Johnson v. Tillamook County, et al

Filing 69

ORDER: Adopting the Magistrate's Findings and Recommendation 62 . Defendants' Motion for Summary Judgment 47 is Granted in Part and Denied in Part as follows: Defendants' Motion as to Plaintiff's First Claim as to Defendant Moberg only is Granted, Defendants' Motion as to Plaintiff's request for lost wages is Granted, and the remainder of Defendants' Motion is Denied. Signed on 7/20/16 by Judge Anna J. Brown. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TRACY JOSEPH JOHNSON,

3:15-CV-00125-PK

Plaintiff,

ORDER

v.
TILLAMOOK COUNTY, BOBBY LUNDY,
TRACI HILLSTROM, VICTOR
GUTIERREZ, BRAD ROHDE, JENNY
MOBERG, RACHEL BRANTNER,
BRETT DYE, and GLEN WATSON,
Defendants.

BROWN, Judge.
Magistrate Judge Paul Papak issued Findings and
Recommendation (#62) on April 18, 2016, in which he recommends
the Court grant in part and deny in part Defendants' Motion (#47)
for Summary Judgment.

Defendants filed timely Objections (#67)

to the Findings and Recommendation.

The matter is now before

this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure 72(b).
When any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court must make
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a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).

DISCUSSION
Plaintiff alleges four claims against Tillamook County and
the eight individual Defendants1:

(1) an Eighth Amendment claim

against Lundy, Hillstrom, Gutierrez, Rohde, Brantner, Dye, and
Watson (Deputies) and Moberg in which Plaintiff alleges these
Defendants were deliberately indifferent to his medical needs;
(2) an Eighth Amendment Monell claim against the County in which
Plaintiff alleges the County’s “custom, policy, and practice”
violated his Eighth Amendment rights; (3) an Americans with
Disabilities Act (ADA) claim against the County and the Deputies
in which Plaintiff alleges these Defendants did not reasonably
accommodate him; and (4) a state negligence claim against the
County in which Plaintiff alleges the County failed to ensure his
health and safety.

All Defendants moved for summary judgment as

to each claim asserted against them.
The Magistrate Judge recommends the Court grant Defendants’

1

Seven of the eight individual Defendants (Lundy,
Hillstrom, Gutierrez, Rohde, Brantner, Dye, and Watson) are
Deputy Sheriffs of Tillamook County, and Defendant Moberg is a
nurse-employee of Tillamook County.
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Motion for Summary Judgment as to Defendant Moberg only on
Plaintiff’s First Claim; grant Defendants’ Motion as to all
Defendants on Plaintiff’s request for lost wages; deny
Defendants’ Motion as to Plaintiff’s Fourth Claim on the ground
that Oregon permits Plaintiff to proceed with his Fourth Claim
against the County even though it is based on the same facts as
his § 1983 claims; and deny Defendants’ Motion in all other
respects on the grounds that there are genuine disputes of
material fact that preclude summary judgment in favor of the
County and the Deputies.
I.

Liability of Individual Defendants
Defendants Victor Gutierrez, Rachel Brantner, and Glen

Watson object to the Magistrate Judge’s findings as to
Plaintiff’s claims against them.

These Defendants argue there is

not any evidence to support a conclusion that they personally
participated in the alleged violations that are the basis of
Plaintiff’s First and Third Claims.
A court may grant summary judgment to individual defendants
on a § 1983 claim if the plaintiff “failed to raise a triable
dispute as to whether these defendants personally participated in
the alleged constitutional violations.”
App’x 274, 275 (9th Cir. 2015).

Hinkley v. Vail, 616 F.

The plaintiff, however, must

establish “integral participation and individual liability” in a
case brought pursuant to § 1983.

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Jones v. Williams, 297 F.3d

930, 939 (9th Cir. 2002).

Mere presence “or membership in a

group, without personal involvement in and a causal connection to
the unlawful act” does not create liability under § 1983.

Id.

In other words, an officer cannot be held liable based solely on
membership in a group or team that engages in unconstitutional
conduct unless the officer had “integral participation” in the
alleged constitutional violation.

Chuman v. Wright, 76 F.3d 292,

294 (9th Cir. 1996).
The Magistrate Judge found the following pertinent facts:
Plaintiff experienced an allergic reaction while incarcerated by
the County as a result of exposure to flourescent lighting;
Defendant Jenny Moberg, the medical nurse on duty, advised “all
deputies” that were working on February 28, 2014, (the date
Plaintiff was incarcerated) that Plaintiff needed to be released
due to his medical issue; Plaintiff testified every time a deputy
walked by his cell or offered him food, he would summon them for
help regarding his condition and they would ignore him; and the
Officer Activity Log showed that all of the Deputy Defendants
other than Brad Rohde offered Plaintiff food and walked by his
cell to perform visual checks.
Thus, the Magistrate Judge found a reasonable trier of fact
could find the Deputies “acted with deliberate indifference by
ignoring [Plaintiff]’s direct requests for medical help,” and,
therefore, the Magistrate Judge recommends the Court deny the

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portion of Defendants’ Motion for Summary Judgment based on this
premise.

The Court adopts the Magistrate Judge’s finding and,

therefore, concludes a reasonable juror could find that
Gutierrez, Brantner, and Watson personally participated in the
alleged constitutional violations and were not merely present.
II.

Plaintiff’s ADA Claim
Defendants also argue in their Objection that Plaintiff’s

Third Claim in his First Amended Complaint regarding violation of
the ADA may only be brought against the individual Defendants in
their official capacity.

This issue does not appear to have been

raised in Defendants’ Motion for Summary Judgment and was not
specifically addressed by the Magistrate Judge in his Findings
and Recommendation.
The Court notes, however, in his First Amended Complaint
Plaintiff brings the Third Claim against Tillamook County and the
Deputies “in their official capacities.”
¶ 22.

First Am. Compl. at

The Court, therefore, concludes the Defendants’ Objection

is moot.
III. Plaintiff’s Negligence Claim
Defendants also assert in their Objections that Plaintiff
can bring his Fourth Claim against the County only pursuant to
Oregon Revised Statute § 30.265(2).

In his Response Plaintiff

acknowledges he brings this claim only against the County and not
the individual Defendants.
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First Am. Compl. at ¶ 28.

The Court,

therefore, concludes Defendants’ Objection as to this issue is
moot.
In summary, this Court has carefully considered Defendants’
Objections and concludes they do not provide a basis to modify
the Findings and Recommendation.

The Court also has reviewed the

pertinent portions of the record de novo and does not find any
error in the Magistrate Judge's Findings and Recommendation.

CONCLUSION
The Court ADOPTS Magistrate Judge Papak’s Findings and
Recommendation (#62) and GRANTS in part and DENIES in part
Defendants’ Motion (#47) for Summary Judgment as follows:
1.

GRANTS Defendants’ Motion as to Plaintiff’s First Claim

as to Defendant Moberg only,
2.

GRANTS Defendants’ Motion as to Plaintiff’s request for

lost wages, and
3.

DENIES the remainder of Defendants’ Motion.

IT IS SO ORDERED.
DATED this 20th day of July, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

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