequate medical care after “losing a lot of blood”; (4) that he was wrongly
accused of misconduct; (5) that he has been denied access to materials in the prison law library;
(6) that parole board members unconstitutionally changed the date of a parole review hearing;
and (7) that he has been denied certain treatment. Based on these allegations, Plaintiff asserts
claims under 42 U.S.C. § 1983 for violations of his First, Eighth, and Fourteenth Amendment
rights and for violations of Title II the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12131-12165, and § 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794. Plaintiff also
asserts state law claims for negligence, medical malpractice, and assault and battery.
On March 14, 2012, the Court entered an order dismissing Defendants the State of
Oregon, the Oregon Department of Corrections (“ODOC”), the Oregon State Penitentiary PREA
Committee, the Snake River Correctional Institution TLC Committee, Saint Alphonsas Medical
Center, the Oregon Board of Parole (“OBOP”), and Steven L. Brown. Dkt. 15. Defendant Coleen
Clemente filed an Answer on June 14, 2012, Dkt. 37, and a motion for summary judgment the
same day. Dkt. 38. The remaining Defendants (“Defendants”) filed an Answer on August 21,
2012. Dkt. 57. Before the Court is Defendants’ motion for partial judgment on the pleadings,
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(c). Dkt. 78. For the reasons discussed
below, the Court grants in part and denies in part Defendants’ motion.
STANDARDS
A Rule 12(c) “motion for judgment on the pleadings faces the same test as a motion
under Rule 12(b)(6).” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988).
Dismissal for failure to state a claim under Rule 12(b)(6) “is proper if there is a ‘lack of a
1

On November 27, 2012, the Court entered an order dismissing Plaintiff’s state law
medical claims involving his coccyx and knees. Dkt. 92.
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cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal
theory.’” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri
v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988)). In evaluating the sufficiency of a
complaint’s factual allegations, the court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most favorable to the non-moving party.
Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l
Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth,
allegations in a complaint “may not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give fair notice and to enable the opposing
party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir 2011). All
reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal
Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not,
however, credit the plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)); see also Cafasso, United States ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (Iqbal standard applies to
review of Rule 12(c) motions).

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A court must liberally construe pro se complaints and motions from prisoners. United
States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2000). “A pro se litigant must be given leave to
amend his or her complaint unless it is ‘absolutely clear that the deficiencies of the complaint
could not be cured by amendment.’” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,
623 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987), superseded on
other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)). The “usual
practice to allow leave to replead upon granting a motion to dismiss extends to motions for
judgment on the pleadings.” Trzaska v. Int’l Game Tech., 2:10-CV-2268 JCM GWF, 2011 WL
2516931, at *6 (D. Nev. June 23, 2011).
DISCUSSION
Defendants divide their partial motion for judgment on the pleadings into seven
individual motions. Dkt. 78-79. The Court considers each in turn.
A.

Motion One
In their first motion, Defendants argue that the Court should dismiss all claims against

Defendants Kulongoski, Kroger, Williams, Hannon, Elliott-Blakeslee, Hodge, Flores, Gilmore,
Gower, Nooth, Rochester, and Mullen in their individual capacities because the complaint fails
to allege that they personally deprived Plaintiff of his federally protected rights.2 Defs.’ Mem.
at 4. To state a claim under § 1983, “a plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United States was violated, and (2) that the
alleged violation was committed by a person acting under the color of State law.” Long v. Cnty.

2

In a declaration attached to his sur-response, Plaintiff appears voluntarily to dismiss his
claims against Defendants Elliott-Blakeslee, Gilmore, Rochester, and Mullen. Dkt. 102. Because
Plaintiff does not specify with precision which claims he is conceding, the Court considers all
claims against Defendants Elliott-Blakeslee, Gilmore, Rochester, and Mullen despite Plaintiff’s
concession.
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of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Under § 1983, a defendant violates the
rights of a plaintiff if the defendant “does an affirmative act, participates in another’s affirmative
acts, or omits to perform an act which he is legally required to do that causes the deprivation of
which complaint is made.’” Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (en
banc) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
In addition, in a § 1983 action “the plaintiff must also demonstrate that the defendant’s
conduct was the actionable cause of the claimed injury. To meet this causation requirement, the
plaintiff must establish both causation-in-fact and proximate causation.” Harper v. City of Los
Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (citation omitted). Proximate cause “refers to the
basic requirement that before recovery is allowed in tort, there must be ‘some direct relation
between the injury asserted and the injurious conduct alleged[.]’ It excludes from the scope of
liability injuries that are ‘too remote,’ ‘purely contingent,’ or ‘indirect[].’” CSX Transp., Inc. v.
McBride, 131 S. Ct. 2630, 2645 (2011) (quoting Holmes v. Securities Investor Prot. Corp., 503
U.S. 258, 268 (1992)) (alterations in original). Even where a plaintiff is proceeding pro se,
“[v]ague and conclusory allegations of official participation in civil rights violations are not
sufficient to withstand a motion to dismiss.” Ivey v. Bd. of Regents of Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982).
Plaintiff’s only allegations against Defendants Kulongoski, Kroger, Williams, Gower,
Nooth, Hodge, Gilmore, Hannon, Elliott-Blakeslee, and Mullen are that they were aware of
various conditions and failed to act to correct those conditions. Compl. at p. 7, ¶¶ 71-72
(Kulongoski); p. 8, ¶¶ 75-82 (Williams, Gower); p. 9 ¶ 94 (Kroger); p. 13, ¶¶ 137-141 (Mullen);
pp. 15-16, ¶¶ 160-69 (Nooth); p. 17, ¶¶ 179-82 (Hannon); p. 19, ¶ 203 (Elliott-Blakesee);
pp. 23-25, ¶¶ 220-231 (Elliott-Blakesee, Hodge); p. 26, ¶ 245 (Gilmore); pp. 34-37, ¶¶ 293-305

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(Kulongoski, Williams, Gower, Nooth); pp. 42-43, ¶¶ 331-34 (Elliott-Blakesee, Hodge);
pp. 46-50, ¶¶ 244-248, 251-54, 257 (Kulongoski, Williams, Gower, Hannon); p. 52, ¶¶ 267-68
(Gower); p. 53, ¶ 273 (Mullen); p. 55, ¶ 282 (Kroger); pp. 68-69, ¶¶ 367-369 (Elliott-Blakesee,
Hodge). For each of these Defendants, Plaintiff fails to allege that the Defendant’s failure to act
bears some direct relation to the injury asserted. Plaintiff must do more than simply allege that
the Defendant was “aware of” Plaintiff’s condition, or that the Defendant had an “obligation” to
act, or that the Defendant “allowed” another person to violate Plaintiff’s rights. To properly state
a claim, Plaintiff must allege that each Defendant failed to act and that failure caused a
deprivation of Plaintiff’s rights. In particular, for Plaintiff’s claims based on the Eighth
Amendment, Plaintiff must allege that Defendants’ failure to act deprived Plaintiff “of the
‘minimal civilized measure of life’s necessities.’” Hallett v. Morgan, 296 F.3d 732, 744 (9th
Cir.2002) (quoting Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998)). Plaintiff’s claims
against Defendants Kulongoski, Kroger, Williams, Gower, Nooth, Hodge, Gilmore, Hannon,
Elliott-Blakeslee, and Mullen are, therefore, dismissed. Plaintiff may replead if Plaintiff can
allege that a Defendant actually caused a deprivation of Plaintiff’s federal constitutional rights.3
Plaintiff’s allegations against Defendant Flores are more specific. Plaintiff alleges that
Defendant Flores was called to Plaintiff’s cell after he was found with a broken nose. Compl. at
p. 44, ¶ 238. He alleges that his “condition was critical and [his] life was in danger.” Id. at
p. 25, ¶ 235. Plaintiff further alleges that Defendant Flores “should [have] known that large
amounts of blood loss is dangerous, and plaintiff should [have] been in [the] hospital[.]” Id. at
pp. 44-45, ¶ 239. According to Plaintiff, Defendant Flores “failed to respond” to Plaintiff’s
“serious medical needs.” Id. The “Eighth Amendment is violated when prison officials
3

As discussed below, the Court is dismissing Plaintiff’s federal statutory claims under
the ADA and the RA, without leave to replead. Only constitutional claims remain.
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demonstrate ‘deliberate indifference to serious medical needs.’” Hallett, 296 F.3d at 744
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Plaintiff’s allegations against Defendant
Flores are sufficient to state a claim under the Eighth Amendment. Plaintiff does not make any
allegations against Defendant Rochester. Rather, he states that “I’m dele[]ting my claim on
Ms. Rochester[.]” Compl. at p. 28, ¶ 260. Thus, any claims against Rochester are dismissed.
B.

Motion Two
In their second motion, Defendants argue that the Court should dismiss Plaintiff’s claim

of prosecutorial misconduct against Defendant Beglau. Defs.’ Mem. at 6-7. Defendant Beglau is
the District Attorney for Marion County, Oregon. Answer at ¶ 12. Plaintiff alleges that Mr.
Beglau “denied [P]laintiff due process when he failed to file charges against” another inmate
who allegedly assaulted Plaintiff. Compl. at ¶ 275. Plaintiff’s claim is barred by the doctrine of
absolute immunity: a “prosecutor is entitled to absolute immunity for the decision not to
prosecute.” Roe v. City & Cnty. of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997). The Court
finds that no amendment could cure the deficiencies in this claim and it is, therefore, dismissed
without leave to replead. (Plaintiff also appears to concede this claim. See Dkt. 102.)
C.

Motion Three
Defendants argue that the Court must dismiss Plaintiff’s “failure to protect” claim

because the statute of limitations has run. Defs.’ Mem. at 7-8. Plaintiff agrees to dismiss this
claim. Pl.’s Resp. at 1.
D.

Motion Four
In their fourth motion, Defendants argue: (1) there is no private right of action for

violation of Or. Rev. Stat.§ 421.155; (2) Defendants Wheeler and Felton did not violate

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Plaintiff’s due process rights when they changed the date of his parole review hearing; and (3)
there is no individual capacity liability under the ADA or the RA. Defs.’ Mem. at 8-11.
1.

Private right of action under Or. Rev. Stat. § 421.155

Or. Rev. Stat. § 421.155 provides:
Any person sentenced under ORS 161.725 and 161.735, shall be given
such physical, mental and psychiatric observation and treatment as is
available and may tend to rehabilitate such person and make possible the
earliest possible release from the Department of Corrections institution in
which such person is confined, with the least possible danger to the health
and safety of others.
Plaintiff alleges that Defendants failed to provide him the treatment required under Or. Rev. Stat.
§ 421.155. Compl. at p. 31, ¶ 276; p. 33, ¶ 287; p. 46, ¶¶ 242, 245-46. It is unclear whether
Plaintiff intends to bring a claim for violations of Or. Rev. Stat. § 421.155. To the extent that he
does, Defendants argue that it must dismissed because Or. Rev. Stat. § 421.155 does not create a
private right of action. Defs.’ Mem. at 8-9. In general, under Oregon law, “an individual has no
private remedy for a statutory violation unless the statute expressly provides one.” Praegitzer
Indus., Inc. v. Rollins Burdick Hunter of Oregon, Inc., 880 P.2d 479, 481 (Or. App. 1994). If a
statute does not expressly provide a remedy, however, a statute still may permit liability where
the plaintiff can show that the “statute grants him, as a member of the class the statute is
designed to protect, the right to recover damages if noncompliance with the statute results in
harm of the kind the statute was designed to prevent.” Dunlap v. Dickson, 765 P.2d 203, 205 (Or.
1988). Or. Rev. Stat. § 421.155 does not expressly provide a remedy. In addition, Plaintiff has
made no showing that Or. Rev. Stat. § 421.155 was designed to prevent any particular harm or
that, if it was, he is a member of the class the law is intended to protect. Thus, to the extent
Plaintiff asserts a claim based on violations of Or. Rev. Stat. § 421.155, that claim is dismissed
without leave to replead.
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2.

Due process rights to parole hearing

Plaintiff argues that Defendants Wheeler and Felton violated Plaintiff’s constitutional
rights when they changed the date of his parole review hearing. Compl. at pp. 59-60, ¶¶ 305-308.
Defendants argue that the Court must dismiss this claim for two reasons. Defs.’ Mem. at 9-10.
First, Defendants argue that because Defendants Wheeler and Felton are parole board members,
they are entitled to absolute immunity. Second, they argue that a prisoner may not challenge the
duration of his imprisonment in a § 1983 action. The Court agrees with both reasons. Parole
board members are absolutely immune from suit under § 1983 for actions taken when
considering parole applications. Anderson v. Boyd, 714 F.2d 906, 908-09 (9th Cir. 1983)
(“Because parole officials perform an essentially judicial function when considering parole
applications, they are entitled to the absolute protection of quasi-judicial immunity when
engaged in this activity.”). In addition, a prisoner may not challenge the “fact or duration” of his
confinement in a § 1983 action. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). No amendment
could cure these deficiencies. Thus, Plaintiff’s claims against Defendants Wheeler and Felton are
dismissed without leave to replead.
3.

Individual capacity liability under the ADA and the RA

Plaintiff alleges that Defendants Kulongoski, Williams, Gower, and Shelton violated
Defendants rights under Title II of the ADA and § 504 of the RA by denying him medical
treatment.4 Compl. at pp. 45-48, ¶¶ 242-50. Defendants move to dismiss Plaintiff’s claims

4

As noted above, the Court is dismissing all claims against Kulongoski, Williams, and
Gower for failure to state a claim, with leave to replead. The Court considers the ADA and RA
claims against Defendants Kulongoski, Williams, and Gower separately here because the basis
for dismissing the ADA and RA claims is for lack of legal sufficiency rather than failure to plead
sufficient facts. For the reasons stated here, Plaintiff may not replead the ADA and RA claims
against Defendants Kulongoski, Williams, and Gower. In addition, Plaintiff also brings his ADA
Page 9 – OPINION AND ORDER

against Defendants Kulongoski, Williams, Gower, and Shelton in their individual capacities,
arguing that there is no right of action under § 1983 for violations of Title II of the ADA and
§ 504 of the RA. The Court agrees. A “plaintiff cannot bring an action under 42 U.S.C. § 1983
against a State official in her individual capacity to vindicate rights created by Title II of the
ADA or section 504 of the Rehabilitation Act.” Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir.
2002). Plaintiff’s claims based on the ADA and the RA against Defendants Kulongoski,
Williams, Gower, and Shelton in their individual capacities are dismissed. Because no
amendment could cure the deficiency, Plaintiff is not permitted to replead.
E.

Motion Five
In their fifth motion, Defendants argue that the Court should dismiss Plaintiff’s “access to

courts claim” because Plaintiff has failed to allege that Defendants hindered his efforts to pursue
a legal claim. Defs.’ Mem. at 11. Plaintiff alleges that Defendant Rossi-Hill, an Oregon
Department of Corrections law library coordinator, denied Plaintiff the ability to “make copies”
and “do mailing in a timely mann[e]r.” Compl. at ¶ 291; Answer at ¶ 42. Plaintiff also alleges
that Defendant Rossi-Hill “hindered [his] access to legal supplies [and] cases[.]” Id. at ¶ 258. In
addition, Plaintiff alleges that Defendant Doman, the Manager of Corrections Rehabilitation
Services, denied Plaintiff “cases and supplies.” Compl. at p. 27, ¶ 253; Answer at ¶ 40. Prisoners
have a constitutional right to access adequate law libraries. Bounds v. Smith, 430 U.S. 817, 828
(1977). To make out a claim for violation of that right, however, a prisoner must “demonstrate
that the alleged shortcomings in the library or legal assistance program hindered his efforts to
pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Plaintiff has failed to allege that
Defendants hindered his efforts to pursue a legal claim. Plaintiff’s access to the courts claim is,
and RA claim against the State of Oregon, the ODOC, and OBOP. As noted above, the Court
dismissed claims against those Defendants on March 14, 2012. Dkt. 15.
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therefore, dismissed. Plaintiff may replead this claim if he can sufficiently and plausibly allege
that Defendants have hindered his efforts to pursue a legal claim.
F.

Motion Six
In their sixth motion, Defendants argue that the Court should dismiss Plaintiff’s claims

for violations of the Oregon Constitution because the Oregon Constitution does not provide a
cause of action for damages. Compl. at pp. 74-76, ¶¶ 408-21; Defs.’ Mem. at 12-13. There is no
private right of action for damages for violations of the Oregon Constitution. Barcik v.
Kubiaczyk, 895 P.2d 765, 775 (Or. 1995); Hunter v. City of Eugene, 787 P.2d 881, 884 (Or.
1990). Plaintiff’s claims for damages for violations of the Oregon Constitution are dismissed
without leave to replead.
G.

Motion Seven
Plaintiff asserts a claim against Defendants Dr. Shelton, Dr. Gulick, Dr. Elliot-Blakeslee,

Hodge, Carnig, and Flores for medical malpractice. Compl. at ¶¶ 352-74. Each Defendant named
in this claim is an employee of the Oregon Department of Corrections. Answer at ¶¶ 33-37. In
their last motion, Defendants argue that the Court must dismiss this claim because it is barred by
the Eleventh Amendment. Defs.’ Mem. at 13-14. (In addition, Plaintiff states that he “plan[s] . . .
to concede all medical malpractice and negligence claims[.]” Dkt. 101.)
The Oregon Tort Claims Act eliminates state law tort claims against state officers,
employees, and agents for their work-related torts. “In place of a claim against an individual, the
legislature substituted a single claim against the public body[.]” Jensen v. Whitlow, 51 P.3d 599,
601 (Or. 2002); Or. Rev. Stat. § 30.265(3) (“the sole cause of action for a tort committed by
officers, employees or agents of a public body acting within the scope of their employment or

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duties . . . is an action against the public body.”5). Thus, the Court must substitute the Oregon
Department of Corrections for Defendants Shelton, Gulick, Elliot-Blakeslee, Hodge, Carnig, and
Flores.6 See Ctr. for Legal Studies, Inc. v. Lindley, 64 F. Supp. 2d 970, 974 (D. Or. 1999), aff’d,
1 F. App’x 662 (9th Cir. 2001) (substituting public body for individual defendants).
Absent an express waiver, however, the Eleventh Amendment “bars suits in federal court
against a state and its agencies brought by its own citizens and citizens of other states.” In re
Jackson, 184 F.3d 1046, 1049 (9th Cir. 1999). The Oregon Tort Claims Act does not waive
Oregon’s Eleventh Amendment immunity to suit in federal court. Or. Rev. Stat. §§ 30.26530.300; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n.9 (1984) (“[A] State’s
waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment
immunity in the federal courts.”); Webber v. First Student, Inc., No. 1:11-CV-3032-CL, 2013
WL 773732 (D. Or. Feb. 26, 2013) (Oregon Tort Claims Act “does not waive the State of
Oregon’s Eleventh Amendment immunity to suit in federal court”); Estate of Pond v. Oregon,
322 F. Supp. 2d 1161, 1165 (D. Or. 2004) (same). Plaintiff’s state law medical malpractice claim
is, therefore, dismissed without leave to replead.
CONCLUSION
Defendants’ motion for partial judgment on the pleadings, Dkt. 78, is GRANTED IN
PART AND DENIED IN PART. (1) Plaintiff’s claim against Defendant Flores survives;
(2) Plaintiff’s claims against Defendants Kulongoski, Kroger, Williams, Gower, Nooth, Hodge,
Gilmore, Hannon, Elliott-Blakeslee, Mullen, and Rochester in their individual capacities are
5

Or. Rev. Stat. § 30.265(3) applies to actions alleging damages in amounts equal to or
less than the damages allowed under Or. Rev. Stat. §§ 30.271, 30.272 and 30.273. Plaintiff’s
alleged damages are less than those amounts. Compl. at 87-91.
6

Plaintiff does not allege that Defendants were acting outside the scope of their
employment duties.
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DISMISSED with leave to replead; (3) Plaintiff’s claim for prosecutorial misconduct against
Defendant Beglau is DISMISSED without leave to replead; (4) Plaintiff’s “failure to protect”
claim is DISMISSED without leave to replead; (5) To the extent that Plaintiff asserts a claim for
violation of Or. Rev. Stat. § 411.155, that claim is DISMISSED without leave to replead;
(6) Plaintiff’s claims against Defendants Felton and Wheeler for denial of due process for
changing the parole review hearing date are DISMISSED without leave to replead;
(7) Plaintiff’s claims against Defendants Kulongoski, Williams, Gower, and Shelton in their
individual capacities for violations of the ADA and the RA are DISMISSED without leave to
replead; (8) Plaintiff’s “access to the courts” claim, based on his allegations that Defendants
Rossi-Hill and Doman interfered with his access to the law library, is DISMISSED with leave to
replead; if Plaintiff attempts to replead, however, he must plead sufficient facts plausibly to
suggest not only that Defendants interfered with his access to the law library but also that such
interference hindered his efforts to pursue a legal claim; (9) Plaintiff’s claims for damages under
the Oregon Constitution are DISMISSED without leave to replead; and (10) Plaintiff’s medical
malpractice claim against Defendants Dr. Shelton, Dr. Gulick, Dr. Elliot-Blakeslee, Hodge,
Carnig, and Flores is DISMISSED without leave to replead.
IT IS SO ORDERED.
Dated this 29th day of April, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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