Fernald v. Deschutes County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

DEVON FERNALD, Civ. No. 6:24-cv-02155-AA

Plaintiff, OPINION & ORDER

v.

DESCHUTES COUNTY, et al.,

Defendants.

______________________________________

AIKEN, District Judge:

Plaintiff Devon Fernald seeks leave to proceed in forma pauperis (“IFP”) in this

action. ECF No. 2. Plaintiff is represented by counsel. Plaintiff alleges seven causes

of action against Deschutes County and its employees in their personal capacities.

First Am. Compl. (“FAC” or “complaint”), ECF No. 5. For the reasons set forth below,

plaintiff’s IFP Application, ECF No. 2, is GRANTED. However, plaintiff’s complaint,

ECF No. 5, is DISMISSED with leave to amend.

BACKGROUND

In December 2022, plaintiff was arrested for fireworks violations and brought

in for “booking” at the Deschutes County Adult Jail. FAC ¶ 1. Defendants are

Deschutes County; Sheriff Shane Nelson; and Jail Commander Captain Michael

Shults. Id. ¶ 4. Plaintiff also names as defendants Shaun Murphy, who works in

“Classification,” and Luis Torrico, who works in “Inmate Orientation.” Id. Last,

plaintiff names John/Jane Does 1-5, who he alleges are “county corrections employees

neglecting plaintiff.” Id.

Plaintiff alleges that while he was being booked, another detainee walked

through the booking area and struck him in the head. Id. ¶ 2. Plaintiff asserts that

the other detainee was “drug-addled” and beat plaintiff “viciously” causing “brutal

head, neck, and ear injuries.” Id. Plaintiff maintains that he was not taken to a

hospital or treated for 75 days. Id. Plaintiff alleges that he was transferred to the

state hospital where he was diagnosed with ear and cranial injuries. Id. He alleges

that other detainees were present and saw the “dangerous” detainee approaching,

and “moved away” from him, but the officers who booked plaintiff did not. Id. In

plaintiff’s view, “deputy staff . . . should have detected the impaired condition of the

offender and housed him in a separate holding cell for observation and inmate safety.”

Id.

LEGAL STANDARD

Generally, all parties instituting any civil action in the 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).

Regarding the second of these determinations, district courts are authorized

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. A district court may deny leave to amend when amendment

would be futile. Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1130

(9th Cir. 2013).

DISCUSSION

Plaintiff alleges claims under 42 U.S.C. § 1983 for violation of his rights under

the Fourth and Fourteenth Amendment. Plaintiff also brings five state law tort

claims. Plaintiff’s counsel has been admonished by the Court about drafting sufficient

pleadings in a case with similar claims. See e.g., Brown v. Lane Cnty., No. 6:21-CV-

01866-AA, 2022 WL 195644, at *3 (D. Or. Jan. 21, 2022). Plaintiff’s counsel replicates

the same insufficient pleadings in this case as those before. Counsel also fails to

comply with Local Rule 15-1 (b). Nevertheless, in the interest of justice and efficient

management of its docket, the Court proceeds to screening the complaint under 28

U.S.C. § 1915(e)(2)(B).

I. Constitutional Claims Under 42 U.S.C. § 1983

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

plaintiff seeking to hold a municipal defendant liable for constitutional violations

under § 1983 cannot do so by asserting vicarious liability. Instead, a plaintiff must

allege that his constitutional rights were violated pursuant to the defendant's custom,

practice, or policy. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658,

690-91 (1978); Shah v. Cnty. of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)

(providing that claims for municipal liability under Section 1983 can be “based on

nothing more than a bare allegation that the individual officers’ conduct conformed

to official policy, custom, or practice.”) (internal citation omitted). Such a claim

requires a “direct causal link between a municipal policy or custom and the alleged

constitutional violation.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir.

2016) (internal citation omitted) (en banc).

The constitutional right at issue depends on the custodial status of the

plaintiff. The Fourth Amendment governs claims of excessive force during a seizure

of a free citizen. Graham v. Connor, 490 U.S. 386, 394 (1989). After arraignment, the

Due Process Clause of the Fourteenth Amendment protects pretrial detainees from

excessive force that amounts to punishment. Kingsley v. Hendrickson, 576 U.S. 389,

397-98 (2015). After conviction, the Cruel and Unusual Punishment Clause of the

Eighth Amendment governs the use of force against a prisoner. Whitley v. Albers, 475

U.S. 312, 319 (1986).

A. Claim One: Fourth Amendment Violations

Plaintiff alleges claims for unreasonable search and seizure, excessive force,

and unconstitutional training policies. FAC at 4 (First Claim for Relief). Plaintiff

asserts that “Deschutes County has a written or unwritten policy, custom and/or

practice of training their members to violate people’s Fourth Amendment rights[.]”

Plaintiff states that defendants Shane Nelson and Michael Shults “ratified policies of

action as to visibly addled detainees.” Id. Plaintiff alleges that his Fourth Amendment

rights were violated when defendants (1) failed to protect him from the offending

detainee; (2) failed to take him to a hospital; (3) failed to treat or diagnose him for 75

days; and (4) failed to segregate potentially dangerous detainees. FAC ¶ 13.

1. Failure to Protect/Intervene

The Fourth Amendment covers “searches and seizures[.]” Cnty. of Sacramento

v. Lewis, 523 U.S. 833, 843 (1998). Police officers have a duty to intercede when their

fellow officers violate the constitutional rights of a suspect or other citizen.” United

States v. Koon, 34 F.3d 1416, 1447 (9th Cir.1994), rev'd on other grounds, 518 U.S.

81, 116 (1996). In this regard, a law enforcement officer who fails to intercede when

his fellow officers deprive a victim of his Fourth Amendment right to be free from an

excessive use of force would, like his fellow officers, be liable for depriving the victim

of his Fourth Amendment rights. Id. A law enforcement officer may only be held liable

for failing to intercede if he had a “realistic opportunity” to do so. Cunningham v.

Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000). For example, if officers are not present

at the time of a constitutional violation, they have no realistic opportunity to

intercede. Id. at 1290. In addition, if a constitutional violation occurs too quickly,

there may be no realistic opportunity to intercede to prevent the violation. See, e.g.,

Knapps v. City of Oakland, 647 F.Supp.2d 1129, 1159-60 (N.D.Cal.2009).

Plaintiff fails to specify which defendant failed to protect him or failed to

intervene. More importantly, stated above, the Fourth Amendment requires law

enforcement officers to intervene when their fellow officers are violating a suspect’s

constitutional rights. Koon, 34 F.3d at 1447. Here, plaintiff’s allegations are that a

detainee passing through the booking area punched him. FAC ¶ 2. Plaintiff fails to

allege facts that show that an officer of the law committed a constitutional violation

in which plaintiff’s arresting officers had a duty to intervene.

Plaintiff’s allegations also fail to show that any decision-maker at Deschutes

County ratified a subordinate’s decision to violate plaintiff’s rights by failing to

protect him or intervene. Such a claim requires a “direct causal link between a

municipal policy or custom and the alleged constitutional violation.” Castro v. Cnty.

of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016). A supervisor's subsequent

“ratification” of a subordinate's conduct can form the basis for liability under § 1983.

However, the supervisor must actually approve of the subordinate's decision and the

basis for it, and be the product of a “conscious, affirmative” choice to ratify the conduct

in question. Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir.1992), cert. denied,

510 U.S. 932 (1993).

If plaintiff chooses to amend his complaint, he must allege facts that allow an

inference to be drawn that a specific defendant is liable for the misconduct alleged.

The well-known standards for pleadings require more than a sheer possibility that a

defendant has acted unlawfully. Plaintiff must allege a specific right that was

violated, which defendant violated it, and how plaintiff was harmed by the violation.

Plaintiff’s claim for “failure to protect or intervene” in violation of the Fourth

Amendment under § 1983 is dismissed with leave to amend.

2. Failure to Provide Medical Care

“[t]he Fourth Amendment requires that law enforcement officers provide

objectively reasonable post-arrest care to an arrestee.” Espinoza v. Cal. Highway

Patrol, Case No. 16-cv-00193, 2016 WL 4943960, at *3 (E.D. Cal. Sept. 16, 2016)

(citing Tatum v. City and Cnty. of San Francisco, 441 F.3d 1090, 1098-99 (9th Cir.

2006)). An officer may satisfy this obligation “by either promptly summoning the

necessary medical help or by taking the injured detainee to a hospital.” Tatum, 441

F.3d at 1099. “Whether the officers acted reasonably and were sufficiently ‘prompt’

depends in part on the length of the delay and the seriousness of the need for medical

care.” Holcomb v. Ramar, Case No. 13-cv-1102, 2013 WL 5947621, at *4 (E.D. Cal.

Nov. 4, 2013).

Accepting as true the allegation that plaintiff was beaten “viscously,” plaintiff

has alleged that he suffered injuries that would have been reasonably observable. On

its face, these facts are sufficient to assert plaintiff was in reasonable need of medical

attention. However, it is not clear which defendant knew of plaintiff’s injuries and

failed to provide objectively reasonable care, or what role each defendant played.

Plaintiff also fails to connect the dots to plead a municipal liability claim under §

1983—that is, plaintiff has not alleged a “direct causal link between a municipal

policy or custom and the alleged constitutional violation.” Castro, 833 F.3d at 1075.

If plaintiff seeks to allege liability on the part of any defendants’ supervisor, the Court

reminds plaintiff that under § 1983, a supervisor is liable for the acts of his

subordinates if the supervisor participated in or directed the violations or knew of the

violations of the subordinates and failed to act to prevent them. Preschooler II v. Clark

County School Bd. Of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007). In the FAC,

plaintiff makes no allegation that any supervisor saw, witnessed, or knew of

plaintiff’s injuries.

Plaintiff’s claim for “failure to provide medical care” in violation of the Fourth

Amendment under § 1983 is dismissed with leave to amend.

3. Failure to Treat or Diagnose For 75 Days

Plaintiff alleges that defendants failed to treat or diagnose him for his injuries.

To the extent plaintiff pleads this claim under the Fourth Amendment, the Court

applies the same analysis as it did above for the alleged “failure to provide medical

treatment.” Otherwise, this claim should be pled under the Fourteenth Amendment,

because any search and seizure had presumably concluded while the alleged 75-day

period of custody was ongoing. Therefore, plaintiff was likely a pretrial detainee,

triggering Fourteenth Amendment analysis, rather than Fourth Amendment

analysis. Kingsley, 576 U.S. at 397-98.

In Gordon v. County of Orange, the Ninth Circuit set forth the elements to

state a claim for inadequate medical care brought by pretrial detainees under the

Fourteenth Amendment. 888 F.3d 1118, 1124–25 (9th Cir. 2018). Under Gordon, a

pretrial detainee who brings an inadequate medical care claim must show that: (1)

the defendant made an intentional decision with respect to the conditions under

which the plaintiff was confined; (2) those conditions put the plaintiff at substantial

risk of suffering serious harm; (3) the defendant did not take reasonable available

measures to abate that risk, even though a reasonable official in the circumstances

would have appreciated the high degree of risk involved—making the consequences

of the defendant's conduct obvious; and (4) by not taking such measures, the

defendant caused the plaintiff's injuries. Id. at 1125. See also Russell v. Lumitap, 31

F.4th 729, 739 (9th Cir. 2022).

Plaintiff has failed to allege which defendant failed to treat him or diagnose

him for injuries following his detainment. The Court finds that there are no doctors

or medical staff named in this lawsuit. Plaintiff has also not alleged facts sufficient

to show that any supervisor ratified or approved of a policy violative of plaintiff’s

rights. Finally, plaintiff has not pled facts from which the Court can draw an

inference of municipal liability on the part of Deschutes County.

Plaintiff’s claim for “failure to treat or diagnose” in violation of the Fourth

Amendment under § 1983 is dismissed with leave to amend.

4. Failure to Segregate Detainees in Holding Cells

It is not clear from the pleadings whether plaintiff is alleging that failing to

segregate detainees constitutes unlawful search and seizure, failure to train, or

excessive force. As pled, the Court cannot find any facts to support a claim under the

Fourth Amendment. Plaintiff’s claim for “failure to segregate detainees” in violation

of the Fourth Amendment under § 1983 is dismissed with leave to amend.

B. Claim Two: Fourteenth Amendment Violations

Plaintiff claims that defendants violated his rights under the Fourteenth

Amendment based on defendants’ unreasonable conduct, arbitrary conduct,

deliberate indifference, or conduct that shocks the conscience. FAC at 5 (Second

Claim for Relief). Plaintiff “incorporates the above,” “as applicable,” thereby leaving

it to the Court to determine which of plaintiff’s allegations from his Fourth

Amendment Claim are applicable in the context of his Fourteenth Amendment claim.

The Court will not develop pleadings for plaintiff’s counsel. Generally

speaking, the Court permits incorporation of previously stated allegations when

doing so avoids cumulative pleadings. However, by neglecting to provide even “a short

and plain statement” showing that plaintiff is entitled to relief under the Fourteenth

Amendment, the pleadings fall below the federal standard. Iqbal, 556 U.S. at 677–

78. The sole allegation under plaintiff’s second claim for relief is that “staff violated

[plaintiff’s] Fourteenth Amendment rights because their conduct was unreasonable

and/or arbitrary, deliberately indifferent and/or shocking to the conscience.” What

plaintiff’s counsel has submitted is the sort of unadorned “the-defendant-unlawfully-

harmed-me” accusation, which the supreme court has declared insufficient. Id. at

678.

Plaintiff’s claim under § 1983 for violation of his rights under the Fourteenth

Amendment is dismissed with leave to amend.

II. State Law Claims

Plaintiff brings state law tort claims for medical negligence, battery,

intentional infliction of emotional distress, negligent infliction of emotional distress,

and negligence. 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. The Court has admonished

plaintiff’s counsel about this before. Brown, 2022 WL 195644, at *4.

In consideration of the factors 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. Claim Three: Medical Negligence

Plaintiff alleges that “[t]he conduct of staff refusing to transport [plaintiff] to

the hospital for testing, imaging and medical and psychiatric treatment for seventy—

five days (75) or treat him in jail constituted medical negligence.” FAC ¶ 17.

To prevail on a medical negligence claim in Oregon, a plaintiff must establish

“(1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3)

a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a

causal link between the breach of duty and the harm.” Swanson v. Coos Cnty., 2009

WL 5149265, Civ. No. 08–6312–AA, at *5 (D. Or. 2009) (citing Stevens v. Bispham,

316 Or. 221 (1993)). In Oregon, the common-law standard has been codified to read

as follows: A physician licensed to practice medicine or podiatry by the Oregon

Medical Board has the duty to use that degree of care, skill and diligence that is used

by ordinarily careful physicians in the same or similar circumstances in the

community of the physician or a similar community. ORS 677.095(1).

Plaintiff fails to allege any facts specifying which staff refused to transport

plaintiff to the hospital. It is unclear which defendant plaintiff believes had a duty to

transport him for treatment, imaging, or psychiatric treatment, and even less clear

whether that conduct constitutes “medical negligence” under Oregon law. 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.

Plaintiff’s claim for medical negligence is dismissed with leave to amend.

B. Claim Four: Battery

Plaintiff alleges that “[t]he actions and/or inaction of deputies were

instrumental in effectuating detainee obtaining harmful and offensive contact and

hence constructive battery of plaintiff.” FAC ¶ 18.

To state a claim for battery under Oregon law, a plaintiff must allege that the

defendant acted with an intent to cause harmful or offensive contact. Allegations that

a defendant engaged in an intentional act likely to result in such contact are not

sufficient, and the ability of a court to infer subjective intent to cause harm is limited

to situations where such intent is the only inference that may be drawn from the

circumstances. Redman v. Morehead, No. 3:12-CV-11-AC, 2012 WL 1253108, at *3

(D. Or. Apr. 13, 2012); Bakker v. Baza'r, Inc., 275 Or. 245, 248–9 (1976); Friedrich v..

Adesman, 146 Or.App. 624, 630–1 (1997).

Plaintiff’s allegations are insufficient to state a claim for battery under Oregon

law. “Inaction” cannot constitute an intent to cause harmful or offensive contact.

There is no “constructive battery” under Oregon law. Therefore, plaintiff’s claim for

battery under Oregon law is dismissed with leave to amend.

C. Claim Five: Intentional Infliction of Emotional Distress

Plaintiff alleges that “[t]he ensuing battery caused severe mental or emotional

distress and that emotional distress was substantially certain to result from the

conduct, actions and inaction of staff and in fact caused severe mental and emotional

distress to him.” FAC ¶ 19.

Under Oregon law, 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))

Plaintiff’s allegations fail to state a claim for intentional infliction of emotional

distress. Plaintiff has failed to allege a single fact supporting an inference that any

defendant acted with intentional conduct when the passerby detainee struck plaintiff.

Accordingly, plaintiff’s claim for battery is dismissed with leave to amend.

D. Claim Six: Negligent Infliction of Emotional Distress

Plaintiff alleges, in the alternative to his IIED claim, that “deputy actions/ and

or inaction negligently caused severe mental and emotional distress to him and their

actions consisted of an extraordinary transgression of the bounds of socially tolerable

conduct.” FAC ¶ 20. Plaintiff appears to state the standard for intentional infliction

of emotional distress.

Oregon law allows a 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 (2016).

Freedom from physical harm is one such protected interest. Id. at 702.

Plaintiff has failed to allege any facts showing how any defendant negligently

caused foreseeable, serious emotional distress. Plaintiff alleges that it was the

passerby detainee who punched him. Plaintiff has not provided a short and plain

statement showing that it was foreseeable to any defendant that the offending

detainee would punch plaintiff. Plaintiff has failed to state a claim for negligent

infliction of emotional distress. This claim is dismissed with leave to amend.

E. Claim Seven: Negligence

Plaintiff alleges that “[t]he failure properly to house, classify and segregate

plaintiff from his drug-addled offender constituted negligence.”

To survive a motion to dismiss a claim of negligence, a plaintiff must allege: (1)

that 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

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

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

plaintiff's injury was within the general type of potential incidents and injuries that

made defendant's conduct negligent. Moody v. Or. Cmty. Credit Union, 371 Or. 772,

784, 542 P.3d 24 (2023).

. Plaintiff must allege facts that support his theory about which defendant’s

conduct caused a foreseeable risk of harm—here, the risk that the passerby detainee

would strike plaintiff. Plaintiff must plead factual allegations that show how being

struck was foreseeable, and how defendants’ breach of the duty of care caused

plaintiff to be struck by the other detainee. Plaintiff’s allegations fall short and do not

provide sufficient information from which the Court can infer that plaintiff is entitled

to relief under this claim. Accordingly, plaintiff’s claim for negligence is dismissed

with leave to amend.

CONCLUSION

Plaintiff’s IFP application, ECF No. 2, is GRANTED. Plaintiff’s First Amended

Complaint, ECF No. 5, is DISMISSED with leave to amend in accordance with

this opinion. Plaintiff shall have thirty (30) days to file an amended complaint.

Failure to file an amended complaint shall result in dismissal without further

notice. For each claim, plaintiff shall set forth a short and plain statement

alleging what rights he believes defendant(s) violated, which defendant(s)

violated the right, the specific conduct that caused the violation, and the resulting

harm from the violation.

It is so ORDERED and DATED this _2_6_t_h_ day of June 2025.

_/_s_/A__n_n_ _A_i_k_e_n___________

Ann Aiken

United States District Judge