# Brown v. Lane County

> District Court, D. Oregon · January 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10394243

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

ANTHONY BROWN, Case No. 6:21-cv-01866-AA
OPINION AND ORDER
Plaintiff,

vs.

LANE COUNTY; DR. ALFREDO
VELEZ; NATHAN GENT; WELLPATH,
LLC; JOHN/JANE DOES 1-5,

Defendants.

AIKEN, District Judge:
Plaintiff Anthony Brown seeks leave to proceed in forma pauperis (“IFP”) in
this civil rights action against Lane County; WellPath, LLC (“WellPath”); Dr. Alfredo
Velez (“Dr. Velez”); Nathan Gent (“Gent”), and five unnamed medical and correctional
staff. Doc. 2. For the reasons set forth below, plaintiff’s Complaint, Doc. 1, is
DISMISSED with leave to amend. The Court shall defer ruling on plaintiff’s IFP
petition pending submission of an amended complaint.
LEGAL STANDARD
Generally, all parties instituting any civil action in United States District

Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP
statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for
meaningful access to federal courts despite their inability to pay the costs and fees
associated with that access. To authorize a litigant to proceed IFP, a court must make
two determinations. First, a court must determine whether the litigant is unable to
pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess

whether the action is frivolous, malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune to such relief.
28 U.S.C. § 1915(e)(2)(B).
With respect to the second determination, district courts have the power under
28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint on
the defendants and must dismiss a complaint if it fails to state a claim. Courts apply
the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal pleading
standards, the complaint must include a short and plain statement of the claim and
“contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (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. The plausibility standard . . .
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The

court is not required to accept legal conclusions, unsupported by alleged facts, as true.
Id.
BACKGROUND
The following facts are taken from the Complaint and presented in the light
most favorable to plaintiff.
Defendant Dr. Velez is a staff psychiatrist at the Lane County jail. Defendant

Gent is a corrections officer at the same facility. Defendant WellPath is the health
care provider contracted to serve the Lane County jail.
In December 2019, plaintiff was incarcerated at Lane County Adult
Correctional Facility where he received mental health treatment from Dr. Velez.
Plaintiff asserts that Dr. Velez prescribed seizure and psychotropic medications “for
no apparent reason” and that those medications were “intended for a different
patient.” Compl. at 3. Plaintiff states that, after taking the medications, he suffered

from “Serotonin Syndrome.” Id. He then sets forth a list of the medication’s side
effects, which include dizziness, odd behavior, muscular rigidity, and non-
responsiveness. Id.
Additionally, plaintiff alleges that in the days that followed, he remained in a
state of “semi-blackout” during which he fell and hit his head three times. He also
asserts that, because he was medically addled and physically non-compliant, Gent
mistook plaintiff’s “medically-induced rigidity” with defiance and “dealt violently”
with plaintiff by slamming him to the ground and dislocating his right shoulder. Id.
Plaintiff alleges that he requested transport for hospitalization but his request was

denied.
Plaintiff maintains that “as a proximate result” of the “medical prescription
poisoning” and “violent treatment,” he suffered physical injury and emotional
anguish.
DISCUSSION
Plaintiff alleges violations of his constitutional right to be free from cruel and

unusual punishment under 42 U.S.C § 1983 against all defendants. Plaintiff also
brings five state law tort claims, for which he asserts that he sent “timely Notice of
Tort Claim to Lane County.”
I. 42 U.S.C. § 1983
Plaintiff alleges, under 42 U.S.C § 1983, that defendants Lane County,
WellPath, Dr. Velez, and the jail medical staff violated his rights under the Eighth
Amendment by subjecting him to prescription poisoning. Further, that Gent

subjected him to “violent and tortious treatment” constituting cruel and unusual
punishment. Compl. at 4.
To state a claim under § 1983, a plaintiff must allege that (1) their federal
rights were violated and (2) the violation was caused by the conduct of a person acting
under color of state law. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
A. Lane County and WellPath
As to defendants Lane County and WellPath, the facts alleged in plaintiff’s
Complaint fail the second prong required to state a claim under § 1983—that is,

plaintiff does not set forth facts showing how Lane County or WellPath caused a
violation of plaintiff’s federal rights. Anderson, 451 F.3d at 1067.
Lane County is a local government entity, and WellPath is an entity
presumably providing services for Lane County. To hold Lane County or WellPath
liable under § 1983, plaintiff must show: (1) that he was deprived of his constitutional
right; (2) that Lane County or WellPath had a policy; (3) that the policy “amounts to

deliberate indifference” to his constitutional right; and (4) that the policy is the
“moving force behind the constitutional violation.” City of Canton v. Harris, 489 U.S.
378, 389-91 (1989).
Moreover, a government entity “cannot be held liable under § 1983 on a
respondeat superior theory,” that is, “solely because it employs a tortfeasor.” Monell
v. Dep't of Soc. Servs. of New York City, 436 U.S. 658, 690-91 (1978) (emphasis in
original). There must be a “direct causal link” between the entity’s policy or custom

and the injury, and the plaintiff must be able to demonstrate that the injury resulted
from a “permanent and well settled practice.” Anderson, 451 F.3d at 1067.
Here, plaintiff does not specify any conduct, custom, or policy on the part of
Lane County or WellPath that amounted to a deliberate indifference to his rights.
Further, he does not allege facts sufficient to show a causal connection between Lane
County or WellPath and the harms identified in the Complaint. Plaintiff alleges Dr.
Velez prescribed medications that caused his injury, but his allegation fails to connect
Dr. Velez’s individual actions to a well-settled custom or policy attributable to either
the County or WellPath. Even accepting that Dr. Velez is a Lane County employee,

and that he prescribed to plaintiff medications intended for another patient, those
actions do not, on their own, subject Lane County or WellPath to liability under §
1983 because plaintiff has not shown that Dr. Velez was implementing official policies
of either entity or that such policies were the moving force behind a violation of his
constitutional rights. Accordingly, the Complaint does not state a claim against Lane
County or WellPath under § 1983.

B. Unnamed Medical Staff
Plaintiff’s Complaint fails to set forth any facts involving actions taken by jail
medical staff other than Dr. Velez. Individual defendants must be “integral
participants” in the alleged violation of the plaintiff’s federal rights to be liable under
§ 1983. Blankenhorn v. City of Orange, 485 F.3d 463, 482 n. 12 (9th Cir. 2007).
“[I]ntegral participation does not require that each [defendant’s] actions themselves
rise to the level of a constitutional violation. But it does require some fundamental

involvement in the conduct that allegedly caused the violation.” Id.
Plaintiff does not set forth any allegations that medical staff other than Dr.
Velez participated or were involved in the alleged violation of his rights. Accordingly,
plaintiff has failed to state a claim for relief under § 1983 against medical staff
defendants.
C. Dr. Velez
Plaintiff alleges that, when Dr. Velez prescribed him the seizure and
psychotropic medications, he suffered subsequent injuries which amount to cruel and

unusual punishment in violation of his Eighth Amendment rights. Plaintiff
characterizes this claim as one of “medical neglect” and “prescription poisoning.”
“[D]eliberate indifference” to serious medical needs of prisoners constitutes
“unnecessary and wanton infliction of pain,” which is proscribed by the Eighth
Amendment’s prohibition on cruel and unusual punishment. Estelle v. Gamble, 429
U.S. 97, 104 (1976). However, not every claim by a prisoner that he or she has received

inadequate medical treatment rises to the level of an Eighth Amendment violation.
An accident, although it may produce added anguish, is not on that basis alone, a
wanton infliction of unnecessary pain. Id. at 105. In the medical context, an
inadvertent failure to provide adequate medical care cannot be said to constitute “an
unnecessary and wanton infliction of pain.” Id. at 105-6. In addition, medical
malpractice does not become a constitutional violation merely because the victim is a
prisoner. Id. In order to state a cognizable claim, a prisoner must allege acts or

omissions amounting to deliberate indifference to the prisoner’s serious medical
needs. Id. at 106.
In the instant case, plaintiff does not allege that Dr. Velez “deliberately”
poisoned him with the prescribed medications—only that plaintiff “believe[d]” that
the medications were “intended for another patient” and that there was no reason
“apparent” to plaintiff for the medications. Compl. at 3. Plaintiff’ alleges something
more akin to inadvertence or accident than deliberate or intentional conduct.
Accordingly, the Complaint does not state a cognizable claim under § 1983 against
Dr. Velez.

D. Gent
Finally, plaintiff contends that Gent subjected him to “violent and tortious
treatment” when plaintiff was “non-responsive,” constituting cruel and unusual
punishment. Compl. at 5.
An Eighth Amendment claim of excessive force ultimately turns on whether
force was applied in a good faith effort to maintain or restore discipline or maliciously

and sadistically for the very purpose of causing harm. Rodriguez v. Cty. of Los
Angeles, 891 F.3d 776, 795 (9th Cir. 2018). When determining whether the force is
excessive, the court may consider factors such as the extent of injury; the need for
force; the relationship between that need and the amount of force used; the threat
reasonably perceived by the responsible official; and any efforts made to temper the
severity of a forceful response. Hudson v. McMillian, 503 U.S. 1, 7 (1992).
In this case, plaintiff asserts that Gent was “in the process of subduing”

plaintiff, and “mistook” plaintiff’s physical noncompliance with defiance, resulting in
Gent “slam[ing]” plaintiff into the ground, griding his knee in plaintiff’s neck and
back, and dislocating plaintiff’s shoulder. Compl. at 3. It appears from plaintiff’s
allegations that Gent’s efforts to “subdue[e]” plaintiff were aimed at gaining his
physical compliance, an act which Gent could have “reasonably perceived” necessary
to “maintain or restore discipline.” Plaintiff characterizes the force used as the result
of a mistake, rather than as an act of malice for the very purpose of causing harm.
Based on the facts alleged, the force Gent deployed had a good faith purpose—
subduing physical noncompliance—and was not an act based in malice, which is a

necessary element to show a violation of plaintiff’s rights under the Eighth
Amendment. Therefore, plaintiff fails to state a claim for relief under § 1983 against
Gent. If plaintiff decides to amend his Complaint, he should specify the facts
necessary to show whether the force was needed to maintain discipline or whether
the force was deployed in excess and with malice.
II. State Law Claims

Plaintiff next brings five claims for relief under state law: battery, negligence,
medical negligence, intentional infliction of emotional distress, and negligent
infliction of emotional distress. Compl. at 6-7. Plaintiff asserts that defendants were
acting within the course and scope of their employment at all material times. Plaintiff
does not allege whether he has complied with the requirements of the Oregon Tort
Claims Act (“OTCA”), ORS 30.260-300. If plaintiff decides to amend his Complaint,
he should make a showing that he has brought his tort claims according to the

provisions of the OTCA.
In consideration of factors set forth in 28 U.S.C. § 1915(e)(2)(B), plaintiff must
address the following deficiencies identified with respect to his state law tort claims.
A. Medical Negligence
Plaintiff alleges that Lane County, Dr. Velez, and jail medical staff “committed
medical negligence in its prescription poisoning of plaintiff.” Compl. at 6. However,
plaintiff fails to allege any facts specifying how Lane County or medical staff other
than Dr. Velez were medically negligent or involved in prescribing medications to
plaintiff at all. Accordingly, plaintiff’s claim for medical negligence as to Lane County

and medical staff is dismissed with leave to amend. If plaintiff decides to amend the
Complaint, he should set forth facts demonstrating how each element of the claim of
medical negligence is satisfied against each defendant.
B. Intentional Infliction of Emotional Distress
Plaintiff fails to state a claim for intentional infliction of emotional distress. A
claim for intentional infliction of emotional distress has three elements. The plaintiff

must show: (1) that the defendants intended to cause the plaintiff severe emotional
distress or knew with substantial certainty that their conduct would cause such
distress; (2) that the defendants engaged in outrageous conduct—conduct
extraordinarily beyond the bounds of socially tolerable behavior; and (3) that the
defendants' conduct in fact caused plaintiff severe emotional distress. McLean v. Pine
Eagle Sch. Dist., No. 61, 194 F. Supp. 3d 1102, 1121 (D. Or. 2016) (citing House v.
Hicks, 218 Or.App. 348, 357–58, 179 P.3d 730 (2008)).

In this case, plaintiff alleged that Lane County, Gent, Dr. Velez, and medical
staff “committed medical negligence.” Plaintiff fails to allege the first element in a
claim for intentional infliction of emotional distress: intentional conduct. Because
plaintiff alleges negligent—rather than intentional—conduct, his fourth claim for
relief is dismissed with leave to amend.
C. Negligent Infliction of Emotional Distress
In plaintiff’s fifth tort claim, he alleges that Lane County, Gent, Dr. Velez, and
medical staff “committed medical negligence in its prescription poisoning of plaintiff
and the ensuing . . . physical injuries.” Compl. at 7. Under circumstances like those

here, Oregon law allows the plaintiff to recover damages for emotional distress when
a defendant negligently causes foreseeable, serious emotional distress that infringes
on some other legally protected interest. Philibert v. Kluser, 360 Or. 698, 702, 385
P.3d 1038, 1041 (2016). Freedom from physical harm is one such protected interest.
Id. at 702.
Here, plaintiff’s Complaint fails to allege any facts concerning how Lane

County, Gent, or medical staff other than Dr. Velez negligently caused foreseeable,
serious emotional distress. Plaintiff alleges that it was Dr. Velez who prescribed
medications to plaintiff and that plaintiff’s physical injuries directly resulted from
the side effects. Accordingly, plaintiff’s fifth claim for relief is dismissed as to Lane
County, Gent, and unnamed medical staff defendants. If plaintiff decides to amend
his Complaint, he should set forth facts demonstrating how each element of the claim
for intentional infliction of emotional distress is satisfied against each defendant.

II. Other Issues
At no point in plaintiff’s complaint does he allege facts demonstrating liability
for WellPath or Does 1 - 5 (who plaintiff also names “medical staff”). If plaintiff so
decides, he should amend his Complaint to include a short and plain statement of his
claims setting forth facts specifying how WellPath and Does 1 - 5 have harmed him,
and why those defendants should be held liable for his injuries.
CONCLUSION
For the reasons stated above, plaintiff’s Complaint (doc. 1) is DISMISSED.
Because the deficiencies identified above might be remedied by the allegation of

additional facts, dismissal shall be with leave to amend. Plaintiff shall have thirty
(30) days from the date of this Order in which to file an amended complaint. Failure
to do so within the allotted time will result in a judgment of dismissal without further
notice.
IT IS SO ORDERED.
Dated this _2_1_s_t_ day of __J_a_n_u__a_r_y____ 2022.

________/_s/_A__n_n_ _A_i_k_e_n_______
Ann Aiken
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394243. Public record. Not legal advice.