Toliver v. Cain

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DERRICK T. TOLIVER,

Case No. 2:21-cv-01232-JR

Plaintiff,

ORDER

v.

BRAD CAIN, Superintendent,

et al.,

Defendants.

RUSSO, Magistrate Judge.

Plaintiff, an adult in custody at the Snake River Correctional Institution (“SRCI”), brings

this civil rights action pursuant to 42 U.S.C. § 1983. For the reasons that follow, plaintiff must

file an Amended Complaint for this action to proceed.

BACKGROUND

Plaintiff names as defendants in the caption of his Complaint Brad Cain (former SRCI

Superintendent) et al.” At page two of the Complaint, however, he identifies the defendants as

Brad Cain, Colette Peters, Jamie Miller, and SRCI's Medical Department.”

Plaintiff alleges defendants violated his right to be free from cruel and unusual punishment

under the Eighth Amendment and his due process and equal protection rights under the Fourteenth

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Amendment. He alleges defendants have known of and chosen to be deliberately indifferent to

his serious medical condition, which he identifies as asthma. Plaintiff alleges the injuries he

suffered as a result “are both physical and mental,” but does not allege facts establishing what

injury he has suffered. Plaintiff also alleges that since the beginning of 2020 all inmates were

required to eat meals inside their cells, and that he is forced to be exposed to seafood, which may

lead to an asthma attack. By way of remedy, plaintiff asks the Court to “force ODOC to fully

recognize my serious and rare medical condition and to have all serious notes about it” added to

his records, to prevent his exposure to seafood, and requests money damages. Plaintiff also

moves for appointment of counsel.

STANDARDS

The 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; (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. See 28 U.S.C. §§ 1915(e)(2) & 1915A(b).

Dismissal of a pro se complaint for failure to state a claim “is proper only if it is clear that the

plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief.”

Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). The Court must construe pro se

pleadings liberally and afford the plaintiff “the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d

338, 342 (9th Cir. 2010) (citation omitted). “Unless it is absolutely clear that no amendment can

cure” defects in the complaint, “a pro se litigant is entitled to notice of the complaint s deficiencies

and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep t of Corr., 66 F.3d

245, 248 (9th Cir. 1995) (per curiam).

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DISCUSSION

I. Procedural Deficiency

Pursuant to Rule 10(a) of the Federal Rules of Civil Procedure, “[t]he title of the complaint

must name all the parties; the title of other pleadings, after naming the first party on each side, may

refer generally to other parties.” As noted, the defendant identified in the caption of plaintiff s

Complaint differs from those identified at page two. Should plaintiff file an Amended Complaint

curing the substantive deficiencies noted below, the Court advises plaintiff to clearly identify all

intended defendants in the caption thereof.

II. Substantive Deficiencies

“Section 1983 creates a private right of action against individuals who, acting under color

of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d

1070, 1074 (9th Cir. 2001). Therefore, “[t]o state a claim under [Section 1983], the plaintiff must

allege two elements: (1) that a right secured by the Constitution or laws of the United States was

violated; and (2) that the alleged violation was committed by a person acting under color of state

law.” Campbell v. Washington Dept of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011) (citing

Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987)).

“Liability under section 1983 arises only upon a showing of personal participation by the

defendant” in the alleged constitutional deprivation. Taylor v. List, 880 F.2d 1040, 1045 (9th

Cir. 1989); Arnold v. Intl. Business Machines, Corp., 637 F.2d 1350, 1355 (9th Cir. 1981).

Liability may also be imposed if the defendant sets into “’motion a series of acts by others which

the actor knows or reasonably should know would cause others to inflict the constitutional injury.’”

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Gini v. Las Vegas Metropolitan Police Dept., 40 F.3d 1041, 1044 (9th Cir. 1994) (quoting Merritt

v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987).

“’A supervisor may be liable if there exists either (1) his or her personal involvement in

the constitutional deprivation, or (2) a sufficient causal connection between the supervisor s

wrongful conduct and the constitutional violation.’” Redman v. County of San Diego, 942 F.2d

1435, 1446 (9th Cir. 1991), cert. denied, 112 S.Ct. 972 (1992) (quoting Thompkins v. Belt, 828

F.2d 298, 303-04 (5th Cir. 1987)); Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991);

Taylor, 880 F.2d at 1045. However, it is well established that 1983 does not impose liability

upon state officials for the acts of their subordinates under a respondeat superior theory of liability.

Monell v. New York City Dep't. of Social Services, 436 U.S. 658, 691-94 (1978); Rise v. State of

Oregon, 59 F.3d 1556, 1563 (9th Cir. 1995), cert. denied 116 S.Ct. 1554 (1996); Taylor, 880 F.2d

at 1045.

Plaintiff does not allege personal involvement by defendants Cain, Peters, and Miller in

the alleged denial of his rights. At most, he alleges they are responsible for the actions of the

“SRCI Medical Department,” which is insufficient to state a claim under § 1983. Moreover, the

“SRCI Medical Department” is not an entity subject to suit under § 1983. In any event, to the

extent it is construed as a sub-division of the Oregon Department of Corrections, agencies of the

state are protected from suit under sovereign immunity. See Puerto Rico Aqueduct & Sewer

Auth. v. Metcalf & Eddy, Inc., 113 S.Ct. 684, 687 (1993) (it is well established that absent waiver,

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

its control).

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Also, to state a claim under the Eighth Amendment, a plaintiff must plead facts to plausibly

suggest that the defendants: (1) exposed him to a substantial risk of serious harm; and (2) did so

with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 837, 842 (1994).

Specifically, in a medical care case, a plaintiff must first allege that he suffered from or faced an

objectively “serious medical need.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “A

medical need is serious when the failure to treat it could result in significant injury or the

unnecessary and wanton infliction of pain.” Id. In addition, a plaintiff must allege facts

sufficient to demonstrate that the defendants acted with “deliberate indifference” to his serious

medical needs. Erickson v. Pardus, 551 U.S. 89, 90 (2007). “Deliberate indifference is a high

standard.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016). Inadvertent failures to

provide adequate medical care, mere negligence or medical malpractice, delays in providing care

(without more), and differences of opinion over what medical treatment or course of care is proper,

are all insufficient to constitute an Eighth Amendment violation. Estelle v. Gamble, 429 U.S. 97,

105-07 (1976); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nev. Bd. of State

Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).

Here, plaintiff does not establish facts sufficient to establish the deliberate indifference to

his serious medical needs. Accordingly, plaintiff must file an Amended Complaint.

III. Motion for Appointment of Counsel

Plaintiff moves for a court-appointed attorney. Generally, there is no constitutional right

to counsel in a civil case. United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986).

However, under 28 U.S.C. § 1915(e), this Court has discretion to request volunteer counsel for

indigent parties in exceptional circumstances. Wood v. Housewright, 900 F.2d 1332, 1335 (9th

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Cir. 1990); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). While this Court may

request volunteer counsel in exceptional cases, it has no power to make a mandatory appointment.

Mallard v. United States Dist. Ct. of Iowa, 490 U.S. 296, 301-08 (1989).

In order to determine whether exceptional circumstances exist, this Court evaluates the

partys likelihood of success on the merits and the ability of the party to articulate his or her claim

pro se in light of the complexity of the legal issues involved. Wood, 900 F.2d at 1335-36.

However, “[n]either of these factors is dispositive and both must be viewed together before

reaching a decision on request of counsel under [former] section 1915(d).” Wilborn, 789 F.2d at

1331.

At this juncture, plaintiff has not established exception circumstances warranting the

appointment of pro bono counsel. Accordingly, the Court denies plaintiff s motion for

appointment of counsel.

CONCLUSION

Based on the foregoing, IT IS ORDERED that plaintiff must file an Amended Complaint,

curing the deficiencies noted as to his claims against defendants Brad Cain, Colette Peters, Jamie

Miller and SRCI’s Medical Department, within 30 days of the date of this Order. Plaintiff is

advised that failure to file an Amended Complaint, or failure to cure the deficiencies noted above,

shall result in the dismissal of this action.

/ / /

/ / /

/ / /

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IT IS FURTHER ORDERED that plaintiffs Motion for Appointment of Counsel (ECF No.

3) is DENIED.

IT IS SO ORDERED.

DATED this 24th day of February 2022.

/s/ Jolie A. Russo

Jolie A. Russo

United States Magistrate Judge

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