Ross v. Blewett

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JAMES ARTHUR ROSS, Case No. 2:20-cv-01338-CL

Plaintiff, ORDER

v.

TYLER BLEWETT, et al.,

Defendants.

___________________________

AIKEN, District Judge:

Plaintiff, an inmate at Two Rivers Correctional Institution (TRCI), filed suit pursuant to

42 U.S.C. § 1983 and alleged violations of his Eighth Amendment rights arising from unsafe

conditions of confinement at TRCI amidst the COVID-19 pandemic. Before the Court are

plaintiff’s Motions for Preliminary Injunction (ECF Nos. 3, 19) Motions for Counsel (ECF Nos.

4, 20), and plaintiff’s objections to the Findings and Recommendation issued by Judge Clarke on

November 17, 2020 (ECF Nos. 10, ).

Plaintiff seeks preliminary injunctive relief, including his release from prison. This Court

does not have the authority to grant his release. See 18 U.S.C. § 3626(a)(3). Regarding the

conditions of confinement and COVID-19 protocol plaintiff seeks at TRCI, I do not find that

plaintiff’s allegations meet the rigorous test for mandatory injunctive relief at this stage of the

litigation. See Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008); see also

Maney v. Brown et al., 6:20-cv-00570-SB (ECF No. 108) (order denying preliminary injunctive

relief in COVID-19 case involving Oregon Department of Corrections institutions, after review

of extensive evidence and testimony). Many of plaintiff’s allegations relate to conditions at TRCI

after the facility experienced a recent, unexpected loss of power, and it is unclear whether those

conditions will remain as TRCI recovers from the incident. Accordingly, plaintiff’s request for

injunctive relief is denied with leave to renew.

With respect to counsel, I agree that this case warrants the appointment of counsel.

However, as set forth in the pending Motion to Stay (ECF No. 23), plaintiff may become part of

a proposed class in Maney and representation would be assumed by plaintiff’s counsel in that

action. According, plaintiff’s Motions for Appointment of Counsel are denied with leave to

renew, if necessary.

Finally, Judge Clarke recommends dismissal of plaintiff’s § 1983 claims seeking

damages against several defendants in their individual capacities. Plaintiff filed timely

objections, and the matter is now before the Court pursuant to 28 U.S.C. § 636(b)(1) and Federal

Rule of Civil Procedure 72(b). The Court must “make a de novo determination of those portions

of the report or specified proposed findings or recommendations to which objection is made.” 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir.

2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Upon de novo review, I find no error. Plaintiff fails to allege specific facts to support

viable Eighth Amendment damages claims against defendants in their individual capacities. See

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

1989); see also Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010) (an Eighth

Amendment claim requires a showing of deliberate indifference to a substantial risk of harm to

an inmate’s health or safety). Plaintiff’s damages claims will be dismissed without prejudice,

allowing plaintiff the opportunity for leave to amend and to replead these claims.

CONCLUSION

Plaintiff’s Motions for Preliminary Injunction (ECF Nos. 3, 20) and Motions for

Appointment of Counsel (ECF Nos. 4, 19) are DENIED with leave to renew at a later stage of

the proceedings. The Findings and Recommendation (ECF No. 10) issued on November 17,

2020 is ADOPTED, and plaintiff’s claims for damages are DISMISSED without prejudice.

IT IS SO ORDERED.

DATED this _2_8_t_h_ day of January, 2021.

________/_s_/A__n_n_ A__ik_e_n_______

Ann Aiken

United States District Judge