McMain v. Peters et al

Filing 130

ORDER: Granting in Part, Denying in Part Motion for Summary Judgment 122 . All further discovery and dispositive motions are due. Signed on 10/17/2017 by Judge Ann L. Aiken. (copy mailed to plaintiff) (jw)

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UNITED STATES DISTRICT COURT

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DISTRICT OF OREGON

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Case No. 2: 13-cv-01632-AA

GORDON MCMAIN,

OPINION AND ORDER

Plaintiff,
v.

COLLETTE PETERS; DR. SHELTON;
DR. ELLIOT-BLAKESLEE; J. BELL;
J. TAYLOR; R. SMITH,
Defendants.

AIKEN, District Judge:
Plaintiff, a former inmate at the Snake River Correctional Institution, filed suit pursuant
to 42 U.S.C. § 1983 alleging deliberate indifference to his serious medical needs and denial of
his rights to equal protection under the law. Defendants now move for summary judgment under
Federal Rule of Civil Procedure 56 on all claims. For the reasons set forth below, defendants'
motion is granted, in part.
BACKGROUND
Plaintiff is a former inmate who was confined at the Snake River Correctional Institution
(SRCI) in Ontario. During the relevant time period, Colette Peters was the Director of the
1 - OPINION AND ORDER

Oregon Department of Corrections (ODOC), Steven Shelton, M.D., was the ODOC Medical
Director, J. Elliott-Blakeslee was a physician assigned to SRCI, Jason Bell was the Assistant
Superintendent of SRCI, and James Taylor was an ODOC Grievance Coordinator. 1
On September 16, 2013, plaintiff filed suit and alleged that defendants refused to approve
and administer testosterone injections that he had been prescribed prior to his incarceration at
SRCI. Plaintiff further alleged that Dr. Elliott-Blakeslee advised him that he could not receive
testosterone injections unless he had Klinefelter's Disease, pursuant to ODOC policy. Plaintiff
also alleged that defendants provided inadequate treatment for his back condition. (ECF No. 2)
On March 10, 2014, defendants moved to dismiss plaintiffs claims because he failed to
exhaust his administrative remedies before filing his complaint. (ECF Nos. 55, 56) On March 2,
2015, the court granted defendants' motion, construed as a motion for summary judgment. (ECF
No. 87)
Plaintiff appealed the court's ruling and the Ninth Circuit vacated the dismissal, finding
that the court had not "expressly" considered evidence that plaintiff was not provided with
"instructions on how to file an appeal, that he did not have access to the necessary forms, or that
he had been informed by a prison official that he could appeal his grievances." (ECF No. 112)
On May 4, 2017, after remand of the case, the court issued a scheduling order and
dispositive motion deadline. Defendants now move for summary judgment.
DISCUSSION
Defendants first move for summary judgment on plaintiffs claims alleged against them
in their official capacities.

1

In his response to defendants' motion, plaintiff indicates that he does not oppose
dismissal of his claims against defendant Renee Smith. Pl.'s Response at 8 (ECF No. 125).
2 - OPINION AND ORDER

The Eleventh Amendment to the United States Constitution prohibits a plaintiff from
suing the State of Oregon or its instrumentalities in federal court, unless the State has given
unequivocal consent to be sued or Congress has abrogated that immunity. Will v. Mich. Dep 't of
State Police, 491 U.S. 58, 66 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
97-100 (1984); Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) ("The Eleventh
Amendment bars suits which seek either damages or injunctive relief against a state, an 'arm of
the state,' its instrumentalities, or its agencies.") (per curiam). Likewise, the Eleventh
Amendment bars claims for damages against state officials sued in their official capacities. See
Holley v. Cal. Dep 't of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) (for immunity purposes, suits
against state officials in their official capacities are treated as suits against the state).
Accordingly, summary judgment is granted on plaintiffs claims for damages against defendants
in their official capacities. 2
Next, defendants Peters, Shelton, Bell, and Taylor move for summary judgment on
grounds that they were not personally involved in the decisions regarding plaintiffs medical
treatment. Liability under § 1983 arises upon a showing of personal participation by each
defendant, and a supervisor is not liable for the constitutional violations of employees unless the
supervisor "participated in or directed the violations, or knew of the violations and failed to act
to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). In other words, plaintiff
must allege that each named defendant, through his or her own individual actions, violated
plaintiffs constitutional rights.
2

While a plaintiff may assert claims for injunctive relief against officials in their official
capacities, plaintiff has been released from SRCI and his claims for injunctive relief are moot.
Will, 491 U.S. at 71, n.10 ("a state official in his or her official capacity, when sued for
injunctive relief, would be a person under § 1983 because 'official-capacity actions for
prospective relief are not treated as actions against the State"') (citation omitted); Rhodes v.
Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005).
3 - OPINION AND ORDER

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Plaintiff presents insufficient evidence that Peters, Bell, or Taylor personally participated
in the alleged denial of medical care. Plaintiffs claims against Peters and Bell are based solely
on their inherent supervisory authority as ODOC Director and SRCI Assistant Superintendent. It
is well established that respondeat superior liability is not available under § 1983, and the facts
do not establish a causal connection between their alleged conduct and plaintiffs medical care.

Lemire v. Cal. Dep't Corr. & Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Jones v. Williams,
297 F.3d 930, 934 (9th Cir. 2002). Plaintiffs claims against Taylor are based on his handling of
plaintiffs grievances. However, plaintiff alleges inadequate medical care, and plaintiff does not
allege or present evidence that Taylor personally participated in the denial of testosterone
medication or the treatment of his back.
Plaintiff presents sufficient evidence that Dr. Shelton personally participated in the denial
of plaintiffs requests for testosterone medication and additional back treatment. Unlike
defendant Peters, Dr. Shelton did not simply receive a letter or communications from plaintiff; he
personally responded to plaintiff and affirmed the denial of testosterone medication and
additional treatment for plaintiffs back. Pl.'s Response, Exs. 5-7, 12, 29-31 (ECF No. 125).
Presumably, Dr. Shelton, as Medical Director, could have ordered plaintiff to receive
testosterone medication or other care. 3 Accordingly, summary judgment is granted with respect
to plaintiffs claims against Peter, Taylor, and Bell and denied with respect to Dr. Shelton.
Finally, defendants argue that plaintiffs claims against Dr. Elliott-Blakeslee must be
dismissed because plaintiff did not substitute her estate as a defendant after he was notified of
her death. See Fed. R. Civ. P. 25(a)(l) (if a motion for substitution "is not made within 90 days
after service of a statement noting the death, the action by or against the decedent must be
3

These findings should not be construed as a comment on the merits of plaintiffs
deliberate indifference claims.
4 - OPINION AND ORDER

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dismissed"). Notably, the ODOC defendants did not waive service or file an Answer on behalf
of Dr. Elliott-Blakeslee, as she died shortly after plaintiff filed suit. (ECF Nos. 19, 123) Further,
plaintiff filed a notice of Dr. Elliott-Blakeslee's death in December 2013, and he did not move
to substitute her estate as a defendant. (ECF No. 21)
Granted, plaintiff asked for assistance and the appointment of counsel, and the court
made several unsuccessful efforts to obtain volunteer counsel. Regardless, plaintiff has been
capable of filing numerous motions during this lawsuit and was well aware of Dr. ElliottBlakeslee's death and Federal Rule of Civil Procedure 25(a). Accordingly, plaintiffs claims
against Dr. Elliott-Blakeslee must be dismissed for failure to substitute her estate as a defendant.
Olney v. Hartwig, 472 Fed. App'x 432, 434 (9th Cir. 2012) (finding that the district court

"properly dismissed" a prisoner's claims against a deceased state official when "no party filed a
valid motion to substitute his successor within 90 days of the filing of the suggestion of death").
CONCLUSION
Defendants' Motion for Summary Judgment (ECF No. 122) is GRANTED with respect
to defendants Peters, Bell, Taylor, Smith, and Dr. Elliott-Blakeslee and DENIED with respect to
defendant Dr. Shelton. All further discovery and dispositive motions are due by December 15,
2017.
IT IS SO ORDERED.
DA TED this _/__}:day of October, 2017.

~CL,~

Ann Aiken
United States District Judge

5 - OPINION AND ORDER