Torres et al v. Snider et al

Filing 47

ORDER - Defendants' Motion for Partial Summary Judgment and Motion to Strike (ECF 35 ) is GRANTED in part and DENIED in part consistent with this Order. The claims remaining in the case are Plaintiff Torres' § 1983 claim against Defendant Snider and all Plaintiffs' state-law claims against all Defendants in their individual capacities. Signed on 4/23/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TERESA TORRES, et al.,
Plaintiffs,

Case No. 3:17-cv-00624-SI
ORDER

v.
DR. ROBERT W. SNIDER, et al.,
Defendants.

Michael H. Simon, District Judge.
Plaintiffs Teresa Torres, Aracely Hernandez, and Gloria Seleen, have brought an action
against Dr. Robert W. Snider, Dr. S. Shelton, and D. Brown, alleging that while Plaintiffs were
incarcerated at Coffee Creek Corrections Facility (“CCCF”) they were each sexually assaulted
by Dr. Snider during mandatory gynecological exams and other medical procedures. Before the
Court is Defendants’ Motion for Partial Summary Judgment and Motion to Strike. ECF 35. For
the reasons that follow, the motion is granted in part and denied in part.

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BACKGROUND
Plaintiffs Torres, Hernandez, and Seleen, have filed this putative “class action” complaint
bringing one federal claim and two state common law tort claims against Defendants. ECF 1.
Although Plaintiffs titled their Complaint as a “class action,” Plaintiffs never filed a motion for
class certification, which was due on February 1, 2018. ECF 16-17. Defendants assert that this
case should therefore not be considered a class action, which Plaintiffs do not contest in any of
their responsive pleadings. Accordingly, the Court will not treat the case as a class action.
In their Complaint, Plaintiffs Torres, Hernandez, and Seleen allege (1) federal 42 U.S.C.
§1983 (“Section 1983”) claims for violations of the Eighth Amendment’s prohibition against
cruel and unusual punishment, (2) state tort claims for medical negligence, and (3) state tort
claims for sexual battery. ECF 1. Plaintiff Seleen alleges that Dr. Snider saw her “on or about
September 1, 2016” for “an OB/GYN health issue.” Id. at ¶¶ 9-11. Plaintiff Seleen alleges that
Dr. Snider “exposed her vagina and touched her leg in an erotic and caressing fashion near her
vagina, . . . instructed her to disrobe in front of him and gave no privacy as he watched her
expose herself and then retrieve a device from her cervix.” Id. at ¶ 10. Plaintiff Torres alleges
that “[s]ince February 2016,” Dr. Snider saw her for six to twelve visits for “non-intimate”
conditions such as anemia and asthma. Id. at ¶ 17. Plaintiff Torres alleges that Dr. Snider
sexually assaulted her with intimate contact, including massaging her shoulders, the area around
her breasts, and “down to her buttocks” during these visits. Id. Plaintiff Torres also alleges that
she asked for a new provider and was not permitted to have one. Id. Plaintiff Hernandez alleges
that Dr. Snider visited her “on or about December 8, 2016” following her gallbladder surgery,
asked the nurse to leave the room, exposed Plaintiff Hernandez’s vagina and cesarean section
(“c-section”) scar, cupped her breast under her bra, and pinched her nipple. Id. at ¶¶ 12-16.

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Plaintiffs allege that Defendant Brown and Defendant Shelton “conspired to hinder or
obstruct prosecution of Dr. Snider and/or deprive inmates of safe care.” ECF 1. Plaintiff Torres
was released from prison before the filing of the complaint in this case; Plaintiff Seleen is
currently incarcerated but will be released before the trial of this matter. Plaintiff Hernandez is
incarcerated and will likely remain incarcerated beyond the time set for trial.
STANDARDS
A. Summary Judgment
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). 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). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility 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,” 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 issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
B. Exhaustion
The exhaustion provision of the Prison Litigation Reform Act (“PLRA”) states:
No action shall be brought with respect to prison conditions under
Section 1983 of this title, or any other Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Failure to exhaust under the PLRA is “an affirmative defense the
defendant must plead and prove.” Jones v. Bock, 549 U.S. 199, 204 (2007). The defendant has
the burden to prove that there was an available administrative remedy, which the prisoner failed
to exhaust. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). After the defendant has carried
that burden, the prisoner must produce evidence demonstrating that “the local remedies were
ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Williams v.
Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). The ultimate burden of proof, however, rests with
the defendant. Id.
DISCUSSION
Defendants have moved for partial summary judgment on the following grounds: (1)
Plaintiffs Hernandez and Seleen failed to fully exhaust all of their available administrative
remedies before the Complaint was filed against Defendants; (2) Plaintiffs’ § 1983 claims for
monetary damages against the named Defendants in their official capacities are barred by the
Eleventh Amendment; (3) Plaintiffs’ § 1983 claims must be based on an individual’s personal
involvement in depriving a constitutional right and cannot succeed under a respondeat superior
theory; (4) Plaintiffs’ failure to plead or prove economic damages on state law claims; (5)
Plaintiffs’ lack of entitlement to non-economic damages on state law claims; (6) Plaintiff Torres
failed to file a timely tort claim notice for all of her allegations in support of her state common
law tort claims; (7) the State of Oregon should be substituted in for the individual-named
Defendants on the state common law claims; (8) after substituting in the State of Oregon,
Plaintiffs’ state common law tort claims should be dismissed pursuant to Eleventh Amendment

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immunity; and (9) Defendants Brown and Shelton are shielded from § 1983 liability by the
doctrine of qualified immunity. ECF 35.1
Plaintiffs have conceded that suit against Defendants in their official capacities is barred
under the Eleventh Amendment and that Plaintiff Torres’ tort claim notice was partially late, and
therefore Plaintiff Torres relinquishes state claims not filed within the 180-day window (i.e.,
allegations occurring earlier than July 21, 2016). The Court therefore proceeds with the
remaining portions of Defendants’ motion for partial summary judgment that Plaintiffs do not
concede.
A. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) requires exhaustion of all available
administrative remedies before filing “any suit challenging prison conditions . . . .” Woodford v.
Ngo, 548 U.S. 81, 85 (2006). Inmates are required to exhaust all available grievance remedies
before filing a Section 1983 action, including appealing the grievance decision to the highest
level within the grievance system. Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002);
McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Under the PLRA, if a defendant shows
that there was an available administrative remedy and that the prisoner did not exhaust that
available remedy, then the prisoner has the burden of production to come forward with evidence

Defendants further seek to strike the additional “claims” in the caption, which are not
presented anywhere else in the body of the Complaint, as well as the details about other cases,
another settlement, and other allegedly “tortious individuals” who are not named defendants.
Defendants also seek to strike all references to this action being a “class action,” as Plaintiffs
failed to file the requisite motions to classify this action as such. ECF 35. Plaintiffs have
conceded these motions, and therefore the Court grants them. ECF 33. Defendants also add new
arguments in their Reply (ECF 42), including that Plaintiff Seleen cannot establish her claims,
but the Court disregards these arguments. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007)
(“The district court need not consider arguments raised for the first time in a reply brief.”)
1

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showing that there is something in his particular case that made the existing and generally
available administrative remedies effectively unavailable to him; however the ultimate burden of
proving exhaustion as an affirmative defense remains with the defendant. Albino v. Baca, 747
F.3d 1162, 1172 (9th Cir. 2014). In Oregon prisons, grievances are processed in accordance with
the Oregon Administrative Rules (Or. Admin. R.) governing the Grievance Review System
found in Chapter 291, Division 109. ECF 37 at ¶ 12.
Plaintiff Hernandez filed Grievance CCCF-2017-01-003, dated December 31, 2016, and
received on January 4, 2017. Id. at ¶ 30, Ex. 8. The grievance stated that while Hernandez was
housed in the infirmary recovering from gall bladder surgery, Dr. Snider came into her room and
while examining her surgical incision, he molested her. On January 4, 2017, Captain Alana
Bruns responded to Hernandez’s grievance stating that hers allegations had been reported to the
Oregon State Police and ODOC’s Special Investigations Unit. Id. at ¶ 31; see also ¶ 30, Ex. 8.
Plaintiff Hernandez did not file a first or second level appeal to grievance CCCF-2017-01-003.
Id. at ¶ 32.
Plaintiff Seleen filed Grievance CCCF-2017-11-049 dated November 22, 2017 and
received on November 29, 2017. Id. at ¶ 25, Ex. 7. Plaintiff Seleen alleges that she had been seen
by Dr. Snider on or around September 9, 2016, and that he had made her remove a medical
device from her cervix and “hot trash” it (meaning to dispose of it in a secure trash that other
inmates do not have access to). Id. Plaintiff Seleen alleged that Dr. Snider had touched her leg
near her vagina and was breathing heavily which made her feel like she was sexually assaulted.
Id. Plaintiff Seleen also did not file any appeals to this grievance. Id. at ¶ 27.
This suit was filed on April 20, 2017. ECF No. 1. Plaintiff Seleen filed her grievance
after the lawsuit was filed. Arrington Decl. at ¶¶ 25-29, Ex. 7. Accordingly, she did not exhaust

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the grievance review process before filing suit. Plaintiff Hernandez filed her grievance before the
filing of the lawsuit; however, she never appealed the response to her grievance. Arrington Decl.
at ¶¶ 30-34, Ex. 8.
Plaintiffs Hernandez and Seleen argue that they did not need to exhaust their
administrative remedies because they are raising constitutional claims. ECF 40. Plaintiffs cite to
an Order this Court issued in another case: Dillon, et al. v. Clackamas Co., et al., 3:14-cv-00820YY, ECF No. 160. That Order, however, does not address the failure to exhaust administrative
remedies. See Dillon, 3:14- cv-00820-YY, ECF No. 160. Plaintiffs Seleen and Hernandez have
offered no argument for why “the local remedies were ineffective, unobtainable, unduly
prolonged, inadequate, or obviously futile” nor any other argument for why the PLRA
exhaustion requirement does not apply. Williams, 775 F.3d at 1191. The federal claims of
Plaintiffs Hernandez and Seleen are therefore dismissed.
B. Section 1983 Claims against Defendants Brown and Shelton
In order to be held liable under Section 1983 each individual defendant must be
personally involved in the constitutional deprivation. “A plaintiff must allege facts, not simply
conclusions, that show that an individual was personally involved in the deprivation of his civil
rights. Liability under § 1983 must be based on the personal involvement of the defendant.”
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). “Government officials may not be
held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). “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.” Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989).

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The only factual assertions made in Plaintiffs’ complaint regarding the actions of
Defendants Brown or Shelton are that Plaintiff Hernandez asked Brown for a new doctor in
December 2016, which Brown refused “unless she had a ‘documented incident.’” Plaintiffs
assert that this denial was months after the OSP began investigating Snider for sexual abuse, and
two years after a report of abuse by two other inmates. Plaintiffs also assert that Shelton
promoted Snider to Chief Medical Officer in 2015. The Complaint contains no other factual
assertions about these two Defendants. Because Plaintiffs have not alleged facts that provide
some basis for why Defendants Brown and Shelton were personally involved in the alleged
deprivation of Plaintiffs’ constitutional rights, the § 1983 claims against Brown and Shelton are
dismissed. The Court therefore need not reach Defendants’ alternative argument that Brown and
Shelton are entitled to qualified immunity from the § 1983 claims.
C. Failure to Plead Economic Damages
Defendants argue that pursuant to Rule 18 of the Oregon Rules of Civil Procedure,
economic damages must be specifically pleaded in both nature in amount. Defendants argue that
because Plaintiffs did not specifically plead economic damages for their state-law claims,
Defendants are entitled to summary judgment on those claims. Under Erie R. R. Co. v. Tompkins,
304 U.S. 64 (1938), when a federal court exercises diversity or pendent jurisdiction over state
law claims, “‘the outcome of the litigation in the federal court should be substantially the same,
so far as legal rules determine the outcome of a litigation, as it would be if tried in a State
court.’” Felder v. Casey, 487 U.S. 131, 152 (1988). State law limitations on damage awards are
outcome determinative and must be applied under Erie. See Guaranty Trust Co. of N.Y. v. York,
326 U.S. 99, 109 (1945). This means that Oregon law limiting damages will apply to the state
law claims in this case. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 429-31 (1996).

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But it is equally clear that the determination of whether a pleading standard has been met
with adequate specificity is a procedural one and is governed by federal rules, as the issue is
directly covered by the Federal Rules of Civil Procedure. “The Federal Rules of Civil Procedure
apply irrespective of the source of subject matter jurisdiction, and irrespective of whether the
substantive law at issue is state or federal.” Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1102
(9th Cir. 2003). Because the Federal Rules of Civil Procedure governs the specificity required in
pleading, Defendants’ argument that Plaintiffs’ Complaint does not plead their economic
damages with adequate specificity under the Oregon Rules is without merit. See generally
McLean v. Pine Eagle School Dist., No. 61, 194 F. Supp. 3d 1102, 1122-23 (D. Or. 2016)
(denying summary judgment based on the argument that Plaintiff’s Complaint did not “expressly
allege a specific amount of damages” for Oregon state tort claim and noting that Rule 8(a) of the
Federal Rules of Civil Procedure applied). Accordingly, the notice pleading standard under Rule
8(a)(2) of the Federal Rules of Civil Procedure applies to Plaintiffs’ allegations regarding
economic damages. Defendants’ motion for summary judgment against the state-law claims on
this basis is denied.2
D. Substituting the State of Oregon for the Individually-Named Defendants
Defendants argue that the State of Oregon should be substituted for the individuallynamed Defendants in Plaintiffs’ state law claims. Defendants argue this is because pursuant to
the OTCA 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

Defendants’ argument that Plaintiff cannot be awarded non-economic damages is based
on the premise that Plaintiffs have failed to adequately plead economic damages. Because the
Court finds that Plaintiffs have adequately pleaded economic damages under the Federal Rules,
the Defendants’ argument regarding non-economic damages also fails.
2

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body only.” Or. Rev. Stat. § 30.265(1); Demaray v. Dept. of Environmental Quality, 127 Or.
App. 494, 502 (1994). Defendants, however, have not met their burden in establishing, nor have
they even argued, the absence of a genuine dispute of whether Defendants’ actions were “within
the scope of their employment or duties.” See, e.g., Walthers v. Gossett, 148 Or. App. 548 (1997)
(noting that the question of whether an employee’s alleged sexual abuse of a patient “is typically
a jury question” and holding that trial court did not err in finding that acts of sexual abuse were
not within the course and scope of employee’s employment.) It is therefore not clear whether the
conduct at issue in this case falls within the scope of Or. Rev. Stat. § 30.265(1) and thus whether
Plaintiffs must bring an action only against the State of Oregon. Defendants make no other
arguments for why the state law claims against any of the Defendants should be dismissed.
CONCLUSION
Defendants’ Motion for Partial Summary Judgment and Motion to Strike (ECF 35) is
GRANTED in part and DENIED in part consistent with this Order. The claims remaining in the
case are Plaintiff Torres’ § 1983 claim against Defendant Snider and all Plaintiffs’ state-law
claims against all Defendants in their individual capacities.
IT IS SO ORDERED.
DATED this 23rd day of April, 2019.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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