# Abney v. Gates

> District Court, D. Oregon · October 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10395244

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 3, 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/10395244

## How later opinions describe it (automated extraction)

- affirming the district court’s grant of summary judgment to the defendants on the plaintiff’s retaliation claim because “[t]here is . . . insufficient evidence to create a material of fact as to a retaliatory motive”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

COURTNEY TAMONE LAMAR ABNEY, Case No. 6:21-cv-01571-HZ

Plaintiff, OPINION AND ORDER

v.

KRISTINE GATES, JAMIE SILVA,
AND ODOC/OSCI,

Defendants.

_____________________________________
HERNÁNDEZ, District Judge:
Pro se plaintiff Courtney Tamone Lamar Abney brings this civil rights action against
defendants under 42 U.S.C. § 1983 alleging violations of his constitutional rights. Compl.,
ECF 2. Before the court is defendants’ motion for summary judgment. Mot., ECF 48. For the
reasons stated below, the court GRANTS defendants’ motion.

Page 1 – OPINION AND ORDER
BACKGROUND
Plaintiff is an adult in the custody of the Oregon Department of Corrections (ODOC) and
is currently housed at the Snake River Correctional Institution. Plaintiff was previously housed at
Oregon State Correctional Institution (OSCI) and brings this action based on events that

allegedly occurred while he was housed there. Defendant Silva was previously employed by
ODOC as a Qualified Mental Health Professional (QMHP) and worked at OSCI from December
2020 to August 2021. Defendant Gates is the Behavioral Health Services (BHS) manager at
OSCI and supervises the QMHPs on staff at OSCI.
Plaintiff and defendants filed sworn declarations and ODOC records related to plaintiff’s
claims. The following facts are based on those documents: On May 2, 2021, plaintiff completed
a kyte that stated, “I am gender non conformant and would like to try the hormones give[n] to
transexual male[s]”. Mot. Def. J. 16, ECF 18. In response to the kyte, defendant Silva met with
plaintiff on May 18, 2021. Silva Decl. Ex. 1, ECF 50. Defendant Silva’s BHS Progress Notes
from his meeting with plaintiff state, “[c]lient would like a psychological evaluation to get on

hormone medications.” Id. On June 25, 2021, defendant Silva met with plaintiff to conduct a
gender dysphoria evaluation; following the evaluation, defendant Silva prepared a Gender
Dysphoria Evaluation report, which he finalized and signed on August 3, 2021. Id. at Ex. 3.
During the evaluation, plaintiff “stated he has both male and female sex organs and is ‘not
uncomfortable’ with is body.” Id. Plaintiff told defendant Silva “he is OK with his body and
when he looks in the mirror, he feels ‘alright’”. Id. Plaintiff also reported, “sometimes I feel
uncomfortable”, and defendant Silva noted in his report, “this does not rise to the level of
clinically significant distress.” Id. Defendant Silva found “[n]o clinically significant
incongruence” between plaintiff’s “experienced/expressed gender and assigned gender” and

Page 2 – OPINION AND ORDER
concluded, “[t]he subjective report of [plaintiff] DOES NOT meet the criteria for gender
dysphoria[.]” Id. (emphasis in original).
On June 28, 2021, plaintiff was seen in the mental health clinic by defendant Silva for
reasons apparently unrelated to his gender dysphoria evaluation. Id. at Ex. 4. Defendant Silva

noted in a BHS screening form that plaintiff was “upset/angry” and was “demanding to be
moved to MHU ‘today!’”. Id. Defendant Silva conducted a mental health evaluation of plaintiff
and recommended changing his mental health diagnosis code from MH3 to MH1 “[d]ue to
current assessment, initial mental health assessments, and the last 8 months of documentation”.
Id. at Ex. 5. Defendant Gates “conducted a chart review and diagnoses” and approved the
change. Id.; id. at Ex. 4.
Plaintiff objected to the change in his mental health status level through a series of kytes
and grievances he filed between August and December 2021. See Mot. Def. J. 4-24, ECF 18;
Notice 2-12, ECF 17. In multiple kytes and grievances, plaintiff requested his “MH3 status back”
and expressed his belief that MH3 status entitled AICs to immediate release from the

Disciplinary Segregation Unit (DSU), or release after a maximum of 30 days in DSU. See id. In a
grievance dated September 2, 2021, plaintiff described his change to MH3 status as a “form of
retaliation”. Notice 3, ECF 17. Defendant Gates’ response acknowledged plaintiff’s mental
health diagnosis had been “updated” on June 28, 2021, and explained that DSU sanctions “are no
longer solely based on an AIC’s Mental Health code”, id.; rather, they are “decided by hearings,
with recommendations regarding an . . . AIC’s active mental health symptoms and level of
functioning.” Id. at 2. In his grievance appeal, plaintiff restated his request for reinstatement of
MH3 status and to be “admediately [sic] released from DSU.” Id. at 5.

Page 3 – OPINION AND ORDER
Based on these events, plaintiff brings this lawsuit under 42 U.S.C § 1983 and asserts two
claims: (1) Defendants were deliberately indifferent to his serious medical needs, and (2)
defendants terminated his MH3 status in retaliation for the kytes and grievances he submitted.
Compl. 4-5, ECF 2. The Complaint does not specify whether plaintiff is suing defendant Silva

and defendant Gates in their personal capacities, official capacities, or both.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former FED. R. CIV. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine

issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28 (9th
Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,
1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the

Page 4 – OPINION AND ORDER
existence of a material issue of fact implausible, that party must come forward with more
persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment is improper
where divergent ultimate inferences may reasonably be drawn from the undisputed facts.”

Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (internal
quotation marks omitted).
DISCUSSION
Defendants argue they are entitled to summary judgment on three grounds: (1) the
Eleventh Amendment bars suits against defendants ODOC and OSCI as state agencies and bars
claims against defendants Silva and Gates in their official capacities; (2) the evidence does not
show plaintiff suffered a serious medical need that defendants disregarded; and (3) there is no
evidence defendants changed plaintiff’s mental health status level to retaliate against him for
filing kytes and grievances.1
A. Eleventh Amendment Immunity

The Eleventh Amendment generally bars a citizen from suing a state in federal court.
See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 360 (2001); College
Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70 (1999).
Supreme Court precedent establishes that a state is immune from suit in federal court unless
Congress has abrogated the state’s immunity by appropriate federal legislation or the state itself

1 The court acknowledges the alternative grounds on which defendants seek summary judgment,
but finds it unnecessary to reach these arguments: (1) state agencies and state officials acting in
their official capacity are not ‘persons’ within the meaning of Section 1983; (2) there is no
respondeat superior liability under Section 1983; and (3) qualified immunity protects defendants
from liability for monetary damages. See Mot. 6, 12, ECF 48.

Page 5 – OPINION AND ORDER
has waived it. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011). State
sovereign immunity proscribes federal suits against state agencies and departments, which are
arms of the state. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003) (“It
is well established that agencies of the state are immune under the Eleventh Amendment from

private damages or suits . . . in federal court.”). “State prisons are considered state agencies for
purposes of the Eleventh Amendment.” Gosney v. Oregon Dep’t of Corr., No. 6:21-CV-1511-SI,
2022 WL 959228, at *2 (D. Or. Mar. 30, 2022) (citing Allison v. California Adult Auth., 419
F.2d 822, 823 (9th Cir. 1969)). Individual defendants who are sued in their official capacities are
also protected by Eleventh Amendment immunity. Brown v. Oregon Dep’t of Corr., 751 F.3d
983, 989 (9th Cir. 2014) (“‘Eleventh Amendment immunity extends to actions against state
officers sued in their official capacities because such actions are, in essence, actions against the
governmental entity[.]’”) (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982).
“[T]he Eleventh Amendment jurisdictional bar applies regardless of the nature of relief
sought[.]” Krainski v. Nevada ex rel. Bd. Of Regents of Nevada Sys. Of Higher Educ., 616 F.3d

963, 967 (9th Cir. 2010) (citing Papason v. Allain, 478 U.S. 265, 276 (1986)).
The State of Oregon has not waived its sovereign immunity from suit in federal court.
Defendants ODOC and OSCI are therefore immune from suit in this court and are both entitled
to summary judgment. See Oien v. Oregon, No. 2:17-CV-00978-HZ, 2018 WL 503259, at *3 (D.
Or. Jan. 22, 2018) (granting summary judgment to ODOC and Two Rivers Correctional
Institution, a prison, based on Eleventh Amendment immunity); see also, Gosney, 2022 WL
959228, at *2 (dismissing claims against ODOC based on Eleventh Amendment immunity). To
the extent plaintiff sues defendant Silva and defendant Gates in their official capacities, those
claims are also barred by the Eleventh Amendment. See Johnson v. Oregon, No. 3:21-CV-

Page 6 – OPINION AND ORDER
00702-MO, 2022 WL 1224897, at *4 (D. Or. Apr. 26, 2022) (dismissing claims against ODOC
officials sued in their official capacities based on Eleventh Amendment immunity).
B. Deliberate Indifference Claim
Deliberate indifference to the serious medical needs of an AIC is “cruel and unusual

punishment” under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104–06 (1976). To
establish an Eighth Amendment claim, a plaintiff must show: (1) they had a “serious medical
need”, and (2) defendants were “deliberately indifferent” to that need. Id. at 104. “[A] serious
medical need is present whenever the failure to treat a prisoner’s condition could result in further
significant injury or the unnecessary and wanton infliction of pain[.]” Clement v. Gomez, 298
F.3d 898, 904 (9th Cir. 2002) (internal citations omitted). Deliberate indifference may be
satisfied by showing: “(a) a purposeful act or failure to respond to a prisoner’s pain or possible
medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th
Cir. 2006) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other
grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)). “[T]he official must both

be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
“Indifference ‘may appear when prison officials deny, delay or intentionally interfere with
medical treatment, or it may be shown by the way in which prison physicians provide medical
care.’” Jett, 439 F.3d at 1096 (quoting McGuckin, 974 F.2d at 1059). “Deliberate indifference is
a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
There is no question gender dysphoria is a “sufficiently serious medical need to implicate
the Eighth Amendment.” Edmo v. Corizon, 935 F.3d 757, 785 (9th Cir. 2019). Here, however,
the record does not show plaintiff suffers or suffered from gender dysphoria. In May 2021,

Page 7 – OPINION AND ORDER
plaintiff asserted he is “gender non conformant” in a kyte he sent defendants, but defendant Silva
conducted a gender dysphoria exam in June 2021 and concluded plaintiff did not “meet the
criteria for gender dysphoria”. Silva Decl. Ex. 3, ECF 50. During the evaluation, plaintiff stated
he was “not uncomfortable” with his body, and he expressed “no desire” either “to be rid of [his]

primary and/or secondary sex characteristics” or to have the “sex characteristics of the other
gender”. Id. Ultimately, the evaluation found there was “[n]o clinically significant incongruence”
between plaintiff’s “experienced/expressed gender and assigned gender”. Id.
Plaintiff does not dispute the validity of the evaluation and does not argue the report was
flawed or based on incomplete or erroneous information. Plaintiff also submits no counter
evidence to show he actually suffers from gender dysphoria or some other serious medical
condition. Given this, plaintiff’s bare assertion that defendants denied him “much needed
medication” and “access to proper care” following his gender dysphoria evaluation is not enough
to survive summary judgment. Even viewing the evidence in the light most favorable to plaintiff,
no reasonable jury could find plaintiff suffered a “serious medical need” to which defendants

were deliberately indifferent. Defendants are therefore entitled to summary judgment on
plaintiff’s deliberate indifference claim. See Singleton v. Washington Dep't of Corr. Med. Dep't,
No. C06-5572 FDB, 2008 WL 2519884, at *4 (W.D. Wash. June 20, 2008) (granting the
defendants summary judgment on the plaintiff’s deliberate indifference claim where there was
“no evidence that Plaintiff has, in fact, been diagnosed with gender dysphoria”).
C. First Amendment Retaliation Claim
“The First Amendment right to file prison grievances is ‘[o]f fundamental import to
prisoners.’” Eaton v. Eynon, No. 2:20-CV-1251-SI, 2022 WL 3903554, at *5 (D. Or. Aug. 30,
2022) (citing Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005)). “‘[R]etaliatory actions

Page 8 – OPINION AND ORDER
taken against a prisoner for having exercised those rights’” violate the First Amendment. Id.
Within the prison context, a viable claim of First Amendment retaliation must demonstrate “‘that
a state actor took some adverse action against an inmate because of that prisoner’s protected
conduct, and that such actions chilled the inmate’s exercise of his First Amendment rights and

the action did not reasonably advance a legitimate correctional goal.’” Id. at *5. (citation
omitted). “[A]n objective standard governs the chilling inquiry; a plaintiff does not have to show
that ‘his speech was actually inhibited or suppressed,’ but rather that the adverse action at issue
‘would chill or silence a person of ordinary firmness from future First Amendment
activities.’” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Rhodes, 408 F.3d at
568-69). “To hold otherwise ‘would be unjust’ as it would ‘allow a defendant to escape liability
for a First Amendment violation merely because an unusually determined plaintiff persists in his
protected activity.’” Id.
Here, plaintiff alleges defendants took adverse action by changing his mental health
status level and did so to punish him for filing kytes and grievances. Compl. 4-5, ECF 2. It is not

clear how the change from MH3 to MH1 constitutes ‘adverse action’, but even if it were adverse,
plaintiff offers no evidence of retaliatory motive. “To raise a triable issue as to motive,” plaintiff
must offer “direct evidence of retaliatory motive” or circumstantial evidence that is sufficiently
“specific to defeat the motion for summary judgment.” McCollum v. Cal. Dep’t of Corr. &
Rehab, 647 F.3d 870, 882 (9th Cir. 2011) (internal quotation marks and citations omitted).
However, the record before the court contains no evidence of retaliatory motive—whether direct
or circumstantial. In fact, the record makes it clear defendants were prompted to reassess plaintiff
on June 28, 2021, in response to his on-going and urgent demands to be moved out of DSU and
not for some improper or retaliatory purpose. See Silva Decl. Ex. 4, ECF 50 (noting plaintiff was

Page 9 – OPINION AND ORDER
“upset/angry” and was “demanding” to be immediately moved from segregation to the mental
health unit). The BHS Diagnostic Review also shows the change to plaintiff’s mental health
status was based on applicable criteria and the professional judgment of defendant Silva and
defendant Gates.2 See id. at Ex. 5. Plaintiff does not dispute the substantive findings of the

Diagnostic Review and does not otherwise challenge the validity of the evaluation. Thus,
plaintiff provides no basis on which a reasonable jury could find defendants changed plaintiff’s
diagnosis from MH3 to MH1 for some reason other than those stated in the Diagnostic Review.
Plaintiff’s bare allegation that defendants changed his mental health status level based on a
retaliatory motive is insufficient to survive summary judgment. See Wood v. Yordy, 753 F.3d
899, 905 (9th Cir. 2014) (Ninth Circuit cases considering First Amendment retaliation claims
“have repeatedly held that mere speculation that defendants acted out of retaliation is not
sufficient”) (citing McCollum, 647 F.3d at 882); see also, Evans v. Gower, No. 2:17-CV-01162-
MK, 2022 WL 3226968, at *14 (D. Or. Aug. 10, 2022) (granting the defendants summary

2 The “Justification for Diagnostic Change” in the BHS Diagnostic Review form completed by
defendants on June 28, 2021, provides as follows (with the original references to plaintiff as, Mr.
Abney, unaltered):
Mr. Abney was assessed by BHS on 9/25/20 after reporting he had been
experiencing auditory and visual hallucinations. The assessment indicated that
some of Mr. Abney’s reports were not consistent with a full psychotic disorder
and go on to state previous documentation has indicated secondary gain to obtain
a ‘MH3 diagnosis for purpose of less time in segregation.’ On a note from BHS
dated 9/8/17, Mr. Abney reported, ‘I think it is more of a BHS issue. I don’t want
to be in Seg and I heard that if you are an MH3 you don’t have to stay in Seg.’ It
was determined during that interview with BHS that Mr. Abney’s diagnosis was
correct as Substance Use Disorder. Mr. Abney has not been on medication and
documentation from BHS going back to November indicate inconsistencies with
symptoms and potential for malingering. Due to current assessment, initial mental
health assessments, and the last 8 months of documentation, Mr. Abney’s
diagnosis will be updated to reflect 292.9 Substance Use Disorder.
Id.

Page 10 – OPINION AND ORDER
judgment where the plaintiff “failed to offer any evidence that rises above mere speculation to
show Defendant Lopez acted out of a retaliatory motive”).
Additionally, no reasonable jury could find defendants changed plaintiff’s mental health
status to punish him for filing grievances because he filed no grievances before June 28, 2021.

Plaintiff filed three kytes prior to June 28, 2021, but those kytes sought assistance regarding
plaintiff’s claims of gender dysphoria, and defendants responded in a timely manner and by
scheduling multiple appointments between BHS staff and plaintiff. See Mot. Def. J. 14-6, ECF
18. Plaintiff does not explain how or why his kytes could have prompted defendants to change
his mental health status level.
In sum, the record shows defendants changed plaintiff’s mental health status for the
reasons stated in the Diagnostic Review and not to punish plaintiff for filing kytes. Thus, no
reasonable jury could find plaintiff’s First Amendment rights were violated based on the record
before the court. Defendants are therefore entitled to summary judgment on plaintiff’s retaliation
claim. See Wood, 753 F.3d at 901 (affirming the district court’s grant of summary judgment to

the defendants on the plaintiff’s retaliation claim because “[t]here is . . . insufficient evidence to
create a material of fact as to a retaliatory motive”)); see also, Meshell v. Steward, No. 2:19-CV-
01063-AC, 2021 WL 1206577, at *4 (D. Or. Mar. 30, 2021) (granting the defendants summary
judgment on the plaintiff’s retaliation claim after finding “no evidence of a causal connection”
between the defendant’s contested action and the plaintiff’s “protected activity of pursuing
grievances”).

Page 11 – OPINION AND ORDER
D. Remaining Claims
The Complaint alleges plaintiff’s rights have also been violated under the Fourth, Fifth,
and Fourteenth Amendments. However, the body of the Complaint only alleges facts that could
imply a cause of action under the First and Eighth Amendments, as discussed above. Plaintiff

does not explain what rights were allegedly violated under the other named amendments and
none are apparent to the court. Defendants are therefore entitled to summary judgment on these
claims.
CONCLUSION

The Court GRANTS defendant’s motion for summary judgment, ECF 48. Plaintiff’s
claims are dismissed with prejudice.
IT IS SO ORDERED.

DATED: _O__c_to__b_e_r _3_,_ 2. 022

Marco A. Hernández
United States District Judge

Page 12 – OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395244. Public record. Not legal advice.