Ross v. Shelton

Filing 42

OPINION AND ORDER. Defendants' Motion for Summary Judgment (ECF # 31 ) is GRANTED in its entirety and this action is dismissed with prejudice. The court further certifies that any appeal from the order or judgment dismissing this case would be frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3). IT IS SO ORDERED. Signed on 2/21/2019 by Magistrate Judge Youlee Yim You. (pvh)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PENDLETON DIVISION

JAMES ARTHUR ROSS,
Plaintiff,
Case No. 2:18-cv-00045-YY
v.
OPINION AND ORDER
STEVEN SHELTON, M.D., et al,
Defendants.

YOU, Magistrate Judge:
Pro se plaintiff James Arthur Ross (“Ross”) is an inmate housed at Two Rivers
Correctional Institution (“TRCI”) in Umatilla, Oregon. He brings a civil rights action pursuant
to 42 U.S.C. § 1983 against defendants Dr. Steven Shelton, M.D., medical director at the Oregon
Department of Corrections (“ODOC”), J. Dafoe, health services administrator at ODOC, and
three TRCI nurses, B. Whelan, Shannon Johnston, and M. Whelan. Ross’ allegations stem from
medical care he has received for a knee injury. He alleges that defendants violated his rights “to
be free from retaliation, to medical treatment, to be free from cruel and unusual punishment,
equal protection and due process and the [Americans with Disabilities Act] ADA, as guaranteed .
. . through the Oregon Constitution, Article I, . . . and the United States Constitution[,]
Amendments 1st, 8th, and 14th[.]” Compl. 2, ECF #2. Ross seeks 1) an MRI of his knees,
ankles, and shoulder; 2) discontinuation of the policy of placing inmates on sports restrictions

1—OPINION AND ORDER

and subjecting them to disciplinary sanctions for noncompliance; 3) discontinuation of the
practice of administering x-rays for injuries that should be detected through other means, such as
MRIs; and 4) monetary relief in the amount of $127,569.23. Id. at 6.
Defendants collectively seek summary judgment (ECF # 31) on all of Ross’ claims. For
the reasons discussed below, defendants’ motion for summary judgment is GRANTED.1
I.

Summary Judgment Standard
FRCP 56(c) authorizes summary judgment if “no genuine issue” exists regarding any

material fact and “the moving party is entitled to judgment as a matter of law.” The moving
party has the burden of establishing the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the
nonmoving party must “go beyond the pleadings” and designate specific facts showing a
“genuine issue for trial.” Id. at 324 (citing FRCP 56(e)).
The court must view the evidence in the light most favorable to the non-moving party and
draw all reasonable inferences in the non-movant’s favor. Newmaker v. City of Fortuna, 842
F.3d 1108, 1111 (9th Cir. 2016), cert. denied, 137 S. Ct. 2217 (2017). Although “[c]redibility
determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge . . . ruling on a motion for summary judgment,” the “mere
existence of a scintilla of evidence in support of the plaintiff’s position [is] insufficient . . . .”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine

1

All parties have consented to allow a magistrate judge to enter final orders and judgment in this
case in accordance with FRCP 73 and 28 USC § 636(c).
2—OPINION AND ORDER

issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation and quotation marks omitted).
Pro se complaints are “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106
(1976). “This rule protects the rights of pro se litigants to self-representation and meaningful
access to the courts, . . . and is particularly important in civil rights cases.” Pouncil v. Tilton, 704
F.3d 568, 574–75 (9th Cir. 2012) (citations and quotation marks omitted).
II.

Eighth Amendment
A.

Background Facts

On July 6, 2012, Ross saw a medical provider for right knee pain after being involved in
an altercation. Decl. Digiulio, ¶ 7. This was Ross’ first complaint of knee pain since his
admission to ODOC in 2004. Id. Three days later, on July 9, 2012, Ross received two x-rays of
his right knee. Id. The findings were “negative” and showed “no [b]ony, articular or soft tissue
abnormality.” Id. ¶ 8.
On July 8, 2013, Ross complained of right knee pain, which he has been experiencing
since childhood. ECF #32, at 20. He reported that his knee went in and out of socket, and that it
was out of socket again. Id. He described constant pain, rated at a score of six on a scale of one
to ten, and asked for the knee to be popped back into place. Id. After reviewing the July 9, 2012
x-ray, which showed no significance, medical staff instructed Ross to rest and take ibuprofen for
pain, and he was given a sports restriction2 for two weeks. Id.
On July 17, 2014, Ross was playing basketball when he was struck below the left knee.
Id. at 24-25. He complained of pain radiating to his toes, a swollen knee, and “popping.” Id.

2

Ross describes a sports restriction as a limitation on every physical activity except for walking.
Resp. 5.
3—OPINION AND ORDER

Ross reported that he landed on the side of his ankle and heard a “pop.” ECF #32, at 11. Ross
was x-rayed the same day, and the results were again normal. Digiulio Decl. ¶ 9. He was told to
rest, ice, elevate, and take ibuprofen, and he was given crutches with an Ace bandage wrap. ECF
#32, at 12.
Approximately one month later, on August 20, 2014, Ross complained about ongoing
knee pain and was told to return to sick call if the problem persisted. Id. He returned on August
30, 2014, complaining again of knee pain. Id.
On January 8, 2016, Ross reported to sick call with complaints of pain in the left knee in
the patella region (left kneecap). Id. ¶ 11. He reported a history of left knee trauma from playing
basketball, and was experiencing pain and stiffness that woke him during the night and had
worsened over the past six to eight months. Ross reported that ibuprofen was no longer
effective. Ross was placed on a sports restriction for three months. Id.
Three days later, Ross received an x-ray of his left knee. Id. The findings were
“normal.” Id. The articular surfaces were smooth and joint spaces appeared normal. Id. No
acute or chronic feature was seen, and the patella was aligned and intact. Id.
On January 29, 2016, Ross sent an inmate communications form to the medical
department complaining about lack of treatment for his knee. Compl., Ex. 3. Three days later,
on February 3, 2016, he was advised that his “x-ray was normal so most likely it is soft tissue
injury and it takes time for soft tissue injuries to resolve[.] [R]esting your leg and taking antiinflammatories as directed is the right treatment.” Id.
On February 4, 2016, Ross filed a grievance, complaining that the sports restriction was
punitive. He stated that he had heart problems and needed exercise on a regular basis, and that
there were plenty of exercises he could perform without hurting his knee. Id., Ex. 5. On March

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14, 2016, defendant Shannon Johnston, an RN Nurse Manager, responded to the grievance,
noting that x-ray results showed a normal left knee and that a “sports restriction would assist in
the healing of [his] chronic knee injury.” Id., Ex. 6. Ross appealed his grievance on March 21,
2016. Id., Ex. 7. In his appeal, he expressed concern that “medical would retaliate against me by
putting [the] same restriction on me.” Id.
On May 3, 2016, Dr. Shelton wrote Ross a letter addressing his grievance form. Id., Ex.
8. Dr. Shelton told Ross explained that “[t]he type of knee pain [he] experienced is appropriately
treated with rest and nonsteroidal anti-inflammatory drugs (NSAIDs) which includes ibuprofen,
Naxproxen, and aspirin” and that “[t]he restriction from sports was intended to avoid further
injury to [his] knee and allow it time to heal.” Id. Dr. Shelton invited Ross to “send an Inmate
Communication or visit sick call to discuss the treatment plan based on the progression of [his]
knee symptoms” and that “Health Services is committed to providing care that is respectful,
compassionate, objective and non-judgmental.” Id.
On May 11, 2016, Ross filed another grievance appeal form. Id., Ex. 9. Ross stated that
“nothing in Dr. Shelton’s response justifies the actions taken by ‘medical’ on me, which did not
provide me (in my opinion) proper medical treatment, but only punished me for seeking it.” Id.
On June 27, 2016, defendant J. DaFoe, an ODOC Health Services Administrator, wrote Ross and
stated, “I see that your knee pain is something that you have been dealing with for quite some
time . . . .” Id., Ex. 10. DaFoe reiterated that a “sports restriction is intended to avoid further
injury to your knee and allow it to heal” and “ensures . . . that you are avoiding the activities that
can worsen your symptoms.” Id. DaFoe explained that “[t]his is a standard treatment/protocol
for patients complaining of joint/extremity pain/discomfort” and “not intended to be a
‘punishment’ by any means.” Id.

5—OPINION AND ORDER

Ross has not reported any knee pain since, although he has complained on different
occasions about the flu, a rash, and a sore on his third right toe. Digiulio Decl. ¶ 14; ECF #32, at
46, 47. According to Dr. Christopher Digiulio, a physician and deputy medical director with
ODOC, the medical care that Ross has received for knee pain was appropriate and well within
the community standards. Digiulio Decl. ¶¶ 5, 14.
B.

Relevant Law

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.
“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane
ones, and it is now settled that ‘the treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under the Eighth Amendment.’” Suchodolski
v. Peters, No. 1:17-cv-01113-AC, 2018 WL 4926300, at *9 (D. Or. Oct. 10, 2018) (citing
Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Punishment must comport with “the evolving
standards of decency that mark the progress of a maturing society.” Id. (quoting Estelle, 429
U.S. at 102).
“[T]o state a cognizable claim, a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106.
“It is only such indifference that can offend ‘evolving standards of decency’ in violation of the
Eighth Amendment.” Id.
A prison official is deliberately indifferent if the official knows that a prisoner faces
substantial risk of serious harm and disregards that risk by failing to take reasonable measures to
abate it. Farmer, 511 U.S. at 847. To succeed on a deliberate indifference claim based on
inadequate medical care, a plaintiff must show (1) he suffered an objectively serious illness or

6—OPINION AND ORDER

injury while incarcerated, and (2) prison officials were subjectively aware of the plaintiff’s
serious condition, but nonetheless delayed or denied access to adequate medical care.
Suchodolski, 2018 WL 4926300, at *10 (internal citations omitted). “Thus, to violate the Eighth
Amendment, a prison official must have a ‘sufficiently culpable mind.’” Guy v. Kimbrell, No.
CIVS03-1208-JAM-CMKP, 2008 WL 2774184, at *3 (E.D. Cal. June 27, 2008), report and
recommendation adopted, 2008 WL 3200855 (E.D. Cal. Aug. 7, 2008) (quoting Farmer, 511
U.S. at 834).
“A serious medical need exists if failure to treat the condition could result in further
significant injury or the unnecessary and wanton infliction of pain.” Brown v. Perez, No. EDCV
14-2421-CJC JEM, 2015 WL 2153451, at *3 (C.D. Cal. May 7, 2015) (citing McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). Examples of serious medical needs include “[t]he
existence of an injury that a reasonable doctor or patient would find important and worthy of
comment or treatment; the presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and substantial pain.” McGuckin, 974
F.2d at 1059–60.
“However, an inadvertent or negligent failure to provide medical care does not constitute
deliberate indifference.” Brown, 2015 WL 2153451, at *4 (citing Estelle, 429 U.S. at 105–06).
“When medical treatment is delayed rather than denied, the delay generally amounts to deliberate
indifference only if it caused further harm.” Id. (citing Wood v. Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990); Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989); Shapley v.
Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985); Hallett v. Morgan, 296
F.3d 732, 746 (9th Cir. 2002) (delayed dental care did not violate Eighth Amendment because

7—OPINION AND ORDER

plaintiffs did not show that “delays occurred to patients with problems so severe that delays
would cause significant harm”)).
A “difference of medical opinion . . . [is] insufficient, as a matter of law, to establish
deliberate indifference.” Id. (citation and quotations omitted). “[N]or does a dispute between a
prisoner and prison official over the necessity for or extent of medical treatment amount to a
constitutional violation.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
C.

Analysis

There is no evidence that Ross’ knee injury is objectively serious under the Eighth
Amendment. Multiple x-rays produced negative and normal results, and showed no bony,
articular, or soft tissue abnormality. The articular surfaces were smooth and joint spaces
appeared normal, there were no acute or chronic features, and the knee cap was aligned and
intact. The objective medical evidence does not show this was a condition that “significantly
affect[ed] [Ross’] daily activities” and does not corroborate Ross’ accounts of “substantial pain.”
McGuckin, 974 F.2d at 1059-60. Instead, Ross has been diagnosed with a soft tissue injury and
repeatedly told to rest. This was not an injury “that a reasonable doctor or patient would find
important and worthy of comment or treatment” or refer to a specialist, as Ross contends. Id.
Moreover, there is no evidence that defendants were subjectively aware of Ross’ serious
condition, yet nonetheless delayed or denied access to adequate medical care. Each time, after
reporting his injuries, Ross has been immediately x-rayed and given prompt medical advice.
One time he received crutches and an Ace bandage. Similarly, his grievances have been
responded to in a timely manner, and he has been invited to send further inmate communications
or visit sick call to discuss his treatment plan and progression of his symptoms. According to Dr.

8—OPINION AND ORDER

Digiulio, who is a physician, the medical care that Ross received was appropriate and well within
the community standards.
At most, Ross has an argument that defendants were negligent in treating his injury.
Ross maintains that he needs to be seen by a specialist and receive an MRI. Resp. 2, ECF #38.
However, negligence or a difference of opinion is not enough to establish deliberate indifference.
Nor has Ross shown that any delay in treating him has caused further harm. Medical records
show that Ross has not been seen for his knee injury since early 2016, although he has
complained of other injuries. Ross claims that he has not returned to sick call about his knee
because he experiences “no difference,” so “why . . . go back . . . to be punished again and still
receive no treatment?” Resp. 6. Again, however, his difference of opinion regarding what
medical treatment is appropriate for his injury does not establish a claim of deliberate
indifference. Because defendants are entitled to prevail on plaintiff’s Eighth Amendment claim
as a matter of law, their motion for summary judgment on this claim is granted.
III.

Retaliation—First Amendment
Ross contends that his “right to be free” from retaliation under the First Amendment has

been violated. Compl. 4. Prisoners have a First Amendment right to file prison grievances.
Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (internal citations omitted). Retaliation
against prisoners for exercising this right violates the First Amendment and is a matter of clearly
established law. Id.
To prevail on this claim, a prisoner must establish that he was retaliated against for
exercising his constitutional rights and that the retaliatory action does not advance legitimate
penological goals, such as preserving institutional order and discipline. Barnett v. Centoni, 31
F.3d 813, 815-16 (9th Cir. 1994) (per curiam). The prisoner must establish: “(1) [a]n assertion

9—OPINION AND ORDER

that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s
protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment
rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Brodheim,
584 F.3d at 1269 (citing Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005)).
The prisoner bears the burden of establishing that the actions he complains of have no
legitimate penological purpose. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Generally,
courts avoid “excessive judicial involvement in day-to-day prison management, which ‘often
squander[s] judicial resources with little offsetting benefit to anyone.’” Id. at 807 (citation
omitted). Courts should “‘afford appropriate deference and flexibility to state officials trying to
manage a volatile environment,’ especially with regard to ‘the fine-tuning of the ordinary
incidents of prison life, a common subject of prisoner claims[.]’” Id. Furthermore “the nature of
a retaliation claim requires that it be ‘regarded with skepticism, lest federal courts embroil
themselves in every disciplinary act that occurs in state penal institutions.’” Banks v. Oregon,
No. 2:12-cv-01651-MC, 2014 WL 1946552, *3 (D. Or. May 12, 2014) (quoting Adams v. Rice,
40 F.3d 72, 74 (4th Cir. 1994)).
Ross alleges that prison officials took adverse action against him by imposing a
temporary sports restriction when he sought treatment for his knee injury. However, Ross has
failed to establish that any adverse action has taken place. Rather, Ross received the standard
treatment and protocol for patients complaining of joint/extremity pain and discomfort, which is
to rest and take anti-inflammatories. Moreover, even if Ross was able to show that an adverse
action took place, he is unable to demonstrate that the action did not reasonably serve a
legitimate correctional goal, such as minimizing inmate injury. Because defendants have

10—OPINION AND ORDER

established that they are entitled to judgment as a matter of law, summary judgment is granted as
to this claim.
IV.

Equal Protection
Ross claims that other inmates with similar injuries “receive the very treatment [he] ha[s]

been requesting for years.” Resp. 7. He contends that this “unequal treatment” is
unconstitutional under the Fourteenth Amendment. Id.; Compl. 4.
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall
deny to any person the equal protection of the laws, “which is essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439 (1985). “When an equal protection claim is premised on unique
treatment rather than a classification, the Supreme Court has described it as a ‘class of one’
claim.” North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (citing Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). To establish a violation of equal protection in
a “class of one” case, a plaintiff must establish that the defendants “intentionally, and without
rational basis, treated the plaintiff differently from others similarly situated.” Id. (internal
citations omitted). However, a person cannot state an equal protection claim merely by dividing
all persons not injured into one class and alleging that they received better treatment than the
plaintiff did. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). Instead, to
state a “class of one” claim, the plaintiff must identify the group of individuals with whom he is
similarly situated, identify the allegedly intentional and disparate treatment, and allege that there
was no rational basis for the different treatment. Gerhart v. Lake Cty., Mont., 637 F.3d 1013,
1022 (9th Cir. 2011).

11—OPINION AND ORDER

Ross has failed to allege a colorable equal protection claim. As Dr. Digiulio explained,
the treatment that Ross has been receiving is appropriate for his injury and within community
standards. Thus, even assuming that other inmates with similar injuries are receiving
unnecessary MRIs, Ross cannot show there is no rational basis for the different treatment he has
received, as it is the appropriate treatment for his condition.
V.

Due Process
It appears that Ross claims a loss of liberty interest as a result of being placed on a sports

restriction. Due process protection attaches only to instances that are an atypical and significant
hardship on the inmate compared to the ordinary incidents of prison life. Brown v. Oregon
Department of Corrections, 751 F.3d 983, 987 (9th Cir. 2014) (quoting Sandin v. Connor, 515
U.S. 472, 484 (1995)). Moreover, the Fourteenth Amendment requires only “some evidence” to
support a decision by prison officials that results in the loss of a liberty interest. Superintendent,
Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard
“does not require examination of the entire record, independent assessment of the credibility of
witnesses, or the weighing of evidence.” Id. “[T]he relevant question is whether there is any
evidence in the record that could support the conclusion.” Id. at 455-56.
Here, the record does not point to any evidence that the sports restriction placed on Ross
was an atypical and significant hardship. Rather, it was “intended to avoid further injury” to
Ross’ knee and to allow it to heal. The diagnosis and treatment that Ross received, which was
appropriate and within community standards, constitutes “some evidence” to support the
purported loss of liberty interest, i.e., the sports restriction. Thus, Ross’ due process claim fails.

12—OPINION AND ORDER

VI.

ADA Claim
Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subject to discrimination by such entity.”
42 U.S.C. § 12132. To prove a Title II claim, plaintiff must demonstrate that (1) he is an
individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of
some public entity’s services, programs, or activities; (3) he was either excluded from
participation in or denied benefits of the public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or
discrimination was by reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.
2002). A disability is defined as “a physical or mental impairment that substantially limits one
or more of the major life activities.” 42 U.S.C. § 12102(2)(A).
Title II of the ADA “unmistakably includes State prisons and prisoners within its
coverage.” Pennsylvania Dept. of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998). “Further, medical
care is one of the ‘services, programs, or activities’ covered by the ADA.” Payne v. Arizona,
No. CV 09-01195-PHX-NVW, 2012 WL 1151957, at *3 (D. Ariz. Apr. 5, 2012) (citing Kiman v.
N.H. Dept. of Corrs., 451 F.3d 274, 284 (1st Cir. 2006)). The “alleged deliberate refusal of
prison officials to accommodate [a prisoner’s] disability-related needs in such fundamentals as . .
. medical care . . . constitutes exclusion from participation in or . . . denial of the benefits of the
prison's services, programs, or activities.” United States v. Georgia, 546 U.S. 151, 157 (2006).
However, “[w]hile evidence of discriminatory medical care can constitute a claim under
the ADA, claims based solely on provision of inadequate or negligent medical care are not
cognizable under the ADA.” Payne, 2012 WL 1151957, at *4 (citing Simmons v. Navajo Cnty.,

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Ariz., 609 F.3d 1011, 1021–22 (9th Cir. 2010) (“The ADA prohibits discrimination because of
disability, not inadequate treatment for disability.”); Bryant v. Madigan, 84 F.3d 246, 249 (7th
Cir. 1997) (“The ADA does not create a remedy for medical malpractice.”); Marlor v. Madison
Cty., Idaho, 50 F. App’x 872, 873 (9th Cir.2002) (“Inadequate medical care does not provide a
basis for an ADA claim unless medical services are withheld by reason of a disability.”)).
Additionally, “[t]o recover monetary damages under Title II of the ADA . . . a plaintiff
must prove intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap,
260 F.3d 1124, 1138 (9th Cir. 2001). Intentional discrimination is established by showing the
defendant acted with “deliberate indifference.” Id. “Deliberate indifference requires both
knowledge that a harm to a federally protected right is substantially likely, and a failure to act
upon that likelihood.” Id. at 1139. A plaintiff must “identify ‘specific reasonable’ and
‘necessary’ accommodations that the [defendant] failed to provide” and show the defendant’s
failure to act was “a result of conduct that is more than negligent, and involves an element of
deliberateness.” Id. at 1140.
Here, Ross makes only fleeting reference to the ADA in his Complaint and provides no
further explanation of his claim in his response to the motion for summary judgment. Compl. 5,
ECF #2. Even assuming Ross has a disability under the ADA, he has failed to establish that
defendants acted with the requisite discriminatory intent, or deliberate indifference. As
discussed above, there is no evidence that defendants’ actions were anything more than
negligent, if that.

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VII.

State Constitutional Claims—Eleventh Amendment
Ross asserts that his rights under the Oregon Constitution, Article 1, have been violated

but fails to refer to a specific section. Nevertheless, Ross’ claims are barred by the Eleventh
Amendment.
Defendants contend that the State of Oregon must be substituted for the individual
defendants and thereafter dismissed under the Eleventh Amendment. Mot. Summ. J. 7, ECF
#22. In support of their argument, defendants cite to ORS 30.265(1), which they contend
provides that the “sole cause of action for any tort of officers, employees or agents of a public
body acting within the scope of their employment or duties . . . shall be an action against the
public body only.” Id.
Defendants incorrectly cite to an old version of ORS 30.265(1).3 The current, relevant
statutory scheme is codified in ORS 30.265(2) through (4).
In any event, even though “[t]he Oregon Tort Claims Act is a waiver of sovereign
immunity[,]” it “does not waive Eleventh Amendment immunity.” Estate of Pond v. Oregon,
322 F. Supp. 2d 1161, 1165 (D. Or. 2004); see also Pennhurst State School and Hospital 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”). The
Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the

3

In 1991, the Oregon legislature added the following language to former ORS 30.265(1):
“The sole cause of action for any tort of officers, employees or agents of a public body acting
within the scope of their employment or duties and eligible for representation and
indemnification under ORS 30.285 or 30.287 shall be an action against the public body only.”
Berry v. State, Dep’t of Gen. Servs., 141 Or. App. 225, 227 (1996). However, the statute has
since been amended.
15—OPINION AND ORDER

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend XI. Under the Eleventh Amendment, federal courts may not entertain lawsuits
brought by citizens against a state without the state’s express consent. Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 54 (1996). “The test for determining whether a State has waived its
immunity from federal-court jurisdiction is a stringent one.” Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 241 (1985). The court “will find waiver only where stated by the most express
language or by such overwhelming implications from the text as [will] leave no room for any
other reasonable construction”). Edelman v. Jordan, 415 U.S. 651, 673 (1974). The OTCA
contains no such express consent to file suit against the state in federal court. Estate of Pond,
322 F. Supp. 2d at 1165.
Moreover, it is apparent from the evidence that the individual defendants in this case
were acting in their official capacities. “When a plaintiff brings a lawsuit against a government
officer in his official capacity, a court treats the suit ‘as a suit against the entity’ that employs the
officer.” Updike v. Clackamas Cty., No. 3:15-CV-00723-SI, 2015 WL 7722410, at *3 (D. Or.
Nov. 30, 2015) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). The individual
defendants in this case are employees of ODOC and TRCI. TRCI is part of the Oregon
Department of Corrections, which is an arm of the State of Oregon. See Gauthier v. E. Oregon
Corr. Inst., No. CV 04-290-HA, 2004 WL 2260670, at *4 (D. Or. Oct. 7, 2004) (finding Eastern
Oregon Correctional Institution is a part of the ODOC, which is an “arm of the State or
Oregon”). Thus, the suit must be treated as one against the State of Oregon, and the state
constitutional claims must be dismissed under the Eleventh Amendment.

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VIII. Qualified Immunity
Defendants contend that they are entitled to qualified immunity from damages. Mot.
Summ. J. 11, ECF #31. It is unnecessary to decide that issue, as the motion for summary
judgment is otherwise denied on the merits.
IX.

Injunctive Relief
Ross seeks an end to the “policy of placing inmates on restrictions, which subject them to

disciplinary punishment or outright denial of treatment” and an end to “giving x-rays for things
that obviously need MRIs.” Compl. 6. Defendants argue that, even if Ross is entitled to prevail
on his claims, this form of relief is unavailable because the Prison Litigation Reform Act
(“PLRA”) contains a restriction on prospective injunctive relief. Mot. Summ. J. 12, ECF #31
(citing 18 U.S.C. § 3626(a)(1)(A)).
Indeed, under the PLRA, courts “shall not grant or approve any prospective relief unless
the court finds such relief is narrowly drawn . . . .” 18 U.S.C. § 3626(a)(1)(A). The PLRA
“operates simultaneously to restrict the equity jurisdiction of federal courts and to protect the
bargaining power of prison administrators—no longer may courts grant or approve relief that
binds prison administrators to do more than the constitutional minimum.” Gilmore v. People of
the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000).
Demanding an end to “giving x-rays for things that obviously need MRIs” and an end to
punitive “inmate restrictions” does not constitute injunctive relief that is narrowly drawn.
Furthermore, the relief sought by Ross is not the least “intrusive” means necessary to correct the
alleged violations, which pertain to Ross’ knee injury. Thus, even if Ross was entitled to relief
on his claims, his request for prospective injunction fails for these reasons.

17—OPINION AND ORDER

CONCLUSION
Defendants’ Motion for Summary Judgment (ECF #31) is GRANTED in its entirety and
this action is dismissed with prejudice. The court further certifies that any appeal from the order
or judgment dismissing this case would be frivolous and not taken in good faith. See 28 U.S.C. §
1915(a)(3).
IT IS SO ORDERED.
DATED February 21, 2019.

/s/ Youlee Yim You

Youlee Yim You
United States Magistrate Judge

18—OPINION AND ORDER