The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID BOYLEN MANLEY,
Case No. 6:23-cv-01680-JR
Plaintiff,
FINDINGS AND RECOMMENDATION
v.
DR. THOMAS L. BRISTOL, MD; DR.
BENJAMIN SMITH, MD; DR. WARREN
G. ROBERTS, MD; TRACY BATCHELDER;
and JOHN/JANE DOE(S), all in their individual
and official capacities,
Defendants.
RUSSO, Magistrate Judge
Plaintiff, an adult in custody at the Oregon State Penitentiary, brings this 42 U.S.C. §
1983 civil rights action as a self-represented litigant. Currently before the Court is defendants’
Motion to Dismiss Plaintiff’s Amended Complaint (ECF No. 19). For the reasons that follow,
defendants’ motion should be DENIED.
BACKGROUND
Plaintiff filed this action on November 11, 2023, with a Complaint that was signed on
November 9, 2023. This Court conducted the screening required under the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. § 1915A(b), and on January 26, 2024, issued an Order to
Amend finding that plaintiff’s Complaint did not state a claim upon which relief may be granted
under § 1983, advising plaintiff of the deficiencies of his Complaint, and requiring him to file an
Amended Complaint curing those deficiencies. Plaintiff timely filed his Amended Complaint,
which the Court again screened as required under the PLRA, and on February 28, 2024, the
Court issued a Notice of Lawsuit and Request for Waiver of Service of Summons (ECF No. 5) in
which the Court concluded that plaintiff “has a reasonable opportunity to prevail on one or more
claims and Defendants must therefore file an Answer or other responsive pleading.” See 42
U.S.C. § 1997e(g)(2) (under the PLRA, “[t]he court may require any defendant to reply to a
complaint brought under this section if it finds that the plaintiff has a reasonable opportunity to
prevail on the merits”).
Plaintiff’s Amended Complaint alleges three claims of denial of medical care in violation
of his right to be free from cruel and unusual punishment under the Eighth Amendment. As an
initial matter, plaintiff alleges he has been diagnosed with the medical conditions of Type II
diabetes requiring insulin, sensorimotor neuropathy likely as a result of diabetes, ankylosing
spondylitis, meralgia paresthetica, adrenal insufficiency, anemia, essential hypertension, uveitis,
glaucoma, cataracts, gastroesophageal reflux disease, dyslipidemia, and dyspnea on exertion.
In his first claim for relief, plaintiff alleges he suffers from physical pain and numbness
from musculoskeletal injuries and nerve damages dating back to December 2021 when he was
diagnosed with C1-C2 epidural abscess and C1-C6 prevertebral abscess. He alleges that despite
various recommendations from outside medical providers, and continual written communications
from plaintiff reporting severe pain in his neck, lower back, and upper extremities, defendants
Smith, Roberts, and Bristol refused to provide the recommended treatment.
Plaintiff’s second claim alleges he suffers vision loss and eye pain related to glaucoma
and cataracts. He alleges that, again despite recommendations from outside medical providers
that it is medically necessary for plaintiff to be evaluated by an endocrinologist or face additional
avoidable eye pain and permanent vision loss, defendants Bristol, Smith, and Roberts
deliberately refused to provide the recommended medical care. Plaintiff also alleges that
defendants Batchelder and Does received numerous communications advising them of plaintiff’s
urgent need for eye surgery, but that they delayed scheduling appointments and cancelled
appointments once made in order to deliberately further delay plaintiff’s medical treatment for
his eye conditions. The time span pertaining to plaintiff’s second claim runs from November 23,
2021, through October 31, 2023.
Plaintiff’s third claim alleges he suffers from chronic and severe diarrhea. He alleges,
inter alia, that in April 2023 an outside medical provider (rheumatologist) ordered plaintiff to be
evaluated by an endocrinologist and ordered plaintiff to immediately begin a course of daily
psyllium fiber. In August 2023, when plaintiff was seen by defendant Smith and asked when he
would receive the ordered medication for his chronic and severe diarrhea, Smith informed
plaintiff that Smith did not care about that condition, and plaintiff has not received the
recommended medical care.
By way of remedy, plaintiff seeks money damages against defendants, which he
specifically notes are against defendants in their individual, not official, capacities. Plaintiff also
seeks injunctive relief requiring defendants to provide reasonable and necessary medical care for
the three conditions described in plaintiff’s Amended Complaint.
Defendants move to dismiss plaintiff’s Amended Complaint on several grounds. First,
they contend that to the extent plaintiff sues the individual defendants in their official capacity,
the suit is barred by the Eleventh Amendment. Second, they argue plaintiff fails to allege facts
establishing a claim for deliberate indifference of a serious medical need. Third, defendants
argue plaintiff’s claims are barred by the statute of limitations. Finally, fourth and fifth, they
contend plaintiff is not entitled to injunctive or declaratory relief. Plaintiff submitted a thorough
response to defendants’ motion addressing each argument, and in reply defendants did not
address plaintiff’s arguments but instead elected to rest on the points and authorities submitted in
support of their motion.
LEGAL STANDARDS
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court
must dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint
must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint
is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v.
Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to
nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not
entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009). Rather, to state a
plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts”
to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See,
e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs
the pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v.
Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se plaintiff's claims may nonetheless be
dismissed with prejudice where it appears beyond doubt the plaintiff can prove no set of facts
that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061–62 (9th Cir.
2008).
DISCUSSION
I. Official Capacity Claims
Defendants move to dismiss plaintiff’s Amended Complaint “to the extent it is against
the [individual] defendants in their official capacity.” Defendants are correct that the Eleventh
Amendment bars an action for damages when state officials are sued in their official capacity,
because a judgment against a public servant “in his official capacity” imposes liability on the
entity that he represents. Cory v. White, 457 U.S. 85, 90 (1982); Edelman v. Jordan, 415 U.S.
651, 663 (1974); Brandon v. Holt, 469 U.S. 464, 471 (1985). As noted by the Court above,
however, and as plaintiff addressed in his response to defendants’ motion to dismiss, plaintiff
specifically qualifies that his claims for damages against the defendants are in their individual,
not official, capacities. It is only injunctive relief which plaintiff seeks against defendants in
their official capacities, which is clearly not precluded by the Eleventh Amendment. See Doe v.
Lawrence Livermore Nat. Laboratory, 131 F.3d 836, 839 (9th Cir. 1997) (“[A] suit for
prospective injunctive relief provides a narrow, but well-established, exception to Eleventh
Amendment immunity”) (citing Ex parte Young, 209 U.S. 123 (1908); Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 70 (1989)). Accordingly, this portion of defendants’ motion is not
well taken.
II. Individual Capacity Claims
Defendants next move to dismiss plaintiff’s Amended Complaint on the basis that he
does not allege facts establishing a claim for denial of medical care against the defendants in
their individual capacities. They contend that, at most, plaintiff’s allegations may be construed
as suggesting negligence, which cannot sustain an Eighth Amendment claim.
In order to state a claim under the Eighth Amendment regarding medical care, a plaintiff
must allege and prove that he suffered a sufficiently serious deprivation (the objective prong of
the claim) and that officials acted with deliberate indifference in allowing or causing the
deprivation to occur (the subjective prong of the claim). Wilson v. Seiter, 501 U.S. 294, 298-99
(1991). Thus, when a prisoner's Eighth Amendment claim arises in the context of medical care,
the prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
A viable Eighth Amendment medical claim states two elements: “the seriousness of the
prisoner's medical need and the nature of the defendant's response to that need.” 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) (en banc). A medical need is serious “if the failure to treat
the prisoner's condition could result in further significant injury or the ‘unnecessary and wanton
infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications
of a serious medical need include “the presence of a medical condition that significantly affects
an individual's daily activities.” Id. at 1059-60. By establishing the existence of a serious
medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment
violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). If a prisoner establishes the existence
of a serious medical need, he must then show that prison officials responded to it with deliberate
indifference. Farmer, 511 U.S. at 834. In general, a prisoner may show deliberate indifference
with evidence that officials denied, delayed, or intentionally interfered with medical treatment, or
he may show it by the way in which prison officials actively provided medical care. Hutchinson
v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).
“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,
1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the
facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but
that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If
a prison official should have been aware of the risk, but was not, then the official has not violated
the Eighth Amendment, no matter how severe the risk.’” Id. (quotation omitted). “A showing of
medical malpractice or negligence is insufficient to establish a constitutional deprivation under
the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a
constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).
“A difference of opinion between a prisoner-patient and prison medical authorities regarding
treatment does not give rise to a § 1983 claim.” Franklin, 662 F.2d at 1344 (internal citation
omitted). To prevail, a plaintiff “must show that the course of treatment the doctors chose was
medically unacceptable under the circumstances . . . and . . . that they chose this course in
conscious disregard of an excessive risk to plaintiff's health.” Jackson v. McIntosh, 90 F.3d 330,
332 (9th Cir. 1996) (internal citations omitted).
Plaintiff states an Eighth Amendment claim against the defendants. Plaintiff plausibly
alleges facts establishing a serious medical need with respect to each of his three claims for
relief. Plaintiff also plausibly alleges facts establishing that, despite numerous recommendations
and orders from outside medical providers, and despite plaintiff’s extensive written
communications to defendants concerning his medical needs, defendants deliberately failed to
perform substantive direct or indirect actions to ensure plaintiff received necessary and timely
medical treatment for his conditions. Plaintiff plausibly alleges that the continued denial of
treatment and outright refusal to address plaintiff’s conditions resulted in further deterioration of
those conditions. Accordingly, plaintiff alleges plausible Eighth Amendment claims against
defendants, particularly in light of the Court’s requirement to hold pro se pleadings to a less
stringent standard and to liberally construe the Amended Complaint in favor of the plaintiff.
III. Statute of Limitations
Defendants next contend that plaintiff’s factual allegations of events which occurred
more than to two years before the operative filing date(s) of plaintiff’s original Complaint and
Amended Complaint are barred by the statute of limitations. They do so generally, without
addressing the specifics of plaintiff’s factual allegations of the timeline of events described by
him but instead simply noting that he makes allegations dating back to December 2020.
It is well established that § 1983 claims are subject to a two-year statute of limitations in
Oregon. Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2004). Plaintiff counters
defendants’ argument, however, by noting that the Prison Litigation Reform Act forbids a
prisoner from bringing an action “with respect to prison conditions under section 1983” until he
has exhausted his “available” administrative remedies, and that the statute of limitations is tolled
while the inmate engages in that process. See 42 U.S.C. § 1977e(a); Brown v. Valoff, 422 F.3d
926, 942-43 (9th Cir. 2005) (“We do not regard the intersection of the exhaustion and statute of
limitations requirements as creating a problem for prisoners, however, as we agree with the
uniform holdings of the circuits that have considered the question that the applicable statute of
limitations must be tolled while a prisoner completes the mandatory exhaustion process”)
(citations omitted). Because his Amended Complaint alleges full exhaustion of remedies, and
because defendants have not in their motion shown which facts, if any, fall outside the two-year
limitation period once tolling for exhaustion of remedies has been accounted for, plaintiff argues
defendants have not met their burden to establish dismissal of any of his claims at this juncture.
The Court agrees with plaintiff. On the record currently before the court, defendants
have not met the burden of establishing which, if any, of plaintiff’s claims fall outside the
limitation period because it is not possible to ascertain what affect the tolling period for
exhaustion of administrative remedies has on plaintiff’s claims. See Schroeder v. University of
Oregon, No. 6:23-cv-01556-MC, 2025 WL 1019760, at *13 (D. Or. April 4, 2025) (in
addressing a facial attack under the Rule 12(b)(6) standard, “[t]he Court may dismiss claims on
statute of limitations grounds ‘only when ‘the running of the statute is apparent on the face of the
complaint.’”) (quoting United States v. Page, 116 F.4th 822, 829 (9th Cir. 2004)).1 Accordingly,
defendants’ motion to dismiss any of plaintiff’s claims based upon the statute of limitations
should be denied.
IV. Injunctive Relief
Defendants also move to dismiss plaintiff’s claims for injunctive relief. They argue
plaintiff cannot show a likelihood of success on the merits, and that because plaintiff has
available to him other legal remedies in the form of the administrative grievance process and a
state habeas corpus proceeding challenging the conditions of his confinement. Plaintiff has
requested injunctive relief in his Amended Complaint, but as he notes in his response to
defendants’ motion to dismiss, he is not seeking such relief through either a motion for
preliminary injunction or a temporary restraining order. Defendants provide no authority that
would authorize the Court to dismiss Plaintiff’s claim for injunctive relief at this time. Though it
may be appropriate at a later stage of the litigation to deny plaintiff’s requests for injunctive
1 The burden shifts to the opposing party once the moving party converts the motion to dismiss
into a factual motion by presenting affidavits or other evidence properly brought before the
court. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Such is not the case
here, as defendants’ motion is based solely on the record.
relief, it is not clear that the Court can reach this decision on a motion to dismiss. See Friends of
Frederick Seig Grove #94 v. Sonoma Cnty. Water Agency, 124 F.Supp.2d 1161, 1172 (N.D. Cal.
2000) (denying motion to dismiss claim for injunctive relief as premature, after explaining that
“[w]hile the Court may ultimately agree with the defendants that injunctive relief is
inappropriate, it is by no means evident that the Court can reach such a determination on a
motion to dismiss.”). Accordingly, defendants’ motion to dismiss plaintiff’s request for
injunctive relief should be denied.
V. Declaratory Relief
Finally, defendants contend plaintiff’s Amended Complaint is devoid of any facts
showing that plaintiff is entitled to declaratory relief. Upon careful review of plaintiff’s
Amended Complaint, however, he does not specifically seek such relief; plaintiff asks only for
money damages, injunctive relief, costs and disbursements, attorney fees, and “such other relief
as it may appear plaintiff is entitled.” In any event, defendants’ motion to dismiss a claim for
declaratory relief is premature, as the Court has found plaintiff states a claim for relief and such a
determination on declaratory relief would be premature. See Zepeda v. Tate, No. CV 1:07-
0982-SMM,, 2010 WL 4977596, at *6 (E.D. Cal. Dec. 2, 2010) (denying motion to dismiss
claim for declaratory relief as premature where court had previously concluded plaintiff stated a
claim upon which relief may be granted).
RECOMMENDATION
For the foregoing reasons, defendants’ Motion to Dismiss for Failure to State a Claim
(ECF No. 19) should be DENIED and this action should proceed on plaintiff’s Amended
Complaint.
This recommendation is not an order that is immediately appealable to the Ninth Circuit
Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the district court's judgement or appealable order.
The parties shall have fourteen (14) days from the date of service of a copy of this
recommendation within which to file specific written objections with the court. Thereafter, the
parties shall have fourteen (14) days within which to file a response to the objections. Failure to
timely file objections to any factual determination of the Magistrate Judge will be considered as
a waiver of the party's right to de novo consideration of the factual issues and will constitute a
waiver of a party's right to appellate review of the findings of the fact in an order or judgement
entered pursuant to this recommendation.
DATED: June 6, 2025
/s/ Jolie A. Rus so
Jolie A. Russo
United States Magistrate Judge