# Matthews v. Ulrich

> District Court, D. Oregon · January 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10390979

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
Hf

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390979. Public record. Not legal advice.