York et al v. Peters et al

Filing 87

OPINION AND ORDER: Defendants motion for summary judgment 59 isGRANTED. Signed on 3/4/14 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
BRIAN WILLIAM YORK,
No. 6:13-cv-00676-MO
Plaintiff,
OPINION AND ORDER
v.
COLLETTE PETERS, Director, Oregon
Department of Corrections, in her
individual and official capacities, RICK
COURSEY, Superintendent of EOCI, in
his individual capacity, DR. JOSEPH H.
DIEHL, M.D., at EOCI, in his individual
capacity, NURSE-PRACTITIONER MS.
SMITH-LEE, at EOCI in her individual
capacity, MR. PHELPS, Plumber at EOCI,
in his individual capacity, CORRECTIONS
OFFICER ENDERSBY, at EOCI, in his
individual capacity, CORRECTIONS
OFFICER HARRISON, at EOCI, in his
individual capacity, CORRECTIONS
OFFICER NEWSOM, at EOCI, in his
individual capacity,
Defendants.
MOSMAN, J.,
Plaintiff Brian W. York, an inmate at Santiam Correctional Institution and formerly at
Eastern Oregon Correctional Institution (“EOCI”), asserts Eighth Amendment deliberate
indifference claims against Defendants arising from a slip-and-fall incident. Defendants moved
[59] for summary judgment. For the reasons that follow, I GRANT Defendants’ motion.
1 – OPINION AND ORDER

BACKGROUND
On November 25, 2011, Mr. York slipped and fell on a wet bathroom floor in his housing
unit at EOCI. (Compl. [4] at ¶ 13.) He alleges that a leaking toilet produced a pool of standing
water. Id. Defendant Matthew Endersby, a correctional officer, heard the fall and asked whether
Mr. York required medical attention. (Ofc. Endersby’s Decl. [61] at ¶ 5.) According to Officer
Endersby, Mr. York declined, while Mr. York recalls saying “I don’t know.” (Id.; Resp. [85] at
¶ 30.) Mr. York walked back to his bunk, reportedly in excruciating pain. (Compl. [4] at ¶ 14.)
Later in the day, Stuart Harrison, another correctional officer, learned that Mr. York
wanted to visit Health Services in connection with his slip and fall. (Ofc. Harrison’s Decl. [62]
at ¶ 6.) Officer Harrison declares that Mr. York told him he was able to walk on his own, while
Mr. York recalls saying the opposite. (Id. at ¶ 8; Resp. [85] at ¶ 30.) Officer Endersby and a
third officer, Newsom, 1 arrived to escort Mr. York to Health Services. (Ofc. Endersby’s Decl.
[61] at ¶ 7; Compl. [4] at ¶ 16.) According to Mr. York, the officers ordered him to walk despite
his complaints of pain. (Compl. [4] at ¶ 16–17.)
At Health Services, Mr. York received an ice pack and a ten-day supply of Tylenol and
Ibuprofen. (Dr. Shelton’s Decl. [64] at ¶ 6.) He returned numerous times in the following
weeks, complaining of pain in his right leg and back. Id. at ¶ 7–8. On December 21, 2011,
Joseph H. Diehl, M.D., ordered an X-ray of Mr. York’s lumbar spine. Id. at ¶ 9. On December
27, Donna Smith-Lee, N.P., a radiologist, performed the X-ray. Id. at ¶ 10. Mr. York asserts
that Nurse Smith-Lee “shoved [him] nearly 18” in his lower back” as he lay on his side on the Xray table. (Compl. [4] at ¶ 21.) Later, on January 30, 2012, Mr. York again saw Dr. Diehl, this
time demanding an MRI. (Dr. Shelton’s Decl. [64] at ¶ 12.) Dr. Diehl forwarded Mr. York’s Xray exam results to the Therapeutic Level of Care Committee, who denied the MRI request. Id.
1

The parties’ submissions do not reveal Officer Newsom’s first name.

2 – OPINION AND ORDER

at ¶¶ 12–13. Mr. York asserts that Dr. Diehl falsified the X-ray results. (Compl. [4] at ¶ 38;
Resp. [85] at ¶ 12.) In a later visit, on March 5, 2012, Nurse Smith-Lee diagnosed Mr. York
with severe degenerative disc disease and placed him on reduced work duty. (Dr. Shelton’s
Decl. [64] at ¶ 16.)
Mr. York alleges that each named defendant violated his right under the Eighth
Amendment to freedom from cruel and unusual punishment. (Compl. [4] at ¶¶ 36–49.) He
asserts that Colette Peters, Director of the Oregon Department of Corrections (“ODOC”), and
Rick Coursey, Superintendent of EOCI, “failed to provide [him] a reasonably safe living space.”
Id. at ¶¶ 36–37. Against Dr. Diehl, Nurse Smith-Lee, and the three correctional officers, he
alleges the conduct summarized above. Id. at ¶¶ 38–47.

Finally, he alleges that Tyler Phelps,

Assistant Physical Plant Manager at EOCI, showed deliberate indifference in failing to prevent
the bathroom floor from becoming wet, and that the three officers failed to post warnings of the
floor’s wet condition. Id. at ¶¶ 47–48.
DISCUSSION
Summary judgment is proper where “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 Court
must view the evidence in the light most favorable to the nonmoving party, drawing in his favor
all reasonable inferences from the facts. T.W. Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626, 630–31 (9th Cir. 1987).
The moving party bears the initial burden of informing the court of the basis of its motion
and providing evidence that demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden is met, the nonmoving party
must “present significant probative evidence tending to support its claim or defense.” Intel Corp.
v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (internal quotation omitted).
3 – OPINION AND ORDER

The nonmoving party fails to meet its burden if “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Id. (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Here, Defendants argue that many of Mr. York’s claims, including all asserted against
Ms. Peters, are barred by the Eleventh Amendment. They also contend that Mr. York’s Eighth
Amendment claims against Ms. Peters and Mr. Coursey improperly invoke vicarious liability
under 42 U.S.C. § 1983. Finally, Defendants argue that they are entitled to qualified immunity.
I.

Eleventh Amendment
The Eleventh Amendment bars suit in federal court against a state for damages without

the state’s consent. Green v. Mansour, 474 U.S. 64, 68 (1985). This immunity extends to suits
against a public officer in her official capacity. Brandon v. Holt, 469 U.S. 464, 471–72 (1985).
However, the Eleventh Amendment does not bar suit against state officials in their individual
capacities under § 1983, Hafer v. Melo, 502 U.S. 21, 30–31 (1991), nor prevent plaintiffs from
suing to enjoin conduct that violates the Constitution, Edelman v. Jordan, 415 U.S. 651, 664
(1974) (citing Ex Parte Young, 209 U.S. 123 (1908)).
In his complaint, Mr. York alleges that Officers Endersby and Harrison were negligent in
“failing to inspect the restrooms [and] failing to post any warning signs, caution tape or orange
safety cones for water on the floors.” (Compl. [4] at ¶ 47.) He alleges further that Mr. Phelps
was negligent in “allow[ing] one of the toilets to leak water onto the floor” and “failing to
oversee the actual plumbing repairs being performed by unlicensed inmates.” Id.at ¶ 48. He also
alleges that Nurse Smith-Lee battered him. Id. at ¶ 42.
Defendants construe Mr. York’s complaint as asserting state-law claims for negligence
and battery against state officials in the scope of their employment. Accordingly, they argue that

4 – OPINION AND ORDER

the Eleventh Amendment bars these claims. (Mem. in Supp. [60] at 6.) They also note that Mr.
York has sued Ms. Peters in her official capacity, and argue that all of his claims against her are
barred. (Mem. in Supp. [60] at 9; Compl. [4] at 1.)
In response, Mr. York makes clear that his allegations of negligence and battery pertain
to his Eighth Amendment claims, and that he does not seek to bring any state-law claims. (Resp.
[85] at ¶ 61.) For example, he asserts that Nurse Smith-Lee’s alleged battery upon him was cruel
and unusual punishment. Id. He also argues that he sued Ms. Peters in her official capacity only
to obtain an injunction requiring that he be given an MRI. Id. at ¶ 69.
I take Mr. York at his word. If all of his claims against Defendants in their individual
capacities rest on § 1983, then the Eleventh Amendment does not bar them. As to Ms. Peters,
Mr. York’s argument appears to be that ODOC’s failure to provide him with an MRI violates his
rights under the Eighth Amendment. If I credit this argument, then the Eleventh Amendment
does not prevent me from ordering Ms. Peters to furnish an MRI. The Eleventh Amendment
therefore is no obstacle to Mr. York’s claims against Defendants.
II.

Vicarious Liability
Vicarious liability is not recognized in a § 1983 suit. 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).
Mr. York alleged Eighth Amendment violations against Ms. Peters, director of ODOC,
and Mr. Coursey, Superintendent of EOCI. (Compl. [1] at ¶¶ 36–37.) He argues that both
Defendants knew or should have known of the “plumbing issues” in his housing unit, and
nonetheless failed to take action. (Resp. [85] at ¶ 24.a.) With regard to Ms. Peters, he asserts

5 – OPINION AND ORDER

that she should be charged with knowledge of the leaky toilets because “she and/or her staff”
likely receive reports concerning events at EOCI. Id. at ¶ 63.b. With regard to Mr. Coursey, he
offers EOCI’s response to his inmate grievance appeal. Id. at ¶ 63. In a letter, Mr. Coursey
noted that only two work orders pertaining to leaky toilets were submitted in the months leading
up to Mr. York’s injury. (Ex. A [85-1] at 1.) Mr. York argues that Mr. Coursey’s preparation of
this letter is sufficient direct participation to support § 1983 liability. (Resp. [85] at ¶ 63.)
To the contrary, Mr. York has not shown that either Defendant participated personally in
the violations he alleges. Even if Ms. Peters’s office was likely to receive periodic updates on
EOCI’s leaky toilets, Mr. York offers no evidence that Ms. Peters ever read any such report.
Instead, he suggests that she should be charged with knowledge of a dangerous condition at
EOCI if one of “her staff” learned of it. To charge Ms. Peters with an act or omission of one of
her agents would be to hold her vicariously liable, which is not permitted in a § 1983 action.
Similarly, Mr. Coursey’s response to Mr. York’s grievance appeal does not amount to personal
participation. Mr. Coursey’s letter was written on February 29, 2012. At best, it demonstrates
that Mr. Coursey learned of the wet bathroom floor some time after Mr. York was injured. It
does not demonstrate that he knew of any danger before the injury occurred.
Summary judgment will be granted in favor of Ms. Peters and Mr. Coursey.
III.

Qualified Immunity
The doctrine of qualified immunity shields government officials from suit “insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A state
official enjoys qualified immunity to suit under § 1983 unless the official violated a
constitutional right of the plaintiff that was “clearly established” when the violation occurred.

6 – OPINION AND ORDER

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation omitted). The court may
address either of these prongs before the other at its discretion. Id. at 236. Here, because I find
that Defendants violated no constitutional right, I need not determine whether any such right was
clearly established.
A.

Eighth Amendment Violations

Under the Eighth Amendment, prison officials “must take reasonable measures to
guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) (internal
quotation omitted). An inmate must prove two elements in order to hold a prison official liable
for harm: (1) “the inmate must show that he is incarcerated under conditions posing a substantial
risk of serious harm”; and (2) the official must have harbored “deliberate indifference to inmate
health or safety.” Id. at 833 (internal quotation omitted). The “deliberate indifference” element
requires that a prison official was “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists,” and that he “also dr[e]w the inference.” Id. at 837. The
official must then disregard the risk. Id. A prison official is not liable if he responded
reasonably, “even if the harm ultimately was not averted.” Id. at 844.
Mr. York alleges that Mr. Phelps showed deliberate indifference to a substantial risk of
harm by allowing the bathroom floor to remain wet long enough for him to slip on it. (Compl.
[4] at ¶¶ 48–49.) Similarly, he alleges that Officers Endersby and Harrison contributed to the
bathroom’s dangerous condition by failing to inspect it or to post warning signs. Id. at ¶ 47. He
alleges further that Officers Newsom, Harrison, and Endersby showed deliberate indifference to
his medical condition by compelling him to walk to Health Services despite knowing that his fall
in the bathroom had injured him. Id. at ¶ 45. He also alleges that Dr. Diehl and Nurse SmithLee were deliberately indifferent in withholding needed medical treatment. Id. at ¶¶ 38–41, 43.

7 – OPINION AND ORDER

1.

Slippery Floor

Generally, allegations of the risk of a fall posed by “‘slippery prison floors . . . do not
state even an arguable claim for cruel and unusual punishment.” LeMaire v. Maass, 12 F.3d
1444, 1457 (9th Cir. 1993). An exception exists where an inmate’s physical limitation, known to
prison officials, makes slippery floors especially likely to cause injury. See Frost v. Agnos, 152
F.3d 1124, 1129 (9th Cir. 1998) (distinguishing LeMaire because prison guards in Frost were
aware that the plaintiff frequently slipped and fell due to his reliance on crutches). The Tenth
Circuit has developed this line further, concluding that a slip-and-fall hazard does not pose a
“substantial risk of serious harm” unless it is “greater than the daily hazards faced by any
member of the general public” with a physical condition similar to the plaintiff’s. Reynolds v
Powell, 370 F.3d 1028, 1032 (10th Cir. 2004).
Here, the wet bathroom floor in Mr. York’s housing unit did not pose a “substantial risk
of serious harm” within the meaning of the Eighth Amendment. Unlike the plaintiff in Frost,
Mr. York has demonstrated no special susceptibility to slipping and falling of which Defendants
had notice. That leaves what the Ninth Circuit rejected in LeMaire: a mere slippery floor. As a
matter of law in this circuit, without something more, a wet prison floor is not a sufficiently
dangerous condition to support a claim of deliberate indifference. Any failure of Mr. Phelps and
Officers Endersby and Harrison to keep the bathroom tiles dry therefore did not violate Mr.
York’s rights under the Eighth Amendment.
2.

Deliberate Indifference to Medical Needs

8 – OPINION AND ORDER

“[D]eliberate indifference to serious medical needs of prisoners” is cruel and unusual
punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To
succeed on a medical needs claim, an inmate must show (1) a medical condition so serious that
failure to treat it could cause “further significant injury or the unnecessary and wanton infliction
of pain,” and (2) that the defendant demonstrated deliberate indifference to that condition. Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation omitted). Deliberate
indifference in turn requires the inmate to establish two elements: “(a) a purposeful act or failure
to respond” to an inmate’s medical condition, and “(b) harm caused by the indifference.” Id.
Where the defendant acted to treat the inmate, the defendant’s chosen course of treatment must
have been “medically unacceptable under the circumstances, . . . in conscious disregard of an
excessive risk” to the inmate’s health. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
Mr. York argues that Officers Harrison, Endersby, and Newsom showed deliberate
indifference in forcing him to walk to Health Services rather than providing a wheelchair. (Resp.
[85] at ¶ 6.) He notes that, in a response to his inmate grievance, Captain D. Heehn told him that
EOCI has a policy of providing a wheelchair “where the person being escorted is not able to
physically able [sic] to assist themselves in walking.” (Ex. I [85-1] at 9.) Mr. York goes on to
point out a Post Information Log entry made on the day of his fall, in which Officer Harrison
recorded that Mr. York told him “that he could not walk to medical.” (Resp. [85] at ¶ 9 (quoting
Ex. Y [85-1] at 42) (emphasis in original).) Mr. York observes that this entry directly contradicts
Officer Harrison’s recollection that Mr. York said he was capable of walking without assistance.
Id.
To the contrary, even if all of Mr. York’s assertions are credited as true, he has not shown
that the officers were deliberately indifferent to his medical needs. In order to establish

9 – OPINION AND ORDER

deliberate indifference, an inmate must demonstrate that the defendant’s act or omission caused
harm. Jett, 439 F.3d at 1096. Mr. York neither alleges nor presents evidence of any harm
resulting from the forced march, apart from pain. (Compl. [4] at ¶ 17; Resp. [85] at ¶ 8.) Nor
does he assert that this pain was greater than that caused by the fall. (Compare Compl. [4] at
¶ 14 (the fall caused “excruciating pain”) with id. at ¶ 17 (the forced walk to Health Services
caused “excruciating pain”).) Mr. York has not raised a genuine dispute concerning whether any
harm resulted from the officers’ alleged indifference to his injury. The officers’ direction that
Mr. York walk to Health Services therefore did not violate his Eighth Amendment rights.
As concerns Dr. Diehl, Mr. York refers to a form that the doctor prepared opining that
Mr. York’s X-ray results did not indicate a need for further treatment, and asserts without further
evidence that the form is “false.” (Resp. [85] at ¶ 12 (citing Ex. L [85-1] at 16; Ex. Q [85-1] at
22).) With regard to Nurse Smith-Lee, Mr. York argues that she showed deliberate indifference
to his medical needs by shoving him in the back while administering his X-ray exam. (Resp.
[85] at ¶ 97.h.)
Mr. York has not proven that Dr. Diehl’s and Nurse Smith-Lee’s conduct was medically
unacceptable. First, he presents no evidence to suggest that Dr. Diehl misrepresented the results
of his back X-ray. Second, his only argument to suggest that Nurse Smith-Lee disregarded his
medical needs is that she shoved him as he lay on the X-ray table. He has not shown that this
shove had any other purpose than “positioning him on the x-ray table,” a contact to which he
impliedly consented by seeking an X-ray. (Nurse Smith-Lee’s Decl. [65] at ¶ 6.) Moreover, he
presented no evidence that any harm resulted. Mr. York has not raised any genuine question of
material fact as to whether Dr. Diehl or Nurse Smith-Lee was deliberately indifferent to his
medical needs, and therefore has not established any Eighth Amendment violation.

10 – OPINION AND ORDER

Mr. York has not carried his burden of demonstrating a genuine dispute of material fact
as to whether any Defendant violated his Eighth Amendment rights. Defendants are therefore
entitled to qualified immunity.
CONCLUSION
Mr. York alleges no direct participation by Ms. Peters or Mr. Coursey in the events
underlying his claim, and the remaining Defendants are entitled to qualified immunity. Further,
because Mr. York has not shown that Defendants furnished constitutionally deficient medical
treatment, no injunction is necessary. Defendants’ motion for summary judgment [59] is
GRANTED.
IT IS SO ORDERED.
DATED this

4th

day of March, 2014.

/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge

11 – OPINION AND ORDER