Brown v. Lane County

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 L. GENT; WELLPATH, LLC;

JOHN/JANE DOES 1-5,

Defendants.

AIKEN, District Judge:

Plaintiff Anthony Brown proceeds in forma pauperis (“IFP”) in this civil rights

action against Defendants Deputy Nathan Gent and Lane County. Before the Court

is Defendants’ motion for summary judgment (“MSJ”), ECF No. 55. For the reasons

explained, Defendants’ motion is GRANTED. This case is DISMISSED. Judgement

shall be entered accordingly.

BACKGROUND

I. Procedural Background

Plaintiff was incarcerated at Lane County Adult Correctional Facility for an

Assault 4, strangulation charge in October 2019. Second Am. Compl. (“SAC”) ¶ 9,

ECF No. 27. There, he received mental health treatment, including medication.

Plaintiff filed this case on December 23, 2021, ECF No. 1, against his treating

physician, Dr. Alfredo Velez; Lane County; and a correctional Deputy, Nathan Gent.

Id. The gist of Plaintiff’s claims is that Dr. Velez negligently prescribed medication

that made Plaintiff “nonresponsive” and that Deputy Gent used excessive force when

restraining Plaintiff in his nonresponsive state.

Under the protocols for analyzing cases brought IFP, The Court screened and

dismissed Plaintiff’s complaint on January 21, 2022, finding the allegations deficient.

ECF No. 7. However, the Court granted leave to amend, providing Plaintiff an

opportunity to remedy the identified deficiencies. Id. Plaintiff filed an amended

complaint on February 12, 2022. After Defendant Dr. Velez filed a motion to dismiss,

Plaintiff requested leave to file a second amended complaint. The Court granted

Plaintiff’s request, and Plaintiff repleaded his allegations a third time on September

22, 2022. ECF No. 27.

In the course of litigation, the Court extended discovery several times. ECF

Nos. 24, 32, 39. Still, Plaintiff failed to respond to discovery requests from Defendant

Dr. Velez. After Dr. Velez moved for summary judgment, Plaintiff filed an untimely

motion asking for more time to respond to Dr. Velez’s requests for admission. The

Court found that, in reaching its decision on summary judgment, evidence in the

record was sufficient, such that the Court need not rely on Plaintiff’s admissions or

lack thereof. Op. and Order, ECF No. 51 at 9. The Court granted summary judgment,

and Dr. Velez was dismissed from the case. Id.

The Court again extended the time for discovery through March 15, 2024, on

which date dispositive motions were due. ECF No. 50. However, from the time

Plaintiff filed the case until the close of discovery on March 15, Plaintiff failed to

schedule or otherwise obtain depositions from Lane County or Deputy Gent. Just

before the close of discovery, Defendants conferred with Plaintiff on their motion for

summary judgment. That conferral spurred Plaintiff to request another 120 days to

depose Defendants. ECF No. 52. On March 15, Defendants moved for summary

judgment. Because Plaintiff failed to provide any explanation evincing diligence on

his part to obtain the discovery he needed or show good cause why the Court’s

scheduling order should be amended to again save counsel from his delays, the Court

denied Plaintiff’s motion to extend discovery. ECF No. 62.

II. Factual Background

A factual discussion of Plaintiff’s medical history, treatment, treatment

refusal, and care alleged to be related to excessive use of force can be found in the

Court’s prior opinion granting summary judgment and dismissing Dr. Nathan Velez

from this case. See Op. and Order at 1-5, ECF No. 51.

As to Plaintiff’s claims against Deputy Gent and Lane County, Plaintiff alleges

that around January 3rd, 2020, corrections staff brought Plaintiff to the medical

segregation unit to be assessed. SAC ¶ ECF 27. Plaintiff alleges that Deputy Gent

“subdue[ed]” Plaintiff in his cell and “[got] him into a wheelchair.” Id.

During transport to the medical segregation unit, Plaintiff was “non-

responsive” to staff requests. Id. In the process of getting Plaintiff from transport to

the medical unit, Plaintiff alleges that Deputy Gent “slammed him to the ground.”

Id. During the incident, Plaintiff alleges that he was suffering from side effects of

medications, including feeling dazed, incoherent, and confused. Id. ¶ 10.

Defendant Lane County maintains video surveillance of the jail and the

interaction between Deputy Gent and Plaintiff was recorded. Vejar Decl. ¶ 3 (ECF

No. 55-1). Per the Declarations of Deputy Gent and Kyle Seaholm, along with the

Use of Force Report issued on the incident and the video surveillance, Defendants

maintain that the only use of force applied to Plaintiff occurred when securing his

hand restraints in the Day Room. Gent Decl. ¶ 7 (ECF No. 55-2); Seaholm Decl. ¶ 5

(ECF No. 55-4); Vejar Decl., Exhibit 1.

After the incident, Plaintiff submitted several Non-Emergent Health Services

Request Forms. Evidence in the record is that none of those request forms included

any reference to conditions arising from use of force. Vejar Decl., Exhibit 3.

Defendants supply evidence that Plaintiff had several Medical Sick Calls during the

relevant time, but that none of which allude to a use of force incident as a cause of

pain or discomfort for him. Quillan Decl. (ECF No. 55-3), Exhibit 1. The record shows

that Plaintiff’s Medical Sick Call on January 14th, 2020 notes that Plaintiff

complained of pain in his forehead, and on March 12th, 2020, he credits his pain to

sleeping on the thin jail mattress. Id.

Plaintiff alleges two federal causes of action. First, Plaintiff alleges that

“violent treatment” by Deputy Gent amounts to a violation of the Eighth

Amendment’s prohibition against cruel and unusual punishment. SAC ¶ 24. The

second federal claim is a Monell Claim which attempts to establish that Lane County

has a written or unwritten policy, custom or practice, of physical beatings and

excessive force. Id. at 38.

Plaintiff’s state law-based claims allege four separate causes of action. First,

Plaintiff alleges that Deputy Gent committed the intentional tort of battery against

Plaintiff. Id. at 26. Second, Plaintiff alleges that Defendant Lane County acted

negligently in failing to train its employees in properly medicating inmates and in

the transport of non-responsive and ill inmates. Id. at 27. Third, Plaintiff alleges

intentional infliction of emotional distress based on the alleged incident. Id. at 34.

Finally, Plaintiff alleges negligent infliction of emotional distress in the alternative

of the intentional infliction of emotional distress. Id. at 35

LEGAL STANDARD

A party is entitled to summary judgment if the moving party “shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the burden of

establishing the absence of a genuine dispute of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). A genuine dispute of material fact exists only “if

the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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 must view the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in the nonmoving party's favor. Clicks

Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). The moving

party bears the initial burden of identifying portions of the record that demonstrate

the absence of a fact or facts necessary for one or more essential elements of each

claim. Celotex, 477 U.S. at 323. If the moving party meets this burden, the opposing

party must then set out specific facts showing a genuine issue for trial to defeat the

motion. Anderson, 477 U.S. at 250.

Additionally, “[i]t is not the district court's job to sift through the record to find

admissible evidence in support of a non-moving party's case.” Claar v. Burlington

N.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (citing Celotex, 477 U.S. at 324). Therefore,

when a plaintiff makes assertions but does not identify specific evidence in the record

to support those assertions, the court is not required to search for it. See F.T.C. v.

Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citations omitted) (“A non-movant's

bald assertions or a mere scintilla of evidence in his favor are both insufficient to

withstand summary judgment.”).

DISCUSSION

I. Eighth Amendment Cruel and Unusual Punishment

The unnecessary and wanton infliction of pain violates the cruel and unusual

punishment clause of the eighth amendment. Hudson v. Mcmillian, 503 U.S. 1, 5

(1992). When a plaintiff alleges that correctional officers used excessive force against

him, the issue is “whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy,

559 U.S. 34, 37 (2010) (per curiam); Furnace v. Sullivan, 705 f.3d 1021, 1028 (9th Cir.

2013). The standard has both objective and subjective elements. Objectively, the

alleged wrongdoing must be “harmful enough to establish a constitutional violation.”

Hudson, 503 U.S. at 8 (internal quotation marks and citations omitted). Subjectively,

prison officials must act “with a sufficiently culpable state of mind,” id., but an

“express intent to inflict unnecessary pain is not required.” Whitley v. Albers, 475

U.S. 312, 319 (1986) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

To determine whether a particular use of force evinces the wanton infliction of

pain, the court must “consider the objective need for force, the relationship between

any such need and the amount of force actually used, the threat reasonably perceived

by the correctional officer, whether the officer took efforts to temper the severity of

his response, and the extent of the inmate's injury.” Marquez v. Gutierrez, 322 F.3d

689, 692 (9th Cir. 2003). In considering use of force measures, courts must afford

prison officials “wide-ranging deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve internal order and discipline

and to maintain institutional security.” Whitley, 475 U.S. at 321-22.

Here, the allegations include that Deputy Gent “subdue[ed]” Plaintiff in his

cell and got Plaintiff into a wheelchair, and at some point, slammed him to the

ground. The evidence in the record includes detailed “use of force” reports. In his

report, ECF No. 55-2 at 6-7, Deputy Gent states that on January 3, he responded to

a call from medical staff that Plaintiff was unresponsive in his cell. Deputy Gent

noted that Plaintiff “seemed to be disoriented and was tensing his muscles.” Id at 6.

Deputy Gent further reported:

Brown began to tense his arms but was not trying to pull away. Brown

was escorted up the stairs where he was placed into a wheelchair.

Brown did not comply with verbal commands and had to be placed into

the wheelchair by staff. Brown was tensing his body and would not sit

in the wheelchair. I placed a hand on Brown's forehead and placed

pressure down in order to assist him into the wheelchair. As Brown was

being wheeled from the day room he began to slowly kick his legs

towards staff. I retrieved leg restraints from the 3N office. As I was

attempting to place the restraints on his legs Brown began to tense his

body and lift his legs. I placed my knee over the top of Brown's thigh in

order to keep him from lifting his right leg. I placed the leg restraints

on his right leg and double locked them. Once the other leg was secured

Brown was escorted to 1E03. Brown continued to tense his body during

the rehouse and search but never tried to pull away from staff.

Id. at 7. Reports filed that day from other correctional staff who assisted in getting

Plaintiff into a wheelchair and transported to the medical unit state that Plaintiff

was tense and resistant, and that they placed a hand on a shoulder, over a knee, or

held his arm to get him into the proper restraints. See id. at 8-12. Video evidence in

the record shows correctional staff securing Plaintiff’s hand restraints in the Day

Room. See, Gent Decl. ¶ 7; Seaholm Decl. ¶ 5; Vejar Decl., Exhibit 1.

In response to Defendants’ summary judgment motion, Plaintiff states that the

alleged use of force potentially took place outside of the view of the video surveillance

footage produced by Defendants and reasserts the claims made in the Complaint.

ECF No. 59. However, the party opposing summary judgment “may not rest upon

mere allegation or denials of his pleading but must set forth specific facts showing

that there is a genuine issue for trial.” Anderson, 477 U.S. 242, 256 (1986).

Plaintiff’s claim that he was slammed to the ground and that his shoulder was

dislocated is not borne out in the record. Evidence in the record, including video

evidence, is that “extent of the injury” was minimal, the “need for application of the

force” that was utilized was appropriate and it was a “good-faith effort to restore

discipline.” Marquez, 322 F.3D at 692. Defendants’ evidence is that Deputy Gent

used appropriate force to restrain Plaintiff from kicking staff and from injuring

himself by getting out of his wheelchair.

Further, according to the Medical Sick Calls Plaintiff made directly after the

incident, he did not complain about his shoulder being dislocated or any injury that

was caused by Deputy Gent or the incidents of the day in question. See Quillan Decl.,

Exhibit 1. The only pain Plaintiff noted on or around the time of the alleged incident

was to his forehead, which is consistent with the use of force applied by Deputy Gent

outlined in his Use of Force Report. Gent Decl. ¶ 6. The record is that the extent of

Plaintiff’s pain was minimal, and that Plaintiff did not allege pain in his forehead as

part of his complaint. See SAC, ECF No. 27.

Even if some action by Deputy Gent was taken outside of a camera view,

Plaintiff nonetheless failed to meet his burden as to Defendants’ arguments on

qualified immunity and whether Deputy Gent’s actions qualify as malicious or

sadistic. Defendants are entitled to summary judgment on this issue.

II. Monell Claim

In its Monell decision, the U.S. Supreme Court found that Congress intended

for § 1983 to apply to municipalities and other local government units such that local

governments may be held liable under § 1983 “if the governmental body itself subjects

a person to a deprivation of rights or causes a person to be subjected to such

deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quotation marks

omitted); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978).

In order to establish municipal liability under Monell, a plaintiff must show

that a policy or custom of a municipality “reflects deliberate indifference to the

constitutional rights of its inhabitants and led to an injury.” City of Canton v. Harris,

489 U.S. 378, 392 (1989). In order to prevail on a claim like this, a plaintiff must

prove: “1. The plaintiff was deprived of a constitutional right; 2. the entity defendants

had a longstanding practice or custom; 3. the entity defendants’ longstanding practice

or custom . . . was unconstitutional in that it was deliberately indifferent to a

substantial risk of serious harm; 4. the entity defendants’ longstanding custom or

practice caused harm to plaintiff.” Castro, 833 F.3d at 1073-74.

To impose liability against an entity for its failure to act, a plaintiff must show:

(1) that an employee violated the plaintiff’s constitutional rights; (2) that the entity

has customs or policies that amount to deliberate indifference; and (3) that these

customs or policies were the moving force behind the employee’s violation of

constitutional rights. Long v. County of Los Angeles, 442 F.3d 1178, 1185-86 (9th Cir.

2006).

Plaintiff does not provide information to support his claim that Lane County

has a policy or custom that would have led Deputy Gent to act in a way that infringes

on Plaintiff’s rights or amounted to deliberate indifference. In Plaintiff’s Complaint,

he alleges that Defendant Lane County has a “written or unwritten, policy, custom

or practice, of physical beatings and excessive force.” SAC ¶ 38. However, there is

no evidence in the record of such a policy, written or unwritten. Defendants are

entitled to summary judgment on this issue.

III. Qualified Immunity

Defendants also argue that they are entitled to qualified immunity.

Qualified immunity protects government officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan, 555

U.S. 223, 231 (2009). In determining whether a defendant is entitled

to qualified immunity, the court engages in a two-part analysis. First, the court asks,

“[t]aken in the light most favorable to the party asserting the injury, do the facts

alleged show the officer's conduct violated a constitutional right?” Saucier v. Katz,

533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 235–236 (2009).

Second, the court asks, “whether the right was clearly established.” Id. A right is

clearly established if “it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id. at 202. A court has discretion to decide

“which of the two prongs of the qualified immunity analysis should be addressed first

in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at

236; see also Mueller v. Auker, 576 F.3d 979, 993–94 (9th Cir. 2009). Here, as

discussed above, Plaintiff has failed to establish the violation of any statutory or

constitutional right, i.e., the first prong of the qualified immunity test. Therefore, it

is unnecessary to reach the question of whether Defendants are entitled

to qualified immunity.

IV. State Law Claims

A. Battery

The tort of battery requires (1) a person act with intent to cause harmful or

offensive contact with another person, and (2) those actions directly or indirectly

cause a harmful or offensive contact with that other person. Underwood v. City of

Portland, 319 Or. App. 648, 657 (2022); Bakker v. Baza'r, Inc., 275 Or. 245, 249 (1976).

Plaintiff has provided no information as to the intent behind Deputy Gent’s

actions. Defendants have presented evidence, through reports written by multiple

correctional staff on the day of the incident, declarations, and video surveillance, that

Gent’s actions were aimed at safely transporting Plaintiff to the medical unit to

receive treatment. Plaintiff has provided no evidence that Deputy Gent’s conduct

was with the intent to cause harmful or offensive contact. Deputy Gent explains in

his Use of Force Report that the pressure that was applied to Plaintiff was meant to

help keep him in his wheelchair while he was being transported to the medical

segregation unit. Gent Decl., Exhibit 1 at 5. Furthermore, the footage of the events

that occurred within the Day Room shows that Gent did not slam Plaintiff to the

ground, but rather applied pressure to keep him in the wheelchair and held his legs

to place restraints. Vejar Decl., Exhibit 1; Gent Decl., ¶ 6. Defendants are entitled

to summary judgment on this point.

B. Negligence

To prove a case for negligence, a Plaintiff must plead and then prove “(1) that

[the] defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an

interest of a kind that the law protects against negligent invasion, (3) that [the]

defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a

cause of [the] plaintiff's harm, and (5) that [the] plaintiff was within the class of

persons and [the] plaintiff's injury was within the general type of potential incidents

and injuries that made [the] defendant's conduct negligent.” Piazza ex rel. Piazza v.

Kellim, 271 Or. App. 490, 516 (2015) (quoting Stewart v. Kids Inc. of Dallas, 245 Or.

App. 267, 274-275 (2011)).

Plaintiff alleges that Lane County’s failure to administer training regarding

medical treatment and properly medicating inmates or in the handling and custodial

treatment of non-responsive inmates resulted in Plaintiff’s harm. However, Plaintiff

has no evidence to support that any failure on Lane County’s part to train, hire,

supervise, or discipline resulted in the harm suffered by Plaintiff. Plaintiff must raise

a genuine issue of material fact as to each element of his negligence claim. See

Crawford-El v. Britton, 523 U.S. 574, 600 (1998) (A plaintiff opposing a motion for

summary judgment “must identify affirmative evidence from which a jury could find

that the plaintiff has carried his [ ] burden of proving” the elements of his claim). The

record contains no evidence that Lane County was deficient or that any failure to

train resulted in the injury Plaintiff is alleging. Defendants are entitled to summary

judgment on this claim.

C. Intentional Infliction of Emotional Distress

Under Oregon law, the elements of an IIED claim are: (1) the defendant

intended to inflict severe emotional distress on the plaintiff; (2) the defendant's acts

were the cause of the plaintiff's severe emotional distress; and (3) the defendant's acts

constituted an extraordinary transgression of the bounds of socially tolerable conduct.

Conroy v. Clark, 2020 WL6731724 *1, 5 (D. Or. 2020).

Beginning with intent, the “intent element is established where the actor

desires to inflict severe emotional distress and also where the actor knows that such

distress is certain, or substantially certain, to result from the conduct.” Id. at 6 (citing

Simspon v. Burrow, 90 F. Supp. 2d 1108, 1124 (D. Or. 2000)); Mullen v. Meredith

Corp., 271 Or. App. 698, 714 (2015). Second, a plaintiff must adequately allege that

the defendant’s acts were the cause of a plaintiff’s severe emotional distress. Finally,

a plaintiff must plead sufficient facts to support a finding that the defendant’s actions

transgressed the bounds of socially tolerable conduct. Whether the alleged conduct

constitutes an extraordinary transgression of the bounds of socially tolerable conduct

is a question of law for the court. Conroy, 2020 WL6731724 at *6.

The record contains no evidence to support that Deputy Gent intended to inflict

emotional distress; that Deputy Gent’s actions were the cause of Plaintiff’s severe

emotional distress; or that the limited force used by Deputy Gent was outside the

bounds of socially tolerable conduct. The evidence in the record is that the force

applied was to aid Plaintiff during transport to the medical unit. In Plaintiff’s

response, he failed to raise any arguments that would support his claim for

intentional infliction of emotional distress. Defendants are entitled to summary

judgment on this claim.

D. Negligent Infliction of Emotional Distress

With limited exceptions, Oregon courts do not permit the recovery of damages

for negligently inflicted emotional distress in the absence of evidence of some related

physical injury. Simons v. Beard, 188 Or. App. 370, 375-376 (2003); Hammond v.

Central Lane Communications Center, 312 Or. 17 (1991). Courts refer to the physical

impact rule as requiring a physical injury that gives rise to emotional distress.

Simons, 188 Or. App. at 376; Fehely v. Senders, 170 Or. 457, 461 (1943). At a

minimum, the physical impact rule requires an act or omission that results in some

perceptible physical effect on a plaintiff. Simons, 188 Or. App. at 376.

The totality of the record supports that the only use of force occurred when

Deputy Gent needed to place Plaintiff into the wheelchair. Even if the alleged

incident did occur in Plaintiff’s cell, an assertion contradicted by correctional staff

reports, there is no evidence that would support a genuine issue of material fact

concerning the emotional distress it would have caused Plaintiff. The evidence is that

Plaintiff did not make any reports that the incident involving Deputy Gent caused

him harm, but he made several complaints about his mental health through Non-

Emergent Health Services Request Forms crediting the issues to the medications he

was prescribed and other conditions of confinement. Vejar Decl., Exhibit 3. In

Plaintiff’s response, he did not point to any evidence of emotional distress suffered or

evidence to support that his emotional distress was caused by the physical injury that

was alleged. Defendants are entitled to summary judgment on this point.

CONCLUSION

For the reasons explained, Defendants’ Motion for Summary Judgment, ECF

No. 55, is GRANTED. This case is DISMISSED. Judgment shall be entered

accordingly.

IT IS SO ORDERED.

Dated this _5_t_h__ day of ___J_u_n_e___ 2024.

______________/_s/_A_n__n_ A__i_k_e_n_

Ann Aiken

United States District Judge