# Odom v. Russ

> District Court, D. Oregon · March 10, 2022

URL: https://www.frixlaw.com/law-library/cases/10394463

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 10, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10394463

## How later opinions describe it (automated extraction)

- concluding that defendants waived sovereign immunity defense when they failed to raise it during litigation

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ALONZO ODOM,

Plaintiff, Case No. 6:19-cv-00832-MC

v. OPINION AND ORDER

DAN RUSS,

Defendant.
_____________________________

MCSHANE, District Judge:
Plaintiff Alonzo Odom, a person in the custody of the Oregon Department of Corrections
(“ODOC”), brings this action under 42 U.S.C. § 1983 and 28 U.S.C. § 1367. He alleges that
Defendant Dan Russ violated his rights under the Eighth and Fourteenth Amendment,
intentionally subjected him to emotional distress, and negligently denied his immediate access to
the infirmary following an injury. Defendant moves for summary judgment on all claims. Def.’s
Mot. Summ. J., ECF No. 69 (“Def.’s Mot.”). Because the Court finds a genuine issue of material
fact exists solely in the context of Plaintiff’s Fourteenth Amendment claim, Defendant’s Motion
for Summary Judgment (ECF No. 69) is DENIED in part and GRANTED in part.
BACKGROUND1
Plaintiff is an African American person in the custody of the ODOC. Pl.’s Compl. ¶ 2, 5,
ECF No. 2. On August 4, 2017, Plaintiff was injured when a cell door “slammed on [P]laintiff’s
hand, back, and leg.” Pl.’s Compl. ¶ 4. Plaintiff immediately approached Defendant, a Housing

1 The Court views the facts in the light most favorable to Plaintiff, the non-moving party. Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006).
Unit Sergeant for ODOC, about his injuries, “complained about feeling pain,” and requested a
pass to the infirmary. Id. Defendant instead responded, “[y]ou look alright to me send a kyte.” Id.
Approximately twenty-five minutes prior to Plaintiff’s request, Defendant provided a white
inmate who was “not feeling well” a pass to the infirmary. Id.
Under ODOC policy, inmates are not free to enter the infirmary for unscheduled visits

“except for cases of emergency.” Russ Decl. ¶ 6, ECF No. 70. An inmate must request
permission from a housing unit sergeant to make an unscheduled trip. Id. ¶ 9. If an inmate’s
request to visit the infirmary is denied, the inmate “may submit a medical request via [an] inmate
communication form (“kyte”) requesting sick call—i.e., an infirmary trip that will be scheduled
at the earliest opportunity.” Id. ¶ 10. ODOC does not have written protocols for granting
unscheduled trips to the infirmary, but Defendant claims the standard procedure is for a housing
unit sergeant to ask the inmate to describe or show their injury and the sergeant will assess the
urgency of the situation in light of concerns for facility security.2 Id. ¶¶ 8–9.
Three days after sustaining his injuries, Plaintiff submitted a medical request via kyte.

Pl.’s Compl. 12. Plaintiff’s kyte stated he was “experienc[ing] some soreness, however, nothing
life threatening,” and asked to be “schedule[d] for a check-up.” Id. In October of 2017, Plaintiff
submitted a kyte to medical staff stating his right hand had not improved. Id. at 13. That same
month, Plaintiff’s hand was x-rayed, showing no identifiable injury at the site of Plaintiff’s pain.
Id. at 14, 23. From January to April of 2018, Plaintiff requested and received x-rays of his arm,
back, neck, and leg. Id. at 16–20, 24–32. Of these x-rays, one identified “a small possible chip
fracture” in Plaintiff’s elbow that was later described as “barely perceptible,” but no other
injuries associated with the August 2017 incident were identified. Id. at 24, 32.

2 Defendant provides several reasons for limiting unscheduled visits to the infirmary, such as protecting inmates in
the infirmary, maintaining a safe ratio of staff to inmates, and protecting ODOC medical staff. Id. ¶ 7.
STANDARDS
The court must grant summary judgment if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is
“genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id.
When the moving party has met its burden, the non-moving party must present “specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986) (quoting Fed. R. Civ. P. 56(e)).
DISCUSSION
I. Plaintiff’s State Law Claims
Plaintiff raises state tort law claims against Defendant for intentional infliction of
emotional distress and negligence. Pl.’s Compl. 2–3. Under ORS 30.265(3) and ORS 30.271,
individually named defendants must be dismissed from state law claims and the state of Oregon

substituted in their place if the alleged damages do not exceed $4,000,000. A state is immune
from suits brought in federal court by its own citizens, as well as citizens of other states, unless
the state consents to be sued. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). Under the Oregon Tort Claims Act, the state of Oregon has consented to be sued in
Oregon state courts for torts committed by its employees, officers, or agents while acting within
the course and scope of their duties, but it has not consented to be sued for those torts in federal
court. Blair v. Toran, No. CV-99-956, 1999 WL 1270802, at *23 (D. Or. Dec. 2, 1999), aff’d, 12
Fed. App’x. 604 (9th Cir. 2001).
Plaintiff alleges damages of $250,000; therefore, the state of Oregon must be substituted
for Defendant. Following this substitution, the state of Oregon must be dismissed as a defendant
because the state has raised a valid sovereign immunity defense. Cf. Johnson v. Rancho Santiago

Cmty. Coll. Dist., 623 F.3d 1011, 1021–22 (9th Cir. 2010) (concluding that defendants waived
sovereign immunity defense when they failed to raise it during litigation). Moreover, Plaintiff
did not respond to Defendant’s summary judgment motion on these claims. Accordingly,
Plaintiff’s claims of intentional infliction of emotional distress and negligence are dismissed
without prejudice.
II. Plaintiff’s Eighth Amendment Claim
Plaintiff alleges Defendant violated his rights under the Eighth Amendment by providing
inadequate medical treatment. Pl.’s Compl. ¶ 4. To sustain an Eighth Amendment claim based on
prison medical treatment, Plaintiff must establish the existence of “a serious medical need” and

show that the “defendant’s response to the need was deliberately indifferent.” Jett v. Penner, 439
F.3d 1091, 1096 (9th Cir. 2006) (citation omitted); see also Estelle v. Gamble, 429 U.S. 97, 104
(1976). A prisoner has a serious medical need if “failure to treat [the] prisoner’s condition could
result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Jett, 439
F.3d at 1096 (citation omitted). Deliberate indifference requires both an objective risk of harm
and a subjective awareness of that harm. Hutchinson v. United States, 838 F.2d 390, 394 (9th
Cir. 1988); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Here, Plaintiff has failed to establish the existence of a “serious medical need” or that
Defendant acted with deliberate indifference. Plaintiff “complained about feeling pain”
immediately after the cell door closed on him, and acknowledged having “some soreness” three
days later. Pl.’s Compl. ¶ 4, 12. However, neither of these statements support a conclusion that
failure to immediately treat Plaintiff’s injuries could have resulted in further significant injury or
the unnecessary infliction of pain. Plaintiff’s own three-day delay in filing a kyte requesting a
medical appointment further illustrates this point. Additionally, Plaintiff provided records of his

medical visits that show no further injury stemming from the August 2017 incident. Id. at 23–32.
Plaintiff has also failed to establish that Defendant acted with the knowledge or intent
necessary for deliberate indifference. Plaintiff’s statement that he was “feeling pain” would not
provide sufficient notice to Defendant that there was an objective risk of harm. Defendant also
offers uncontested testimony that immediately following the accident, Plaintiff showed
Defendant he could move his hand with a full range of motion and only asked about seeing a
nurse “just to be sure.” Russ Decl. ¶¶ 12–13. As Plaintiff fails to rebut this evidence, no jury
could conclude Defendant had a subjective intent to needlessly cause Plaintiff additional pain. At
best, a jury could conclude Defendant negligently caused Plaintiff some additional pain.

However, a negligent failure to provide appropriate medical care does not rise to the level
required for deliberate indifference. Jett, 439 F.3d at 1096 (citations omitted).
No genuine issue of material fact exists for Plaintiff’s Eighth Amendment claim;
therefore, summary judgment is granted.
III. Plaintiff’s Fourteenth Amendment Claim
Plaintiff alleges Defendant violated his rights under the Equal Protection Clause of the
Fourteenth Amendment by denying Plaintiff access to the infirmary because of his race. Pl.’s
Compl. ¶ 4, 5. To state a § 1983 claim for violation of the Equal Protection Clause, "a plaintiff
must show that the defendant[] acted with an intent or purpose to discriminate against the
plaintiff based upon membership in a protected class." Lee v. City of Los Angeles, 250 F.3d 668,
686 (9th Cir. 2001) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)).
“‘Discriminatory purpose’ . . . implies that the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects
upon an identifiable group.” Navarro v. Block, 72 F.3d 712, 716 n.5 (9th Cir. 1996) (quoting

Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Discriminatory purpose may be
proven by direct or indirect evidence. Lowe v. City of Monrovia, 775 F.2d 998, 1011 (9th Cir.
1985); see also Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).
Here, Plaintiff is a member of a protected class due to his race and has “produce[d]
evidence sufficient to permit a reasonable trier of fact to find by a preponderance of the evidence
that [Defendant’s actions were] racially motivated." Serrano v. Francis, 345 F.3d 1071, 1082
(9th Cir. 2003) (citation omitted). Plaintiff alleges that Defendant provided a white inmate a pass
to the infirmary for “not feeling well” approximately twenty-five minutes prior to Plaintiff’s
request. Pl.’s Compl. ¶ 4. Defendant does not contest these allegations; instead, Defendant

contends that his refusal to allow Plaintiff access to the infirmary was based on ODOC policy
and a lack of apparent necessity. Def.’s Mot. 8 (citing Russ Decl. ¶ 7). Specifically, Defendant
states he did not allow Plaintiff an unscheduled trip to the infirmary because Plaintiff “did not
have the type of urgent medical needs required for such a trip.” Russ Decl. ¶ 14. Plaintiff
responds that, even if his own injuries were not visible to Defendant, neither were the injuries of
the white inmate, so a lack of visible injuries alone cannot explain Defendant’s disparate
treatment of the two inmates. Pl.’s Decl. Opp’n Def.’s Mot. Summ. J. ¶ 2, ECF No. 88-1.
Defendant’s contentions, while relevant to the issue of Defendant’s intent, are insufficient to
conclude that no genuine issue of material fact exists for this issue. Viewing the evidence in the
light most favorable to Plaintiff, Defendant sent a white inmate who “said that he was not feeling
well” to the infirmary while denying a black inmate who “complained about feeling pain” access
to the infirmary. Pl.’s Compl. ¶ 4.
As noted, Defendant has provided several seemingly legitimate, non-discriminatory
reasons for limiting the number of unscheduled infirmary visits, including protection of ODOC

inmates and medical staff. Russ Decl. ¶ 7. However, Defendant has failed to provide pertinent
information such as the ratio of inmates to staff in the infirmary and how this differed when the
white inmate was allowed access almost immediately before Plaintiff was denied access. While
general safety concerns could conceivably justify Defendant’s different treatment of similarly
situated inmates, a genuine issue of material fact exists as to whether specific facts known to
Defendant at the time justified his actions based on legitimate safety concerns.3
Because Defendant has failed to prove that no genuine issue of material fact exists,
summary judgment is denied for Plaintiff’s Fourteenth Amendment claim.
IV. Qualified Immunity

Qualified immunity can shield a defendant from liability for an alleged constitutional
violation. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether qualified
immunity is applicable, the court must consider: (1) whether the alleged facts, taken in the light
most favorable to the plaintiff, show defendant’s conduct violated a constitutional right; and (2)
whether that constitutional right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201

3 The Court must point out that Defendant provided literally no evidence on this matter. There is no evidence
indicating the size of the infirmary. There is no evidence indicating how many prison staff were in the infirmary at
the time in question. There is no evidence indicating how many inmates were in the infirmary at the time in
question. Without any such evidence, the Court is unable to make a finding that Defendant in fact had legitimate
safety concerns justifying different treatment of inmates, on this limited record, based solely on race. Again, viewed
in the light most favorable to Plaintiff, Defendant allowed a white inmate who was not feeling well to visit the
infirmary and denied a black inmate who was not feeling well access to the infirmary. On this record, neither inmate
had “the type of urgent medical needs required for such a trip.” Russ Decl. ¶ 14. In other words, a jury could
conclude that Defendant treated Plaintiff differently solely because of the color of his skin.
(2001). The Supreme Court has impressed upon courts not to be overly generalized or
excessively specific in defining what it means for a right to be “clearly established.” See District
of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).
The Court need not address qualified immunity for claims dismissed on other grounds in
this opinion. As addressed above, the record could support a finding that Defendant’s conduct

violated Plaintiff’s Fourteenth Amendment right to equal protection of law; thus, the pertinent
question is whether that right was clearly established. To be clearly established, the unlawfulness
of the alleged conduct must be apparent under preexisting law such that a defendant had “fair
warning” that the conduct was unconstitutional. Clement v. Gomez, 298 F.3d 898, 906 (9th Cir.
2002); see also Hope v. Pelzer, 536 U.S. 730 (2002). “The fundamental principle that prisoners
are protected from race discrimination is longstanding” and the Court is satisfied that any
reasonable officer in Defendant’s position would have fair warning that invidious discrimination
of inmates based on race violates the Constitution. Harrington v. Scribner, 785 F.3d 1299, 1305
(9th Cir. 2015). The Court concludes that qualified immunity is not applicable to Defendant for

Plaintiff’s Fourteenth Amendment claim.
CONCLUSION
Defendant’s Motion for Summary Judgment (ECF No. 69) is DENIED in part and
GRANTED in part.
IT IS SO ORDERED.
DATED this 10th day of March 2022.

_______/s/ Michael J. McShane ________
Michael J. McShane
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394463. Public record. Not legal advice.