Batista v. Columbia County et al

Filing 72

OPINION & ORDER: Defendants' motion for summary judgment 57 is GRANTED and Plaintiff's motion for partial summary judgment 51 is DENIED. See 24-page opinion & order attached. Signed on 10/17/2013 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RAYMOND BATISTA,
Plaintiff,
No. 3:12-cv-00920-HZ
OPINION & ORDER
v.
COLUMBIA COUNTY;
JEFF DICKERSON, Personally;
DEREK HIBBS, Personally;
RYAN SCHOLL, Personally;
METRO WEST AMBULANCE;
LEGACY EMANUEL HOSPITAL,
Defendants.
Leonard Randolph Berman
LAW OFFICE OF LEONARD R. BERMAN
4711 SW Huber Street , Suite E-3
Portland, OR 97219
Attorney for Plaintiff
Stan LeGore
MILLER & WAGNER, LLP
1 - OPINION & ORDER

2210 N.W. Flanders Street
Portland, OR 97210-3408
Attorney for Columbia County,
Jeff Dickerson, Derek Hibbs, and
Ryan Scholl
HERNANDEZ, District Judge:
This action arises out of an injury Raymond Batista suffered to his left eye during
an altercation he had with two other inmates on June 7, 2010, while in custody at
Columbia County Jail (the “Jail”). Plaintiff brings claims against Columbia County; Jeff
Dickerson, the elected Columbia County Sheriff; and Derek Hibbs and Ryan Scholl, two
Deputies at the Jail. Plaintiff alleges violations of his Eighth Amendment rights pursuant
to 42 U.S.C. § 1983 against Dickerson, Hibbs, and Scholl.1 Plaintiff also alleges
negligence (1) for the negligent hiring, training, and supervision of deputies Hibbs and
Scholl; (2) for failing to “timely and expeditiously protect” Plaintiff; (3) for failing to
“minimize” his injury; and (4) for “housing . . . a murder [sic] and . . . white supremacists
in the general population.” Am. Compl., ¶ 13. Additionally, Plaintiff alleges Monell
violations against Dickerson for “promulgating and maintaining an unconstitutional
policy of understaffing”.2
Now before me are Defendants’ motion for summary judgment (dkt. #57) and
Plaintiff’s motion for partial summary judgment (dkt. #51). For the reasons that follow,

1

Plaintiff also brought claims against Metro West Ambulance, Inc. and Legacy Emanuel
Hospital, but those defendants have since been dismissed.
2
Plaintiff also alleges medical negligence on the part of Columbia County for delaying
treatment of his left eye. Defendants state Plaintiff represented to them that he will not
proceed with this claim, and Plaintiff does not argue otherwise.
2 - OPINION & ORDER

Defendants’ motion for summary judgment is GRANTED and Plaintiff’s motion for
partial summary judgment is DENIED.
BACKGROUND
On May 28, 2010, Plaintiff began serving a twenty-day sentence in the Jail’s “CPod.”3 LeGore Decl., Ex. 1, p.1. The Columbia County Jail is divided into discrete
residence areas, or “Pods,” where inmates are housed based on their security
classifications. Rush Decl., ¶ 7. Inmates are classified according to their “security risk”
at the time they are admitted to the Jail, and are classified as either “Maximum, Medium[,
or] . . . Minimum security [risk].” Id. Classifications are reviewed monthly. Id. An
inmate’s classification level is based on the “charges pending against the inmate or the
nature of the inmate’s conviction; the inmate’s criminal history; and . . . the inmate’s
institutional behavior.” Id. A-Pod is comprised of inmates classified as Maximum
security risk, whereas C-Pod is comprised of inmates classified as either Medium or
Minimum security risks. Weaver Decl., ¶ 4.
The Pods are constantly patrolled and monitored. See Deming Decl., ¶¶ 3-4. A
control technician in the Jail’s control room has a direct line of sight to most of the Pods
and monitors the Pods on video screens. Id. In addition, two Rove Deputies patrol the
Pods. Hibbs Decl., ¶ 3. The Rove Deputies make at least two physical entries into each
Pod every hour and make additional entries into the Pods throughout the day for other
purposes, including mail delivery and pickup, cleaning, distributing toiletries, checking
fire door and equipment, escorting inmates, and responding to calls for assistance by
inmates. Other deputies and jail staff are also tasked with observing inmates. Id.

3

Plaintiff was initially placed in A-Pod.

3 - OPINION & ORDER

The incident at issue here occurred on June 7, 2010, around 1:35 p.m. LeGore
Decl., Ex. 3, p. 7. Carolyn Deming, a Control Room Technician at the Jail, received a
call from an unidentified male inmate from one of the cells in C-Pod asking for
immediate emergency assistance. Deming Decl., ¶ 7. When asked what was wrong,
Deming received no response. Id. Deming immediately radioed the Deputies. Id. Hibbs
arrived in C-Pod in less than a minute from Deming’s call and located Plaintiff, who was
sitting in his cell with a bloody towel over his eye. Id.; Hibbs Decl., ¶ 6. When Hibbs
asked Plaintiff what had happened, Plaintiff removed the towel. Hibbs then called for
assistance over the radio. Hibbs Decl., ¶ 6. Deputy Feakin subsequently arrived and
Hibbs and Feakin escorted Plaintiff to the Jail’s medical area, where a nurse immediately
examined Plaintiff and determined that he be taken to a hospital.4 Id., ¶ 9. After Feakin
took photos of Plaintiff’s injury, Hibbs and Feakin escorted Plaintiff to Booking at 1:46
p.m., where Plaintiff’s release papers were prepared and an ambulance was called to
transport Plaintiff to the hospital. Id. At 2:01 p.m., the ambulance arrived and took
Plaintiff to the hospital. Rush Decl., ¶ 4.
Immediately following the attack, Dickerson requested a full investigation of the
incident by the Washington County Sheriff’s Office (“WCSO”), an outside agency. The
WCSO began their investigation on June 8, 2010, and reported directly to the Columbia
County District Attorney (“CCDA”). The investigation showed that Plaintiff’s June 7,
2010, altercation was with inmate Ashley Siclovan, who had stabbed Plaintiff, and
inmate David Scott LaVelle, who had “assisted” Siclovan. Dickerson Decl., ¶ 8. The
CCDA, however, declined to file charges against either Siclovan or LaVelle. Id., ¶ 15.
4

While Plaintiff was examined by the nurse, Hibbs stayed with Plaintiff while Feakin
went to Booking to get a camera to photograph Plaintiff’s injuries.
4 - OPINION & ORDER

STANDARD
Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c). The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party need only demonstrate that there is an absence of evidence to support
the non-moving party’s case. Id. at 325.
Once the moving party has met its burden, the burden shifts to the non-moving
party to “set out ‘specific facts showing a genuine issue for trial.’” Id. at 324 (quotation
omitted). To carry this burden, the non-moving party must “do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a
scintilla of evidence . . . will be insufficient; there must be evidence on which the jury
could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
In deciding a summary judgment motion, the court must view the evidence in the
light most favorable to the non-moving party and draw all justifiable inferences in its
favor. Id. at 255. “Credibility determinations, the weighing of the 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 .” Id. However, conclusory, speculative
testimony in affidavits and moving papers is insufficient to raise genuine issues of fact

5 - OPINION & ORDER

and defeat summary judgment. See Thornhill Publ’n Co., Inc. v. GTE Corp., 594 F.2d
730, 738 (9th Cir. 1979).
DISCUSSION
I. Defendants’ Motion for Summary Judgment
A. First Claim: Eighth Amendment
The Eighth Amendment prohibits “cruel and unusual punishments” thereby
placing “restraints on prison officials”. Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(citation omitted). The Eighth Amendment also places duties upon prison officials to
“take reasonable measures to guarantee the safety of the inmates”. Id. (citations omitted).
To establish an Eighth Amendment violation under §1983, a prisoner “must satisfy both
the objective and subjective components of a two-part test.” Toguchi v. Chung, 391 F.3d
1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.
2002)). First, the plaintiff must show that the prison official deprived him of the
“minimal civilized measure of life’s necessities.” Id. (citation omitted). Second, he must
demonstrate that the prison official “acted with deliberate indifference in doing so.” Id.
(quotations and citation omitted). “A prison official acts with deliberate indifference . . .
only if the [prison official] knows of and disregards an excessive risk to inmate health
and safety.” Id. “Under this standard, the prison official must not only be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, but
that person must also draw the inference.” Id. “If a [prison official] should have been
aware of the risk, but was not, then the [official] has not violated the Eighth Amendment,
no matter how severe the risk.” Id.

6 - OPINION & ORDER

Defendants argue that Plaintiff’s first claim for relief alleging violations of his
Eighth Amendment rights pursuant to § 1983 against Dickerson, Hibbs, and Scholl fails
because they are entitled to qualified immunity, there is no evidence showing that
Dickerson or Scholl personally participated in violating Plaintiff’s constitutional rights,
and there is no evidence showing Defendants were deliberately indifferent.5 Plaintiff
does not respond to Defendants’ arguments and suffice it to say, does not proffer any
evidence supporting his claim. After carefully considering Defendants’ arguments and
the evidence before me, I conclude that Plaintiff fails to meet his burden of establishing a
triable issue of fact as to whether Defendants violated his Eighth Amendment rights.
1. Dickerson and Scholl
In an action brought under § 1983, as here, plaintiff must show “personal
participation by the defendant. . . . A supervisor is only liable for constitutional violations
of his subordinates if the supervisor participated in or directed the violations, or knew of
the violations and failed to act to prevent them. There is no respondeat superior liability
under section 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations
omitted).
Plaintiff’s claim that Dickerson and Scholl violated his Eighth Amendment rights
is unavailing. The record shows that Dickerson and Scholl were not on duty or present at
5

The analysis of whether a government official is entitled to qualified immunity involves
two steps. E.g., Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation omitted). “First,
a court must decide whether the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right.” Id. (citations omitted). Second, “the court must
decide whether the right at issue was clearly established at the time of defendant’s alleged
misconduct. Qualified immunity is applicable unless the official’s conduct violated a
clearly established constitutional right.” Id. (internal quotation marks and citations
omitted). Courts may “exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Id. at 236.
7 - OPINION & ORDER

the Jail when Plaintiff was attacked. With regard to Scholl, the undisputed evidence
shows he started his shift on June 7, 2010, at 3:00 p.m.–well after Plaintiff was allegedly
attacked at 1:35 p.m., and had only heard about the attack during his “shift briefing”
when he started work that day. Scholl Decl., ¶¶ 3, 10. With respect to Dickerson, the
evidence shows that he was not present at the Jail at all on June 7, 2010, let alone
responsible for monitoring inmates or supervising anyone working at the Jail on June 7,
2010. Dickerson Decl., ¶ 3. Based on the evidence before me, Plaintiff fails to meet his
burden of establishing a genuine issue of material fact as to whether Scholls and
Dickerson personally participated in his alleged constitutional violations. Accordingly,
Defendants’ motion for summary judgment as to Plaintiff’s Eighth Amendment claim is
granted.
2. Hibbs
Defendants maintain that there is no evidence from which the inference could be
drawn that Plaintiff faced a substantial risk of serious harm as required under the Eighth
Amendment. I agree.
Here, there is a complete lack of evidence showing that Hibbs was deliberately
indifferent to Plaintiff’s safety. The undisputed evidence shows that there was no
indication of any violence or serious injury to Plaintiff or any other inmate the weeks
leading up to Plaintiff’s alleged attack. Scholl Decl., ¶ 8. The evidence also shows that
Defendants routinely patrolled C-Pod the day Plaintiff was allegedly attacked. See
LeGore Decl., ¶ 11; Id., Ex. 3, pp. 1-7. The record shows that on June 7, 2010, various
deputies checked C-Pod twenty-five times before Plaintiff was attacked. Id. The
evidence also shows that Hibbs personally checked C-Pod a number of times on June 7,

8 - OPINION & ORDER

2010, including at 1:11 p.m. and 1:27 p.m., just eight minutes before Plaintiff was
allegedly attacked, and observed no indication of any gang behavior, racial tension, or
threats of violence. LeGore Decl., Ex. 3, pp. 1-7; Hibbs Decl., ¶ 5. Similarly, the
evidence shows that Scholl and Marcia Rush, a Deputy Sheriff at the Jail, did not notice
any inmate behavior or risk of harm to Plaintiff before Plaintiff’s altercation. Scholl
Decl., ¶ 8; Rush Decl., ¶ 5. Rush stated that Plaintiff “appeared to be getting along with
the other inmates” in C-Pod on June 7, 2010, and Plaintiff himself admitted during his
deposition that “prior to the incident with Siclovan[,]” there had been no “incidents in Cpod involving fights or violence of any kind between inmates” and that everything had
been “fine”. Rush Decl., ¶ 5; LeGore Decl., Ex. 2, p. 17.
The record fails to show that any of the Deputies on duty on June 7, 2010, had
reason to suspect Plaintiff was in any danger. Rather, the undisputed evidence before me
establishes that Plaintiff’s injury was the result of an isolated, random incident of prison
violence. Plaintiff proffers no evidence creating a triable issue of fact that Dickerson,
Scholl, or Hibbs were aware of facts from which the inference could be drawn that a
substantial risk of serious harm to Plaintiff existed, and no evidence showing that they
drew such an inference. Also absent are any facts creating a genuine issue of material
fact as to whether Dickerson, Scholl, or Hibbs knew of and disregarded an excessive risk
to Plaintiff’s health and safety. Based on the above, Defendants’ motion for summary
judgment as to Plaintiff’s first claim for relief is granted.
B. Third Claim: Monell Violations
Plaintiff’s third claim for relief alleges that “Dickerson, acting as the final
policymaker for Columbia County as to [J]ail policies, . . . deprived [P]laintiff of his

9 - OPINION & ORDER

Eighth Amendment rights, by promulgating and maintaining an unconstitutional policy of
understaffing, to wit, two security deputies for upwards of 180 inmates, housing
murderers and white supremacists in the general population . . . .” Am. Compl., ¶¶ 1415. Defendants assert that Plaintiff’s Monell claim against Columbia County fails
because there is no evidence showing that Columbia County’s inmate classification and
staffing and supervision policies were deliberately indifferent to Plaintiff’s constitutional
rights. Plaintiff proffers no evidence in support of his response to Defendants’ motion.
Rather, he merely asserts that the statements by William Joner6 and Rush, Columbia
County’s “override” policy, and Columbia County’s “periodic reviews” required that
Siclovan be classified as a Maximum security risk. Plaintiff also conclusory states,
without providing any evidence, that Defendants are not entitled to summary judgment
because Dickerson ratified “the classification customs, policies, practices and procedures
at Columbia County.” Resp., p. 3. Plaintiff’s unsupported arguments are insufficient to
defeat Defendants’ motion for summary judgment.
A government entity may be held liable as a “person” under § 1983. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Under Monell, a plaintiff must prove
that “(1) she was deprived of a constitutional right; (2) the [government entity] had a
policy; (3) the policy amounted to deliberate indifference to her constitutional right; and
(4) the policy was the moving force behind the constitutional violation.” Mabe v. San
Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001)
(quoting Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)). “To prove
deliberate indifference, the plaintiff must show that the municipality was on actual or

6

Joner is an inmate at the Jail.

10 - OPINION & ORDER

constructive notice that its omission would likely result in a constitutional violation.”
Gibson v. City of Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002) (citation omitted).
“Locating a policy ensures that a municipality is held liable only for those deprivations
resulting from the decisions of its duly constituted legislative body or of those officials
whose acts may fairly be said to be those of the municipality.” Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 404 (1997) (internal quotation marks and citations omitted). An
act performed pursuant to a “custom that has not been formally approved by an
appropriate decisionmaker may fairly subject a municipality to liability on the theory that
the relevant practice is so widespread as to have the force of law.” Id. “Liability for
improper custom may not be predicated on isolated or sporadic incidents; it must be
founded upon practices of sufficient duration, frequency and consistency that the conduct
has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911,
918 (9th Cir. 1996) (citations omitted).
1. Staffing and Supervision Policies
Policy J503 addresses the Jail’s inmate supervision and staffing policies and
“[a]pplies to all [Jail] staff[.]” LeGore Decl., Ex. 7, p. 1. J503 requires that the Jail be
staffed by “trained and certified personnel” “[t]wenty-four hours per day[,] . . . [s]even
days per week”, and that there be “a minimum of four staff members of which at least
three must be certified corrections officers . . .[, including] a supervisor on shift in the
jail. . . .” Id. J503 also requires that a Jail staff member be in the control room at all
times. Id.; Id., Ex. 10, p. 2.
Here, the evidence shows that at the time Plaintiff was allegedly attacked on June
7, 2010, the Jail’s staffing and inmate supervision exceeded the minimum standards set

11 - OPINION & ORDER

forth under J503. The undisputed evidence shows that the Jail had five certified
corrections deputies on duty at the time Plaintiff was allegedly attack, including a
supervising deputy in charge and a technician in the control room. LeGore Decl., Ex. 10,
p. 2. The evidence also shows that on June 7, 2010, the deputies had entered and checked
C-Pod twenty-five times between 6:30 a.m. and the time Plaintiff was allegedly attacked.
LeGore Decl., ¶ 11; Id., Ex. 3, pp. 1-7. The evidence further shows that Hibbs performed
an hourly inmate count just minutes before Plaintiff’s alteration with Siclovan and
LaVelle, and had found no problem or safety concerns in C-Pod. Hibbs Decl., ¶ 5. In
addition, the evidence shows that in a July 7, 2010, memorandum to the Jail’s Captain,
Jim Carpenter, Dickerson concluded that his administrative review of the staffing and
inmate supervision procedures at the time Plaintiff was allegedly attacked revealed that
inmates had been supervised and the Jail had been staffed in accordance with J503.
LeGore Decl., Ex. 10, pp. 1-4.
Plaintiff proffers no evidence disputing Defendants’ evidence. Plaintiff’s general,
unsupported disagreement with the Jail’s staffing and inmate supervision policy is simply
insufficient to meet his burden of creating a genuine issue of material fact as to whether
Defendants were deliberately indifferent to his constitutional rights. Based on the
evidence before me, I conclude that Defendants are entitled to summary judgment on
Plaintiff’s Monell claim.
2. Classification and Override Policies
Plaintiff asserts Defendants’ “policies of Overrides and periodic reviews
mandated an upgrade to Maximum Security after viewing Siclovan’s tattoo, observing
[Siclovan’s] racially hostile and tyrannical demeanor on C[-]Pod, . . . [and] a report from

12 - OPINION & ORDER

Deputy Rush that Siclovan had potential for “trouble[.]” Resp., p. 2. Plaintiff also
asserts that his Monell claim survives summary judgment because if Dickerson had
created a report before Plaintiff’s attack, it would have “shed light on C[-]Pod safety and
inmate and classification issues.” Additionally, Plaintiff contends that “[Dickerson] and
the County should be held liable for a Monell [sic] violation” because “Dickerson
approves and ratifies the classification customs, policies, practices and procedures at
Columbia County.” Id., p. 3. Finally, Plaintiff maintains that “Dickerson could have
implemented the . . . Washington County report that evinces both employee and inmate
accounts of Siclovan and Lavelle’s [sic] thuggish and racist behavior[,]” “Dickerson
could have polled all his deputies to ask if any knew of or sensed any dangerous
propensities or ‘potential for trouble’” regarding Siclovan and LaVelle, and “Dickerson
could have asked a records technician to run any reports implicating Lavelle [sic] or
Siclovan . . . .” Resp., pp. 3-4. Plaintiff’s arguments are unavailing.
a. Classifications
Defendants argue that Siclovan, LaVelle, and Plaintiff were all properly classified
pursuant to the Jail’s policies. Defendants proffer evidence showing that LaVelle was
taken into custody at the Jail as a minor and was originally classified as a Maximum
security risk because of the seriousness of his pending charges, which included
Attempted Murder. Because of his good behavior at the Jail and limited criminal history,
however, LaVelle was subsequently reduced to a Medium security risk.7 With regard to
Siclovan, Defendants present evidence showing that Siclovan’s and Plaintiff’s
classifications were consistent with the Jail’s policies and the Oregon Jail Standards
7

Although LaVelle was accused of Attempted Murder, he was only convicted of
Attempted Assault. LeGore Decl., Ex. 12, p.1.
13 - OPINION & ORDER

(“OJS”). Weaver Decl., ¶¶ 7-9; Dickerson, ¶ 8. Defendants also proffer evidence
showing that from 2001 to Plaintiff’s alleged attack on June 7, 2010, the Jail only had
two instances of inmate on inmate attacks resulting in serious injury, and that Plaintiff’s
injury was more serious than those two prior attacks. Scholl Decl., ¶ 9.
In response, Plaintiff merely proffers his own interpretation of the facts, which
according to Plaintiff establish that Siclovan and LaVelle should have been classified as
Maximum security risks. Plaintiff proffers no additional evidence showing that the
combination of the pending charges against Siclovan or Lavelle, the nature of their
convictions, their criminal history, or their behavior warranted classifications. Plaintiff’s
unsupported arguments, by themselves, are insufficient to establish a genuine issue of
material fact as to whether Siclovan and LaVelle were improperly classified.
b. Override
Plaintiff asserts that Defendants violated his Eighth Amendment rights when they
failed to “override” Siclovan and reclassify him as a Maximum security risk. Plaintiff
contends that Defendants should have assessed Siclovan as a Maximum security risk
based on Siclovan’s tattoo and “demeanor”, Rush’s report that Siclovan had a “potential
for trouble”, and Joner’s March 4, 2010, complaint about Siclovan. Plaintiff’s assertions
fail.
The Jail’s override policy states:
Overrides: If it is determined that circumstances exist requiring a deviation
from what would be considered a “normal” classification assignment, the
Shift Supervisor will:
A. Assign the inmate to the appropriate higher or lower security
classification.
B. List the assignment in the computer as an Override and list the reasons
for the such override.

14 - OPINION & ORDER

LeGore Decl., Ex. 6, p. 4.
Plaintiff’s bald assertion that the override policy required Siclovan to be
reclassified as a Maximum security risk is insufficient to create a triable issue of fact
supporting his Monell claim. With respect to Joner’s report, Defendants refer me to
Exhibit 1 of the Berman Declaration supporting Plaintiff’s motion for summary
judgment. Exhibit 1 is a Jail Incident Report dated March 4, 2010. Berman Decl., Ex. 1,
p. 1. The report states that Joner, an inmate who had been placed in D-Pod, had been
“threatened” by Siclovan and had experienced previous “problems on the streets with . . .
Siclovan[,] who was [then] in E[-]Pod.” Id. The report provides that “Siclovan had just
found out that . . . Joner was in the facility and passed the word” and shows that the
situation between Joner and Siclovan was ultimately resolved by moving Joner to A-Pod.
Id. With regard to Rush’s statement, Defendants point me to Exhibit 4 of Berman’s
Declaration supporting Plaintiff’s motion for summary judgment, wherein Rush states
during her May 14, 2013, deposition testimony that “[Siclovan] had a potential for
trouble.” Id., Ex. 4, p. 30.
When considering the evidence before me, I conclude that it fails to create a
genuine issue of material fact as to whether Defendants’ alleged failure to reclassify
Siclovan as a Maximum security risk amounted to a policy or custom, let alone a policy
or custom that was deliberately indifferent to Plaintiff’s constitutional rights. The
evidence before me also fails to create a genuine issue of material fact as to whether
Defendants’ actions were the moving force behind Plaintiff’s alleged constitutional
violations. A careful review of Joner’s report merely shows that Joner’s encounter with
Siclovan was a separate, isolated incident that occurred over four months before

15 - OPINION & ORDER

Plaintiff’s June 7, 2010, altercation. In addition, Joner’s report only establishes that a
problem may have existed between Joner and Siclovan, not Plaintiff and Siclovan.
Indeed, the record is absent any evidence showing that Siclovan threatened any other
inmate, including Plaintiff before June 7, 2010.
Similarly, consideration of Rush’s deposition statements in their entirety does not
create a genuine issue of material fact supporting Plaintiff’s Monell claim. Although
Rush stated that Siclovan had a “potential for trouble[,]” she also stated that it was “only
[her] personal observation without any factual basis to support an official report” and that
“Siclovan had behaved well” up until his altercation with Plaintiff. Id.; Rush Decl., ¶ 7.
Rush also stated that despite being “frequently in C-Pod[,]” she “did not ever notice or
see any indication of racial tension or gang conflicts in C-Pod, and did not ever observe
any indication of a possible threat or risk of racial or gang violence.” Rush Decl., ¶ 5.
Rush further stated that she did not “observe any indication of a possible threat or risk of
harm to [P]laintiff” and that Plaintiff “appeared to be getting along with the other inmates
in [C-Pod].” Id. The record even shows that Rush was “surprised” that Siclovan and
Plaintiff had an altercation because “Plaintiff was a big man, who [Rush] estimate[d to be
around] 5’10” . . . and . . . well over 200 pounds[,]” whereas “Siclovan was a small man
who was perhaps 5’6” tall [and] probably did not weigh much more than 160 pounds.”
Id., ¶ 6. Consistent with Rush’s statements, Defendants also proffer evidence showing
that Hibbs stated he “did not ever notice any activity or behavior in C-Pod that indicated
any risk of harm to [P]laintiff[,] . . . did not observe any indication of gang behavior or
activity, and . . . did not observe any indication of any racial tension in . . . [C-]Pod” in
the weeks leading up to June 7, 2010. Hibbs Decl., ¶ 5. Hibbs also stated that he “did

16 - OPINION & ORDER

not receive any reports or complaints from any inmates about any tension, conflict, or
threats of violence in C-Pod,” and did not receive any reports from other Deputies about
any “tension, conflict, or threats of violence in C-Pod” in the time leading up to June 7,
2010. Id. Additionally, Defendants proffer evidence showing that like Rush and Hibbs,
Scholl did not notice “any inmate behavior” that would have “caused [him] to believe
that there was a risk of violence in C-Pod or danger to [P]laintiff from any other inmate”
and “did not notice any racial tensions or indications of racial violence” or “gang
violence [in C-Pod]” in the time leading up to June 7, 2010. Scholl Decl., ¶ 8. Notably,
Plaintiff proffers no evidence of Siclovan’s tattoo or “demeanor” to which he refers, and
does not articulate how Siclovan’s tattoo or “demeanor” warranted Siclovan to be
reclassified as a Maximum security risk.
Viewing all the evidence in the light most favorable to Plaintiff, I conclude that
there is no triable issue of fact supporting Plaintiff’s Monell claim. Even when
considering that Siclovan had a tattoo, Rush’s statement that Siclovan had “potential for
trouble”, and Joner’s complaint about Siclovan over four months before Plaintiff’s
alleged attack, I conclude that no reasonable jury could find that Defendants were on
actual or constructive notice such that their omissions would likely result in a
constitutional violation or that Defendants acted with deliberate indifference to Plaintiff’s
Eighth Amendment rights. Rather, the evidence simply establishes that Plaintiff’s June 7,
2010, altercation with Siclovan amounted to a one-time, isolated incident and was not the
result of a policy or custom that was deliberately indifferent to Plaintiff’s constitutional
rights or the moving force behind Plaintiff’s alleged constitutional violation.
///

17 - OPINION & ORDER

c. Ratification
“To show ratification, a plaintiff must show that the authorized policymakers
approve a subordinate’s decision and the basis for it.” Lytle v. Carl, 382 F.3d 978, 987
(9th Cir. 2004) (internal quotation marks and citations omitted). The policymaker must
have “knowledge of the constitutional violation and actually approve of it. A mere
failure to overrule a subordinate’s actions, without more, is insufficient to support a §
1983 claim.” Id. Based on the evidence before me, I conclude that Plaintiff fails to meet
his burden of establishing a triable issue of fact that Defendants unlawfully ratified
unconstitutional Jail policies. As discussed above, Defendants’ policies were not
unconstitutional. In addition, Plaintiff provides no evidence showing that Dickerson, or
anyone else with policymaking authority, had knowledge of any constitutional violation
and approved of it. Plaintiff’s argument that Dickerson could have done more before the
attack, including “implement[ing]” additional reports, “poll[ing] all his deputies” about
Siclovan and LaVelle, and “ask[ing] a records technician to run . . . reports implicating
Lavelle [sic] or Siclovan”, without more, is simply insufficient to create a triable issue of
material fact supporting Plaintiff’s ratification claim.
In sum, Plaintiff presents insufficient evidence creating a genuine issue of
material fact as to whether Defendants knew of and disregarded an excessive risk to
Plaintiff’s health and safety, or were otherwise deliberately indifferent to Plaintiff’s
constitutional rights. Defendants’ motion for summary judgment is granted as to
Plaintiff’s third claim for relief.
///

18 - OPINION & ORDER

C. Second Claim: Negligence
Plaintiff’s second claim for relief alleges that Columbia County acted negligently
when “hiring, training and supervis[ing] . . . deputies Hibbs and Scholl”, that Defendants
were negligent “in failing to timely and and [sic] expeditiously protect [P]laintiff from
attack, and or minimize injury,” and were negligent in “housing . . . a murder [sic] . . .
and . . . white supremacists in the general population.” Am. Compl., ¶¶ 11-13.
Defendants argue that there is an absence of any genuine issue of material fact as to
whether Defendants caused Plaintiff’s injury. I agree.
1. Hiring, Training, and Supervising
Plaintiff fails to create a triable issue of fact as to whether Columbia County’s
hiring, training, or supervision of Defendants caused Plaintiff’s injury. As discussed
above, the evidence shows that the policy under which Siclovan, LaVelle, and Plaintiff
were classified was proper; Siclovan, LaVelle, and Plaintiff were properly classified
under the Jail’s classification policy; and the staffing and inmate supervision at the time
Plaintiff was allegedly attacked was proper. In addition, Defendants proffer evidence
showing that the Jail’s policies met all of the requirements set forth under state and
federal law, including the OJS, and showing that the Jail’s policies were continually
reviewed and revised by Oregon State Sheriffs Association members, staff, and attorneys.
Dickerson Decl., ¶ 13. Plaintiff proffers no evidence disputing Defendants’ evidence.
Defendants’ motion for summary judgment as to Plaintiff’s claim that Columbia County
was negligent in hiring, training, or supervising Defendants is granted.
///

19 - OPINION & ORDER

2. Minimize Injury
Plaintiff also fails to create a triable issue of fact as to whether Defendants
“minimized” his injury after he was allegedly attacked. Defendants proffer evidence
showing that Hibbs attended to Plaintiff less than one minute after receiving a call that
Plaintiff was in need of medical attention. Hibbs Decl., ¶ 4, 6. The evidence also shows
that Plaintiff was examined soon after his altercation with Siclovan and LaVelle and was
taken to the hospital by ambulance within twenty-six minutes after his attack. Rush
Decl., ¶ 4; LeGore Decl., Ex. 3, p. 7. Plaintiff proffers no evidence creating a genuine
issue of material fact that Defendants caused Plaintiff’s injury or were otherwise
negligent. Defendant’s motion for summary judgment is granted.
3. Housing a Murderer and White Supremacist
To the extent Plaintiff claims that Defendants were negligent by “housing . . . a
murder [sic] . . . and . . . white supremacists in the general population”, Plaintiff’s claim
fails. Am. Compl., ¶ 13. As discussed above, Plaintiff falls short of creating a triable
issue of fact as to whether the Jail’s policies were improper. In addition, there is no
evidence showing that Siclovan or LaVelle are murderers or white supremacists.
Plaintiff presents no evidence showing that Siclovan or LaVelle have murdered anyone.8
Plaintiff also fails to present any evidence establishing that LaVelle is a white
supremacist. With regard to Siclovan, even assuming that he has a tattoo, Plaintiff
proffers no evidence showing that Siclovan’s tattoo, by itself, establishes that he is a
white supremacist. Even assuming that Plaintiff sufficiently established that Siclovan

8

The record only shows that LaVelle was convicted of Attempted Assault. LeGore
Decl., Ex. 12, p. 1.

20 - OPINION & ORDER

and LaVelle were white supremacists, that fact alone would not create a genuine issue of
material fact that Defendants caused Plaintiff’s injury or that Defendants were negligent.
In sum, Plaintiff fails to create a genuine issue of material fact supporting his
negligence claim. Defendants’ motion for summary judgment is granted.
II. Plaintiff’s Motion for Partial Summary Judgment
Plaintiff asserts he is entitled to summary judgment on all of his claims.
Plaintiff’s motion is denied.9
A. First Claim: Eighth Amendment
Plaintiff asserts that he is entitled to judgment as a matter of law because LaVelle
should have been classified as a Maximum security risk based on his attempted murder
charge. Plaintiff also asserts that he entitled to summary judgment because Siclovan was
not properly classified as a Maximum security risk based on the lightning bolt tattoo on
the side of his head, his “racially hostile and tyrannical demeanor[,]” Defendants’
“Overrides and periodic reviews”, Joner’s report, and Rush’s comment that Siclovan had
a “potential for trouble”. Pl.’s Opening Br., pp. 8-9. For the same reasons that I grant
Defendants’ motion for summary judgment, I deny Plaintiff’s motion for summary
judgment. The record is absent any evidence establishing that Defendants were
deliberately indifferent to Plaintiff’s constitutional rights. Notably, Plaintiff does not
even mention Hibbs and Scholls in his opening brief, let alone establish how they
personally violated his Eighth Amendment rights. Plaintiff also fails to establish how

9

It is worth mentioning that Plaintiff fails to support his arguments with specific cites to
the record. In places where Plaintiff proffers evidence specifically supporting his
arguments, he merely cites to the section of his brief entitled, “Undisputed Facts”. A
careful review of Plaintiff’s “undisputed facts”, however, demonstrates that many of
those facts are disputed and amount to Plaintiff’s own interpretation of the facts.
21 - OPINION & ORDER

Dickerson violated his Eighth Amendment rights where the undisputed evidence shows
that Dickerson was not even on duty or present at the Jail the day Plaintiff was allegedly
attacked. Dickerson Decl., ¶ 3, 10. Plaintiff’s motion for summary judgment on his
claim that Defendants misclassified LaVelle is denied.
B. Second Claim: Negligence
Plaintiff conclusory asserts that he is entitled to summary judgment on his
negligence claim because “[a]bsent negligence [sic] negligent hiring, training,
supervision, and discipline, [P]laintiff would not have been injured viciously.” Pl.’s
Opening Br., p. 11. In his reply, Plaintiff contends that “[a]bsent negligence in training
and supervision, Marcia Rush’s complaints about Siclovan as a ‘potential threat[]’ would
have been recorded and acted upon to protect [Plaintiff] . . . .” Pl.’s Reply, p. 2. Plaintiff
also contends in his reply that “Hibbs’ and Scholl’s failure to observe Siclovan as a
‘potential’ threat’ [sic] . . . , . . . failure to perceive Siclovan and Lavelle [sic] ‘running the
pod,’ and representing a hostile presence on the Pod . . . implicates negligent training and
supervision of Hibbs and Scholl.” Pl.’s Reply, p. 2. Plaintiff’s vague arguments and the
evidence on which he relies simply do not support the conclusions that Defendants
caused his injury or otherwise acted negligently as a matter of law. Plaintiff does not
specifically identify who acted negligently and proffers no evidence supporting the
conclusion that Defendants acted negligently in training and supervising Hibbs and
Scholl. Notably, Plaintiff does not even argue, let alone offer any evidence, establishing
how Defendants acted negligently in their “hiring”. Plaintiff’s motion for summary
judgment is denied.
///

22 - OPINION & ORDER

C. Third Claim: Monell Violations
Plaintiff’s Monell claim fails for the same reasons supporting Defendants’ motion
for summary judgment. As discussed above, Plaintiff proffers insufficient evidence
showing that the policies he challenges were deliberately indifferent or the moving force
behind his alleged constitutional deprivation. Plaintiff also presents insufficient evidence
showing that Columbia County was on actual or constructive notice that its policies
would likely result in a constitutional violation or that Dickerson disregarded a known or
obvious consequence of his action. Indeed, the evidence on which Plaintiff relies
supports the conclusion that Columbia County was not on notice that its policies would
likely result in a constitutional violation and that Dickerson did not disregard a known or
obvious consequence of his action. For example, Plaintiff relies heavily on the July 7,
2010, memorandum Dickerson wrote concerning the administrative review of the Jail’s
procedures “leading up to and following” Plaintiff’s attack. Berman Decl., Ex. 5, pp. 1-2.
In the July 7, 2010, memorandum, Dickerson concluded that Jail “[s]taff reported . . . that
a review of the classification of each of the individuals involved in [Plaintiff’s alleged
attack] were appropriately classified at the time . . . .” Id., p. 2. Dickerson’s July 7,
2010, report also concludes:
Staff reported that were no need for changes in the classification system
that were readily apparent. Because of his felony status, [Plaintiff] was a
higher[-]level classification than someone with only a misdemeanor, nonassaultive background. Inmates Siclovan and Lavelle [sic] were not
classified as Maximum Security . . . and did not initiate the contact with
[Plaintiff]. There is no way for Staff to know beforehand that there would
be trouble between [Plaintiff] and other inmates. Staff advised that at the
time of the classification, each inmate is asked if they have any concerns
about being housed with anyone prior to being placed in a pod. Gang
affiliations and other risky relationships are the focus of this questioning.
[Plaintiff] gave no indication that he had difficulties with others during
this questioning. Staff noted that a big contributor to [Plaintiff’ June 7,
23 - OPINION & ORDER

2010, altercation] was . . . the actions of [Plaintiff] in violating jail rules
by entering another inmate’s cell–something that cannot be solved by
changing an inmate’s classification.
Id.
Although Plaintiff disagrees with how Siclovan and LaVelle were classified, his
mere disagreement and the evidence he cites simply do not establish that Siclovan or
LaVelle were in fact misclassified or otherwise establish that he is entitled to summary
judgment on his Monell claim. It is also worth noting that Plaintiff does not even
articulate or cite which policy he challenges. Simply put, Plaintiff fails to meet his
burden of showing that the Jail’s policies were so deficient that they were deliberately
indifferent to his constitutional rights. Plaintiff’s motion for summary judgment as to his
Monell claim is denied.10
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment (dkt.
#57) is GRANTED and Plaintiff’s motion for partial summary judgment (dkt. #51) is
DENIED.
IT IS SO ORDERED.
Dated this

day of ____________, 2013.

MARCO A. HERNANDEZ
United States District Judge
10

Plaintiff also asserts he is entitled to punitive damages as a matter of law because
Dickerson “demonstrated a callous and reckless indifference to Mr. Batista’s
federally-protected rights to be free of an inmate vicious and maiming assault by
failing to adhere to classification norms on Lavelle [sic], heed Joner [sic] complaints
racial hostilities [sic], and Deputy Rush [sic] complaints.” Pl.’s Opening Br., p. 9.
Having concluded that Plaintiff is not entitled to summary judgment on any of his claims,
I conclude that he is not entitled to the punitive damages he seeks.
24 - OPINION & ORDER