Matthews v. Ulrich

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DANIEL J. MATTHEWS, Case No. 2:16-cv-01958-SB

Plaintiff, ORDER

Vv,

J. TAYLOR, et al.,

Defendants.

HERNANDEZ, District Judge:

Plaintiff, an inmate at the Eastern Oregon Correctional Institution (EOCI), brings this civil

rights action pursuant to 42 U.S.C. § 1983. Currently before the Court are Plaintiff's Motions to

Amend and for a Preliminary Injunction (ECF Nos. 9 and 16).

BACKGROUND

Plaintiff filed his original Complaint on October 6, 2016, alleging that Defendants violated

his First, Fifth, Eighth, and Fourteenth Amendment rights by denying him adequate mental health

care, subjecting him to excessive force, refusing to properly process his grievances, mishandling his

moail, and subjecting him to harassment and retaliation. Compl. (ECF No. 2) at45. On December 21,

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2016, the Court granted Plaintiff's Application to Proceed Jn Forma Pauperis, denied his Motion

for Appointment of Counsel, and sought waiver of service from the Defendants. Orders (ECF No.

5, 6, and 7). On January 19, 2017, the Court granted Defendants’ motion to extend the time to file

a waiver of service to February 22, 2017. Order (ECF No. 12). Consequently, as of this date,

Defendants have not been served or waived service of process.

DISCUSSION

I. Motion to Amend

Plaintiff moves to file an Amended Complaint to (1) add as Defendants the Oregon

Department of Corrections (ODOC) and several of its supervisory officials; (2) add several factual

allegations; and (3) “adjust slightly” his legal claims and prayer for relief. Mot. to Am. (ECF No. 9)

at 2.

Pursuant to Federal Rule of Civil Procedure 15({a)(1)(A), a plaintiffmay amend his complaint

once as a matter of course within twenty-one days after serving it, Because Defendants have yet to

be served or waive service, this Court grants Plaintiff's Motion to Amend, The Clerk of the Court

is directed to detach Plaintiff's Proposed Amended Complaint from his Motion and file it in the

Court record.

H. Order Dismissing Amended Complaint in Part

This Court must dismiss an action initiated by a prisoner seeking redress from a

governmental entity or officer or employee, if the Court determines that the action (i) is frivolous

or malicious; (11) 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. §§ 1915(e)(2\(B) and 1915A(b). In

order to state a claim, a plaintiff must allege facts which, when accepted as true, give rise to a

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plausible inference that the defendants violated the plaintiff's constitutional rights. Ashcroft v. 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), Plaintiffis proceeding pro se, 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).

In his Amended Complaint, Plaintiff adds several supervisory officials as Defendants.

However, Plaintiff fails to set forth any facts to support a reasonable inference that the Defendants

were personally involved in the violation of Plaintiff's constitutional rights. It is well settled that a

defendant is not vicariously liable under § 1983 for the conduct of his or her employees, Monell v.

New York City Dep’t of Soc. Serv., 436 U.S. 658, 691-94 (1978). Accordingly, the Amended

Complaint is dismissed as to Collette Peters, Elizabeth Craig, Kim Brockamp, Mitch Morrow, Birdie

Janet Worley, Brian Belleque, and Adrian O’Connor. Additionally, the Amended Complaint is

dismissed as to ODOC on the basis of sovereign immunity. See Puerto Rico Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (absent a clear and unequivocal waiver, the

Eleventh Amendment bars suit in federal court against either a state or an agency acting under its

control).

Mi

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Tif. Motion for Preliminary Injunction

Plaintiff moves for a preliminary injunction ordering Defendants to (1) provide him a mental

health evaluation and care by a “hired state licensed psychiatrist;” (2) commence an “audit” of the

prison’s grievance processes and to accept and investigate his grievances; (3) commence an “audit”

of the EOCI mailroom staff and order them to deliver his mail immediately; (4) commence an

“audit” of EOCI’s “mental health care infrastructure, grievance system infrastructure, mailroom

arbitrations, and segregation staff training and general rule updates and/or policy changes from May

16, 2012 to present;” and (5) stop any harassment or retaliation by correctional officials. Mot. for

Prelim. Inj. (ECF No. 16) at 1-2.

A plaintiff seeking a preliminary injunction must establish that (1) he 1s likely to succeed on

the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the

balance of equities tip in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008); Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015);

Assoc. des kleveurs de Canards et d’oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013).

“A preliminary injunction can also be issued if a plaintiff demonstrates that serious questions going

to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor, as well as

satisfaction of the other Winter factors.” Nat'l Inst. of Family and Life Advocates v. Harris, 839 F.3d

823, 834 (9th Cir. 2016) (internal quotations omitted). If the plaintiff fails to demonstrate a

likelihood of success on the merits, or serious questions going to the merits, the Court need not

address the remaining factors. Id. at 845, n.11; Garcia, 786 f'.3d at 740. Where, as here, the plaintiff

seeks a mandatory injunction which goes beyond maintaining the status quo, he must demonstrate

that the facts and law clearly favor an injunction. Garcia, 786 F.3d at 740; see also Am. Freedom

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Def. Initiative v. King Cty., 796 F.3d 1165, 1173 (9th Cir. 2015) Gmandatory injunctions are

disfavored and will not be entered in doubtful cases).

Plaintiffs primary contentions are that Defendants denied him adequate mental health care,

subjected him to excessive force in response to his suicide attempt, failed to properly process his

grievances and deliver his mail, and subjected him to harassment and retaliation. For the reasons set

forth below, Plaintiff has failed to demonstrate that he is likely to succeed on the merits of these

claims, or that there are serious questions going to the merits.

First, although Plaintiff alleges that Defendants denied him adequate mental health care, it

appears from the face of Plaintiff's lengthy Amended Complaint that he has recetved mental health

care over the course of several years, but simply disagrees with the staff's diagnoses and course of

treatment. It is well settled that a difference of opinion between a physician and a prisoner

concerning what medical care is appropriate does not amount to deliberate indifference to support

an Eighth Amendment violation. Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014), Further,

although the prolix nature of Plaintiff's Amended Complaint makes it difficult to consider the

potential merit of his remaining claims, it does not appear to the Court that Plaintiff is likely to

succeed or that there are serious questions going to the merits.

Plaintiff also has failed to demonstrate that he will suffer irreparable injury in the absence

of injunctive relief, or that the balance of hardships tip in his favor. As noted above, it appears from

the face of the Amended Complaint that Plaintiff receiving some mental health care. Further, the

Court notes that although Plaintiff alleges that Defendants responded with excessive force to his

attempted suicide, this incident occurred in 2014 and Plaintiff does not allege that he currently is in

physical danger. See Am. Compl. at 7-9. Plaintiff does not allege how he would be harmed if

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injunctive relief is not granted with respect to his claims that Defendants have refused to process his

grievances, mishandled his mail, or engaged in harassment or retaliation. Accordingly, and in light

of the fact that Plaintiff seeks sweeping injunctive relief which goes far beyond maintaining the

status quo, the Court concludes that Plaintiff has failed to make the necessary showing to warrant

injunctive relief.

CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiff's Motion to Amend (ECF No. 9). The

Clerk of the Court is directed to detach Plaintiff's Proposed Amended Complaint from his motion

and file it in the court record. The Court DISMISSES Plaintiffs Amended Complaint as to

Defendants Collette Peters, Elizabeth Craig, Kim Brockamp, Mitch Morrow, Birdie Janet Worley,

Brian Belleque, Adrian O’Connor, and the ODOC. Finally, the Court DENIES Plaintiff's Motion

for Preliminary Injunction (ECF No. 16).

IT IS SO ORDERED,

DATED this 3” day of February, 2017.

Moutal juni,

Marco A. Hernandez

United States District Judge

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