Pickett v. Peter et al

Filing 36

ORDER OF DISMISSAL. This Court dismisses Plaintiff's Second Amended Complaint 29 for failure to state a claim. This Court concludes, based on a review of Plaintiff's Second Amended Complaint and because Plaintiff has been given tw o prior opportunities to amend, that the deficiencies in Plaintiff's Second Amended Complaint cannot be cured by amendment. Accordingly, the dismissal is with prejudice. This Court denies Plaintiff's renewed Motion for Appointment of Counsel 32 . IT IS SO ORDERED. Signed on 3/13/2017 by Judge Michael H. Simon. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Case No. 6:16-cv-00003-SB

APPLETON PICKETT, JR.,

ORDER OF DISMISSAL

Plaintiff,
v.

COLETTE S. PETERS, Director of Oregon
of Con-ections, et al.,
Defendants.

MICHAEL H. SIMON, District Judge
Plaintiff, an inmate at Snake River Con-ectional Institution (SRCI), brings this civil rights
action pro se challenging the conditions of his confinement. For the reasons set forth below, this
Court dismisses Plaintiffs Second Amended Complaint (ECF No. 29), and denies his Motion for
Appointment of Counsel (ECF No. 32).

STANDARDS
This Court must dismiss an action initiated by a pnsoner seeking redress from a
governmental entity or officer or employee, if the Comi determines that the action (i) is frivolous

1 - ORDER OF DISMISSAL

or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. §§ l 915(e)(2)(B) and l 915A(b).
In order to state a claim, a plaintiff must allege facts which, when accepted as true, give rise
to a plausible inference that the defendants violated plaintiffs constitutional rights. Ashcroftv. Iqbal,
556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). "A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678;

Moss v. US. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). "A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556
U.S. at 678 (internal quotations omitted). Plaintiff is proceeding prose, and therefore this Court
construes the pleadings liberally and affords Plaintiff the benefit of any doubt. Erickson v. Pardus,
551 U.S. 89, 94 (2007).

DISCUSSION
This Court previously dismissed Plaintiffs original and amended Complaints. The Court
granted Plaintiff leave to amend Claims II, III, and VIII only. Order of Dismissal (ECF No. 18) at
14. In response to that Order, Plaintiff filed a Second Amended Complaint re-alleging those claims
(using the same numerical designations), and a claim for the denial of adequate medical care (Claim
IV).

I.

Claim II: "Continuing Chain Conspiracy"
Claim II arises out of a knee injury that Plaintiff suffered in 2006, and then re-injured on May

22, 2015 when he slipped and fell in a puddle of water. See Second Am. Comp!. at 20; Order of
Dismissal (ECF No. 18) at 9-1 O; Order of Dismissal (ECF No. 11) at 7. Plaintiff alleges that the
Oregon Department of Corrections (ODOC), Colette Peters, Jason Bell, Dr. Greg Lytle, and Dr.

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Elliott Blakeslee 1 violated his rights under the Americans with Disabilities Act (42 U.S.C. § 12101

et seq.), theRehabilitationAct(29U.S.C. § 794 et seq.), and42 U.S.C. § 1983. Second Am. Comp!.
at 19-20. 2

A.

ADA/Rehabilitation Act

This Court previously dismissed Plaintiffs claims under the ADA and the Rehabilitation Act,
as follows:
Plaintiffs allegation that he was denied adequate medical treatment for his
knee does not state a claim for a violation of the ADA or the Rehabilitation Act
because he does not allege that the denial of medical treatment was because of or
motivated by a mental or physical handicap. See Simmons, 609 F.3d at 1022 ("ADA
prohibits discrimination because of disability, not inadequate treatment for
disability"); Pickettv. Williams, 498 Fed. Appx. 699, 701 (9th Cir. 2012) (affirming
grant of summary judgment because Pickett failed to raise genuine dispute of fact as
to whether he suffered disability-based discrimination); Walton v. US. Marshals
Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (plaintiff must allege discrimination
because of a disability to state claim under the Rehabilitation Act).
Order of Dismissal (ECF No. 18) at 10-11 (addressing Plaintiffs Claim IV(B)).
Plaintiffs Second Amended Complaint suffers from the same deficiencies. Plaintiff fails to
allege any facts to support a claim under the ADA or Rehabilitation Act because he does not allege
that Defendants denied him medical treatment because of a mental or physical handicap. See

Simmons v. Navajo Cty., 609 F.3d 1011, 1022 (9th Cir. 2010) ("The ADA prohibits discrimination
because of disability, not inadequate treatmentfor disability."); Montanezv. Velasco, No. 15-16704,
1

Plaintiff lists "Dr. Elliott" as a Defendant at page thirteen of the Second Amended
Complaint. In the text of Claim II, in contrast, Plaintiff references "Dr. Elliott Blakeslee." See
Second Am. Comp. at 20. The Court assumes that this is the same individual.
2

Plaintiff also includes allegations against Dr. Phillips and Dr. Steven Shelton. Neither
doctor is included as a Defendant in the caption of the Second Amended Complaint or in the
listing of Defendants contained therein. Plaintiffs reference to those doctors in his claims for
relief does not suffice to include them as Defendants in this action. See Fed. R. Civ. P. 1O(a)
(requiring plaintiff to list all parties in the caption of the complaint).

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2016 WL 7423054, at *1 (9th Cir. Dec. 23, 2016) (noting that there is no significant difference in
the analysis of rights and obligations created by the ADA and the Rehabilitation Act).

B.

§ 1983 Claims

This Court originally dismissed Plaintiffs § 1983 claim because it was "premised solely on
legal conclusions, and fails to allege facts giving rise to a reasonable inference that Defendants
violated Plaintiffs statutory or constitutional rights." Order of Dismissal (ECF No. 11) at 5.
Additionally, this Court noted that the claim is "time-barred with respect to conduct more than two
years prior to the filing of the Complaint." Id. at 6.
In its second Order of Dismissal, the Court dismissed the claim on the basis that (1) the claim
was not limited as far as practicable to a single set of circumstances; (2) conspiracy is not itself a
constitutional violation and must be supported by an underlying constitutional violation; and (3)
most of Plaintiffs allegations appear to be time barred. Order of Dismissal (ECF No. 18) at 6.
Plaintiff was given leave to amend "to assert claims for the denial of adequate medical care ...
which accrued on or after December 21, 2013." Id. at 7.
Plaintiff re-alleges his § 1983 conspiracy claim in his Second Amended Complaint. For the
reasons set forth below, this Comt dismisses the claim because Plaintiff has failed to allege facts to
suppo1t a reasonable inference that Defendants were deliberately indifferent to his serious medical
needs.
1.

ODOC Director Peters

Plaintiff alleges that Director Peters "had personal knowledge of ongoing and post culpable
convictional [sic] & civil violations of her subordinates, and [was] deliberately indifferen[t] for
failUl'e to prevent a recurrence of such misconduct, thus failing in her responsibilities to provide for
the health & safety of Mr. Pickett's cries for help." Second Am. Comp!. at 19. Plaintiff further

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alleges that he wrote Peters on October 25, 2012 and May 26, 2015, and that "there was evidence
from her (predecessor) Director- Max Williams, from the first lawsuit, filed, on June 15, 2009." Id
Plaintiff alleges no facts to support a reasonable inference that Peters acted in conscious
disregard to an excessive risk to Plaintiffs health or safety, or knew of the constitutional violations
of her subordinates and failed to act to prevent them. See Crowley v. Bannister, 734 F.3d 967, 977
(9th Cir. 2013) (supervisor may be liable ifhe is personally involved in the constitutional violation,
or there is a sufficient causal connection between his wrongful conduct and the violation); Taylor
v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (supervisor is liable for constitutional violations of his
subordinates only ifhe participated in or directed the violations, or knew of the violations and failed
to prevent them). On the contraiy, Plaintiffs allegations consist of legal conclusions and "a
formulaic recitation of the elements of a cause of action." See Iqbal, 556 U.S. at 678. Accordingly,
Claim II is dismissed as to Defendant Peters.
2.

Acting Superintendent Bell

Plaintiff alleges that on May 22, 2015, he slipped and fell after stepping in a puddle of water
caused by a leaky roof. Second Am. Comp!. at 20. With no supporting facts, Plaintiff alleges that
Acting Superintendent Jason Bell was negligent and deliberately indifferent to Plaintiffs
constitutional right to be "free from unjustified intrusions." Id
This Court previously dismissed Plaintiffs negligence claim on the basis that "the negligent
conduct of state officials does not give rise to a constitutional violation." Order of Dismissal (ECF
No. 11) at 7 (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). Moreover, Plaintiff alleges no
facts to suppott a reasonable inference that Bell was aware of the "leaky roof' and acted with
deliberate indifference to Plaintiffs safety in failing to repair it. Accordingly, Plaintiff fails to state
an Eighth Amendment claim. See Farmer, 511 U.S. at 834, 837 (Eighth Amendment claim for
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failure to protect requires proof that defendant acted with deliberate indifference to excessive risk
of harm).
3.

Drs. Lytle and Blakeslee

In Plaintiffs First Amended Complaint, Plaintiff alleged that Drs. Lytle and Blakeslee were
part of a "continuing chain conspiracy." With respect to their specific conduct, Plaintiff alleged:
Dr. Lytle, of (TRCI) committed fraud concerning [Plaintiffs] knee injury under
FRCP 9(b) by alleging on his diagnosis negative study, on date of February 21st,
2006 .... On August 03rd, 2010-Dr. Elliott, of (SRCI), committed a conspiracy by
affirming Dr. Lytle-diagnosis of negative study, but their [sic] were [sic] something
suspicious, because Dr. Elliott authorized Plaintiff a Bottom Bunk Bed on the
Bottom tier on November 9th, 2011, because it were [sic] medically necessary....
On Februaty 06th, 2014-Plaintiff discovered the fraud by Dr. Bristol x-ray diagnosis.
Am. Comp!. (ECF No. 17) at 8-9.
In his Second Amended Complaint, Plaintiff omits the dates of Lytle and Blakeslee's
diagnoses and simply alleges that Lytle "committed fraud" in rendering his diagnosis, and Dr.
Blakeslee "affirmed" the diagnosis. Second Am. Comp!. at 20. Plaintiff alleges that he discovered
the fraud on February 6, 2014 (but omits the allegation that his discovery was premised on Dr.
Bristol's 2014 diagnosis). Id.
Plaintiff fails to state an Eighth Amendment claim for the denial of adequate medical
treatment because he alleges facts which, at best, support a reasonable inference that he disagrees
with the diagnoses of Lytle and Blakeslee. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir.
2014) (difference of opinion between a physician and a prisoner does not amount to deliberate
indifference). Plaintiffs conclusory allegation that Lytle "committed fraud," does not cure this
deficiency. See Iqbal, 556 U.S. at 678 ("A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do."). Even if the Court were to take into
account Plaintiffs previous allegation that Dr. Bristol rendered a different diagnosis in 2014, a mere
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difference of medical opinion between doctors is insufficient to establish deliberate indifference.

Toguchi v. Chung, 391F.3d1051, 1058 (9th Cir. 2004). For all of these reasons, Plaintiff has failed
to state a § 1983 claim against Lytle or Blakeslee.
4.

ODOC

Plaintiff alleges that ODOC is responsible for the health and safety of its prisoners and is
liable for the conduct of its employees. Second Am. Comp!. at 20. It is well settled that a state
agency is entitled to sovereign immunity from suit. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 144 (1993). Accordingly, Plaintiffs Claim II is dismissed in its entirety

for failure to state a claim.

II.

Claim III: "Continuing Retaliation in Discrimination Violations"
In Claim III, Plaintiff alleges twenty different incidents which he links together as one claim

for "continuing retaliation." Second Am. Comp!. at 21-24. This Court previously dismissed the claim
on the basis that it violated Fed. R. Civ. P. 8(a) and lO(b), and because Plaintiff failed to allege facts
giving rise to a reasonable inference that "(1) Plaintiff engaged in constitutionally protected conduct;
(2) Defendants took adverse action against him; (3) there is a causal connection between the adverse
action and the protected conduct; (4) the Defendants' acts would chill or silence a person of ordinary
firmness; and (5) Defendants' retaliatory action did not advance legitimate goals of the institution."
Order of Dismissal (ECF No. 18) at 8 (citing Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir.
2012). Plaintiffs current claim suffers from the same deficiencies. Accordingly, this Court dismisses
Claim III for failure to state a claim.

III.

Claim IV: "Deliberate Indifference to Serious Medical Need"
Plaintiff alleges thathe was injured in a series of accidents on May 22, 2015; March 9, 2014;

July 13, 201 O; January 21, 2006; and June 8, 2005. Second Am. Comp!. at 25-27. With regard to the

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conduct of the Defendants, Plaintiff alleges that (1) on November 9, 2011, Dr. Blakeslee restricted
Plaintiff to a bottom bunk on the lower tier "but concealed the fraud of his right knee;" (2) on
September 12, 2010, Dr. Shelton was "a witness for the state [and] help[ed] conceal the fraud that
Dr. Blakeslee and Dr. Lytle committed;" and (3) on January 21, 2006, Dr. Lytle "concealed"
Plaintiffs trne diagnosis of his knee injury and broken toes. Id. at 26-27.
The Court previously dismissed this claim, with prejudice, after g1vmg Plaintiff an
opportunity to amend. Order of Dismissal (ECFNo. 18) at 9-10. This Court adheres to that decision.
Additionally, the Court dismisses this claim for the reasons set forth above as to Claim II.

IV.

Claim VIII: "Intentionally Interferences with Access to the Courts"
Plaintiff alleges that Defendants interfered with his access to the comis from 2010 to 2016,

in violation of his rights under the ADA, the Rehabilitation Act, and the First and Fourteenth
Amendments to the U.S. Constitution. Second Am. Comp!. at 28-34. Plaintiff alleges that
Defendants (I) denied him extra time in the law libra1y; (2) denied him evening access to the libraiy;
(3) made him work on a defective computer; (4) denied his request for thirty-six summonses and
copies; and (5) made derogatory and threatening remarks. Id. at 29-34. Additionally, Plaintiff alleges
that he was unable to print the last page of a Petition for Review to be filed in the Oregon Supreme
Court, and a Motion for Relief from Habeas Judgment was deleted from his thumb drive. Id. at 29,
31. Finally, Plaintiff alleges that (1) on July 7, 2016, he received a response to his grievance
concerning incompatible cell mates; (2) on June 16, 2015, he requested a printout of his appointment
with Health Services so he could schedule his libra1y time around his medical appointments; (3) on
March 9, 2014, he fell in the kitchen; (4) on June 11, 2014, he was transported to the eye doctor for
surgery; and (5) he was "threatened of being fire[d] for going to the legal library." Id. at 29-33.

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This Court previously advised Plaintiff that in order to state a claim under the ADA and
Rehabilitation Act, he must allege facts "giving rise to a reasonable inference that he has a disability,
or is perceived as suffering from a disability, that substantially limits one or more major life
activities, andthat he was discriminated against because of the disability." Order of Dismissal (ECF
No. 18) at 12 (citing Simmons, 609 F.3d at 1022; Pickett, 498 F. App'x at 701; Walton, 492 F.3d at
1005). Plaintiff has failed to do so.
This Court also advised Plaintiff that in order to state a claim for the denial of access to the
courts, "he must allege facts giving rise to a reasonable inference that he suffered an actual injmy
to contemplated or existing litigation as a result of each Defendant's conduct." Id. at 12 (citing Lewis

v. Casey, 518 U.S. 343, 351-53 (1996); Nevada Dep't ofCorr. v. Green, 648 F.3d 1014, 1018 (9th
Cir. 2011 )). Plaintiff has failed to do so. Although Plaintiff references the progress and rulings in his
state and federal cases, he does not allege how the Defendants' alleged conduct caused him to suffer
an actual injmy in those proceedings.
Plaintiffs allegation that on June 2, 2014, his Motion for Relief from Habeas Judgment was
deleted from his thumb drive (Second Am. Comp!. at 31) does not support a reasonable inference
that he suffered actual injmy to court access because he filed the motion on July 3, 2014. See id.
Plaintiff fails to allege how this sequence of events caused an actual injury.
Plaintiffs allegation that he suffered actual injury with respect to a motion filed in Pickett

v. Williams, Civ. No. 6:09-cv-00689-TC, affirmed, No. 11-35933, 498 F. App'x 699 (9th Cir. 2012),
is incomprehensible:
On April 17, 2013, Plaintiff tried to file a Motion to Set Aside Judgment in the
United States District Court for the State of Oregon - case of Pickett v. Willaims,
case no. # 11-35933. The results: "Denied." Id. Plaintiff alleges that prison officials
denied access to the courts by providing accommodations in the prison legal library,

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and plaintiff could not collateral attack, state prison defendants at the pleading &
appeals stages, caused plaintiffs actions to be dismissed.
Second Am. Comp!. at 32.
Moreover, this Court takes judicial notice that Plaintiff filed his Motion to Set Aside the
Judgment on April 22, 2013. Pickett, No. 6:09-cv-00689-TC, Motion to Set Aside Judgment (ECF
No. 118). Hence, to the extent that Plaintiff is alleging that Defendants engaged in conduct on April
17, 2013, that interfered with his ability to file his Motion for Relief for Judgment, there are no facts
to support a reasonable inference that he suffered an actual injury to court access.
Plaintiffs allegation that on April 3, 2010, "he could not get the accommodations for more
time like he requested, and had to cut corners to get his filing done diligently" (Second Am. Comp!.
at 32) pertains to conduct more than two years prior to the filing of Plaintiffs original Complaint and
therefore is time barred. See Sain v. Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (Oregon's two-year
limitations governs§ 1983 civil rights action). In any event, the right of access to the courts does not
encompass the right "to litigate effectively once in court." Lewis, 518 U.S. at 354.
Finally, to the extent Plaintiff is alleging an equal protection claim, he fails to state a claim
because he alleges no facts to support a reasonable inference that Defendants intentionally, and
without a rational basis, treated him differently from others who were similarly situated; or
intentionally discriminated against him on the basis of his membership in a protected class. See N

Pacifica LLC v. City ofPacifica, 526 F.3d 478, 486 (9th Cir. 2008) (setting forth elements of"class
of one" equal protection claim); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (setting
forth elements of equal protection claim based on membership in protected class). For all of these
reasons, Plaintiff has failed to state a claim.

Ill

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V.

Remaining Defendants
The Court dismisses the following Defendants because Plaintiff includes no allegations

against them: Lieutenant D. Sherbondy, Correctional Officer Duncan, Correctional Officer Bunn,
SAIF Corporation, Mr. Richr, Mr. Eastwood, Mr. Romyer, Ms. Chictin, Ms. Joyce, K. Macoby, and
Correctional Officer Lawson.

CONCLUSION
Based on the foregoing, this Court dismisses Plaintiffs Second Amended Complaint (ECF
No. 29) for failure to state a claim. This Court concludes, based on a review of Plaintiffs Second
Amended Complaint and because Plaintiff has been given two prior opp01tunities to amend, that the
deficiencies in Plaintiffs Second Amended Complaint cannot be cured by amendment. Accordingly,
the dismissal is with prejudice. This Court denies Plaintiffs renewed Motion for Appointment of
Counsel (ECF No. 32).
IT IS SO ORDERED.

&DATED this !}_:._ day of March, 2017.

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United States District Judge

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