Barnes v. Gower et al
Filing
32
OPINION & ORDER: Defendants' motion to dismiss 27 is GRANTED. See 5-page opinion & order attached. Signed on 5/23/2013 by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTOPHER LEE BARNES,
Plaintiff,
Case No. 2:12-cv-01880-HZ
OPINION & ORDER
v.
MICHAEL GOWER, et al,
Defendants.
Christopher Lee Barnes
#11865762
SNAKE RIVER CORRECTIONAL INSTITUTION
777 Stanton Blvd
Ontario, OR 97914-8335
Pro Se Plaintiff
Robert E. Sullivan
OREGON DEPARTMENT OF JUSTICE
Trial Division
1162 Court Street NE
Salem, OR 97301
1 - OPINION & ORDER
Attorney for Defendants
HERNANDEZ, District Judge:
Pro se plaintiff Christopher Lee Barnes is an inmate in the custody of the Oregon
Department of Corrections at Two Rivers Correctional Institution in Umatilla, Oregon. He
brings this civil rights action pursuant to 42 U.S.C. § 1983 against Collette Peter[s], the “Director
of [t]he Oregon Department of Corrections at [t]he Dome Building in Salem for the Oregon
Department of Corrections”; Michael Gower, the “Assistant Director of [t]he Operations
Division”; Steve Franke, the “Superintendent of [t]he Two Rivers Correctional Institution”; and
“Ms. Whelen”, the “Health Services Manager for the Two Rivers Correctional Institution”.
Compl., pp. 3-4. Plaintiff alleges Defendants failed to provide him with adequate “[m]edical
[c]are” in violation of his First Amendment right to “[f]reedom of [s]peech, [p]ress, [a]ssembly
and [p]etition”, Eighth Amendment right to be free from “cruel and unusal [p]unishment”, and
Fourteenth Amendment right to [d]ue [p]rocess”. Id., p. 4; Civil Cover Sheet, p.1. Now before
me is Defendant’s motion to dismiss (doc. #27) claims against Peters, Gower, and Franke for
failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure.1 For the
reasons that follow, Defendants’ motion is granted.
STANDARD
When considering a rule 12(b)(6) motion under the Federal Rules of Civil Procedure, a
court must “accept as true all of the factual allegations contained in the complaint” and may
dismiss the case “only where there is no cognizable legal theory” or there is an absence of
“sufficient factual matter to state a facially plausible claim to relief.” Erickson v. Pardus, 551
1
Plaintiff did not file a responsive brief to Defendants’ motion.
2 - OPINION & ORDER
U.S. 89, 94 (2007) (citation omitted); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d
1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)).
A claim has facial plausibility when a plaintiff “pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citation omitted). The facts alleged must demonstrate “more than labels
and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
(citation omitted). “The plausibility standard is not akin to a probability requirement, but it asks
for more than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint
pleads facts that are merely consistent with a defendant’s liability, it stops short of the line
between possibility and plausibility of entitlement to relief.” Id. at 678 (citations and internal
quotation marks omitted).
DISCUSSION
Plaintiff generally alleges he “signed up for sick call on June 11, 2012 requesting to be
sent out for an M.R.I. [sic] to see what is causing [him] to suffer from server [sic] Migrains [sic]
that cause [him] to vomit & [sic] pass out for 5 hours or more.” Compl., p. 4. With respect to
Peters, Plaintiff alleges that “[e]very time [he] send [sic] . . . Peters an Inmate Communication
Form regarding the Criminal Negligence & Mistreatment Issues[,] . . . Peters just sends The [sic]
Inmate Communication Forms [sic] over to . . . Gowers . . . .” Id., p. 5. With respect to Gower,
Plaintiff alleges he “never responded to the Inmate Communications Form [Plaintiff] sent him
about this Issue [sic].” Id., p. 4. With respect to Franke, Plaintiff alleges Franke “is always
responding via Department LetterHead [sic] stating that he has looked into [Plaintiff’s] claims”
3 - OPINION & ORDER
and that he “has found . . . Nothing [sic] to support [Plaintiff’s] claims.” Id., p. 5. Plaintiff
further alleges that Franke “does not visit The OSU [sic] or Main Line [sic] areas to see how The
Daily Operations [sic] are being handled nor does he provide any Evidence [sic] of his
Investigations [sic].” Id. Lastly, with regard to Whelan, Plaintiff alleges she “is refusing to do
her job by giving [him] Kytes [sic] that [he] address [sic] to her for someone else to answer &
[sic] refuses to investigate [his] claim that [he] did sign up for sick call.” Id., p. 4.
Defendants concede that Plaintiff sufficiently states a claim against Whelan for failing to
evaluate or treat his migraines. They, however, argue that Plaintiff fails to state a claim against
Peters, Gower, and Franke. I agree.
Even when assuming Plaintiff’s factual allegations as true, Plaintiff fails to state a claim
against Peters, Gower, and Franke. It is unclear how Plaintiff’s First, Eighth, or Fourteenth
Amendment rights are implicated based on the allegations in the Complaint. Although the First
Amendment covers a diverse array of rights such as freedom of speech, freedom of press,
religious freedom, freedom of assembly, and the right to petition the government, Plaintiff does
not set forth any facts establishing that his First Amendment rights were violated. U.S. Const.
amend. I. The Complaint is also lacking any factual allegations supporting a claim that the
specific actions of Peters, Gowers, and Franke are proscribed under the Eighth Amendment.
Rhodes v. Chapman, 452 U.S. 337, 347 (1981); U.S. Const. amend. VIII. The Complaint is also
void any facts showing Peters, Gowers, and Franke deprived him of his right to due process of
law or the procedural protections protected under the Fourteenth Amendment. Foss v. Nat’l
Marine Fisheries Servs., 161 F.3d 584, 588 (9th Cir. 1998); U.S. Const. amend. XIV. Based on
the allegations in the Complaint, it is simply unclear how any of Plaintiff’s rights under the
Amendments he cites are implicated.
4 - OPINION & ORDER
In sum, the Complaint is absent sufficient facts alleging how Peters, Gowers, and Franke
violated Plaintiff’s constitutional rights.
CONCLUSION
Based on the reasons above, Defendants’ motion to dismiss (doc. #27) is GRANTED.
IT IS SO ORDERED.
Dated this _____ day of __________, 2013.
___________________________
MARCO A. HERNANDEZ
United States District Judge
5 - OPINION & ORDER
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