Osborne v. Vincent

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JACK LEE OSBORNE, Case No. 1:24-cv-00768-MTK

Plaintiff, AMENDED OPINION

AND ORDER

v.

CAPT. VINCENT; DEPUTY FITTINGS;

DEPUTY WHITMORE; MEDICAL NURSE

ALMA,

Defendants.

___________________________________

KASUBHAI, District Judge.

Plaintiff, a self-represented adult in custody (AIC), filed suit under 42 U.S.C. § 1983 and

alleged that Josephine County Jail officials failed to provide adequate medical care for his

serious medical needs and threatened him with retaliation for filing grievances. Defendants now

move for summary judgment on all claims. For the following reasons, Defendants’ motion is

denied with respect to Plaintiff’s claim of retaliation and granted in all other respects.

BACKGROUND

From December 2023 to April 2024, Plaintiff was a pretrial detainee at the Josephine

County Jail. Shortly after his arrival, Plaintiff requested treatment for his chronic lymphocytic

leukemia. Fitting Decl. ¶¶ 5-6 & Ex. B (ECF No. 39). Plaintiff was diagnosed with lymphocytic

leukemia in 2018 and allegedly suffers from pain and neuropathy in his legs, arms, and neck.

Medical staff informed Plaintiff that they could not provide treatment for his illness until they

received Plaintiff’s recent medical records. Plaintiff continued to send numerous requests for

pain medication and other unspecified treatment. Id. Ex. B & Fitting Decl. Suppl. (ECF No. 44).

On January 8, 2024, Plaintiff filed Grievance No. 11832882 and complained that he had

not received medical care since his arrival and requested an appointment with a doctor. Id. ¶ 19

& Ex. D. On January 10, 2024, Plaintiff filed Grievance No. 11853766 and repeated his

complaints about the lack of medical treatment. Id. ¶ 21 & Ex. E.

On February 5, 2024, Deputy Fitting responded to Plaintiff’s grievances and explained

that medical providers had developed a treatment plan to address Plaintiff’s medical condition.

Fitting Decl. ¶ 23. Deputy Fitting thus determined that Plaintiff’s grievances were unfounded and

closed them. Id. ¶ 24 & Exs. D-E. Plaintiff did not appeal Deputy Fitting’s response.

On February 8, 2024, Plaintiff filed Grievance No.12034977 and again asserted that he

was receiving inadequate medical care. Id. ¶ 26 & Ex. F.

On March 1, 2024, Deputy Fitting responded to Plaintiff’s grievance and stated that, in

the seventy-four days Plaintiff had been detained at the Josephine County Jail, he was seen by

medical staff twelve times, prescribed medication, and received other treatment deemed

appropriate by his care team. Id. ¶¶ 28-29. Deputy Fitting determined that Plaintiff’s grievance

was unfounded and closed it.

On or about the same day, Deputy Fitting spoke to Plaintiff and informed him that further

grievances about his medical care would be deemed duplicative and would not be accepted. Id. ¶

30-31. Plaintiff claims that Deputy Fitting also threatened to place him in administrative

segregation if he filed further grievances. Pl.’s Response to Mot. Summ. J. at 3-4 (ECF No. 57);

Pl.’s Dep. at 53-57 (ECF No. 41-1). Plaintiff also alleges that Deputy Fitting repeated his threat

several days later, on or about March 8 and 12, after Plaintiff asked about his pending

grievances. Pl.’s Am. Compl. at 6-7 (ECF No. 17); Pl.’s Dep. at 59-60 64-65. Deputy Fitting

denies that he threatened Plaintiff or banned him from the grievance process. Fitting Decl. ¶¶ 37-

38, 49-50.

At some point, Plaintiff appealed Deputy Fitting’s March 1 response, and the reviewing

sergeant agreed with Deputy Fitting’s assessment. Id. ¶ 33-34. Plaintiff did not appeal the

sergeant’s response.

On March 13, 2024, Plaintiff filed Grievance No. 12251770 and requested a “copy of this

grievance that [I am] not allowed to respond to anymore per c/o Fittings statement to me.” Id. ¶

56 & Ex. L. Because Plaintiff submitted his grievances electronically, Deputy Fitting advised

him that paper copies were not available and closed the grievance. Plaintiff was not placed in

segregation for filing this grievance or for any other reason. Id. ¶ 57.

In April 2024, Plaintiff signed the initial Complaint in this action.

DISCUSSION

Plaintiff alleges that Deputy Fitting unlawfully retaliated against him for engaging in

protected conduct by barring Plaintiff from the grievance process and threatening him with

segregation if he continued to file grievances. Plaintiff further claims that Medical Technician

Alma Puga, jail medical staff, and Deputy Fitting failed to provide adequate medical treatment

by denying him pain medication and interfering with his medical care. Finally, Plaintiff contends

that Lieutenant Vincent1 and Deputy Whitmore, as the Jail Commander and Grievance

1 Plaintiff referred to Lieutenant Vincent as “Capt. Vincent” in the Amended Complaint.

Coordinator, should have intervened and prevented the alleged violations of Plaintiff’s rights.

See generally Pl.’s Am. Compl.

Defendants move for summary judgment on grounds that Plaintiff failed to exhaust his

administrative remedies and cannot succeed on the merits of his claims. To prevail on their

motion, Defendants must show there is no genuine dispute as to any material fact and they are

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (“If undisputed evidence

viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is

entitled to summary judgment under Rule 56.”). Defendants must present evidence of record,

together with affidavits, if any, that demonstrate the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323. If Defendants meet this burden, the burden shifts to Plaintiff to

demonstrate the existence of a genuine issue of fact for trial. Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); see Fed. R. Civ. P. 56(c)(1).

The Court must construe the evidence and all reasonable inferences in favor of Plaintiff,

the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986). The Court

“does not weigh the evidence or determine the truth of the matter, but only determines whether

there is a genuine issue for trial.” Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999).

“Where the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party, there is no genuine issue for trial.” Matsushita Elec, 475 U.S. at 587 (citation and

quotation marks omitted).

Because Plaintiff is self-presented, the Court construes his filings liberally and affords

him the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Lopez v. Dep't of

Health Servs., 939 F.2d 881, 882-83 (9th Cir. 1991). However, Plaintiff must still meet his

“obligation to show a genuine issue of material fact for trial through the presentation of specific,

admissible evidence.” Epling v. Komathy, 2011 WL 13142131, at *1 (C.D. Cal. Dec. 5, 2011).

A. Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act, an AIC must exhaust all available administrative

remedies before filing a federal action to redress prison conditions or incidents. See 42 U.S.C §

1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of

this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.”). The exhaustion

requirement is mandatory and requires compliance with both procedural and substantive

elements of the relevant grievance process. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006). An

AIC must exhaust all grievance remedies before filing a § 1983 action, including appealing

grievance decisions to the highest level. Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017).

If the defendant shows that the AIC did not exhaust available administrative remedies,

“the burden shifts to the prisoner to come forward with evidence showing that there is something

in his particular case that made the existing and generally available administrative remedies

effectively unavailable to him.” Albino, 747 F.3d at 1172; see also Ross v. Blake, 578 U.S. 632,

642 (2016) (“[A]n inmate is required to exhaust those, but only those, grievance procedures that

are ‘capable of use’ to obtain ‘some relief for the action complained of.’”) (citation omitted).

This burden is met when the AIC shows that he or she took “reasonable and appropriate steps” to

pursue administrative remedies, but prison officials nonetheless interfered with the AIC’s

attempts to exhaust or failed to follow correct grievance protocol. Nunez v. Duncan, 591 F.3d

1217, 1224 (9th Cir. 2010).

The Josephine County Jail has a three-step grievance process. Fitting Decl. ¶ 8 & Ex. C.

First, an AIC may electronically file a grievance through a kiosk located in each cell unit. Id. ¶ 9.

Generally, grievances must be submitted within seventy-two hours of the alleged incident,

although grievances about ongoing conditions may be filed at any time. Id. ¶ 10 & Ex. C. After a

grievance is filed, a jail official will investigate the complaint and provide a response. Id. ¶ 11 &

Ex. C. At the second step, the AIC may appeal the response to a sergeant if the AIC is

dissatisfied. Fitting Decl. ¶ 12 & Ex. C. Third and finally, the AIC may submit a final appeal to

the Jail Commander if the AIC remains dissatisfied with the sergeant’s response. Id. ¶¶ 13-14 &

Ex. C.

The record reflects that Plaintiff did not pursue his grievances about inadequate medical

care to final review with the Jail Commander and filed no grievances about Deputy Fitting’s

alleged threats. Id. Exs. D-F. Thus, Plaintiff did not fully exhaust his administrative remedies

before filing suit, and the burden shifts to Plaintiff to show that the grievance process was

effectively unavailable to him.

Plaintiff contends that he could not complete the grievance process for his claims because

Deputy Fitting barred him from utilizing the grievance process and threatened Plaintiff with

segregation if he attempted to do so. Pl’s Am. Compl. at 5-7; Pl.’s Response to Mot. Summ. J. at

3-4, 23-24; Pl.’s Dep. at 53-57. For the reasons explained below, whether Deputy Fitting barred

Plaintiff from the grievance process or threatened him with disciplinary segregation rests on

credibility determinations this Court cannot make at the summary judgment stage. See, e.g.,

Jones v. California Dep't of Corr., 584 Fed. App’x 496, 496 (9th Cir. Aug. 12, 2014) (finding

that dismissal on grounds of exhaustion was inappropriate when the plaintiff declared that he

filed the necessary grievances to exhaust his claim); Hubbard v. Houghland, 471 Fed. App’x

625, 626 (9th Cir. Mar. 7, 2012) (finding that the district court improperly made a credibility

determination on exhaustion without holding an evidentiary hearing).

If accepted as true, Plaintiff’s allegation that he was banned from the grievance process

under threat of discipline would excuse his failure to exhaust the jail’s grievance process, and

genuine issues of material fact preclude summary judgment on this ground.

B. First Amendment Retaliation

Plaintiff claims that Deputy Fitting violated his rights under the First Amendment by

barring him from the grievance process and threatening him with segregation if he filed

additional grievances.2

“The First Amendment guarantees a prisoner a right to seek redress of grievances from

prison authorities and as well as a right of meaningful access to the courts.” Jones v. Williams,

791 F.3d 1023, 1035 (9th Cir. 2015). Thus, retaliation against AICs for exercising their First

Amendment right to file grievances “is itself a constitutional violation, and prohibited as a matter

of ‘clearly established law.’” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). To state a

viable claim of First Amendment retaliation, Plaintiff must establish five basic elements: “(1) An

assertion that a state actor took some adverse action against an inmate (2) because of (3) that

2 Plaintiff also asserts that Deputy Fitting violated his due process rights by barring him

from the grievance process. However, Plaintiff cannot a sustain a due process claim on this

ground, because an AIC does not have a “constitutional entitlement to a specific prison grievance

procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Further, to the extent

Plaintiff’s claims of retaliation rest on Deputy Fitting’s grievance responses, the denial of a

grievance, standing alone, is not an adverse action sufficient to establish retaliation. See, e.g.,

Burgos v. Canino, 641 F. Supp. 2d 443, 454-55 (E.D. Pa.) (finding that the rejection or denial of

prison grievances does not constitute adverse action for purposes of a retaliation claim), aff’d,

358 Fed. App’x 302 (3d Cir. 2009); Colvin v. Horton, 2019 WL 3927425, at *12 (W.D. Mich.

Aug. 20, 2019) (holding that the failure to process a grievance is not adverse action); Garcia v.

Sleeley, 2019 WL 2234789, at *9 (S.D. Cal. May 22, 2019) (accord); Dicey v. Hanks, 2015 WL

4879627, at *5 (E.D. Cal. Aug. 14, 2015) (“[T]he denial of a grievance neither constitutes an

adverse action that is more than de minimis nor is it sufficient to deter a prisoner of ‘ordinary

firmness’ from further First Amendment activities”).

prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).

With respect to the fourth element, Plaintiff must show either a “chilling effect” or “some

other harm.” Brodheim, 584 F.3d at 1269. An “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 would chill or silence a person of ordinary firmness from future First

Amendment activities.” Id. at 1271 (quoting Rhodes, 408 F.3d at 568-69). While “the mere threat

of harm can be an adverse action” and “have a chilling effect,” the ultimate question is whether

the statements plausibly “intimated that some form of punishment or adverse regulatory action

would follow a failure to comply.” Brodheim, 584 F.3d at 1270.

1. March 1, 2024 Comments

Plaintiff alleges that on or about March 1, 2024, Deputy Fitting summoned Plaintiff and

told him that he was not allowed to file further grievances about his medical issues and that

Plaintiff could retain an attorney if he wanted to file suit. Am. Compl. at 5-6. Plaintiff also

claims that Deputy Fitting barred him from filing further grievances on any subject and

threatened to place him in administrative segregation – the 700 cell block or “the hole” – if he

did so. Pl.’s Am. Compl. at 5-7; Pl.’s Response to Mot. for Summ. J. at 3-4; Pl.’s Dep. at 53-57.

Deputy Fitting concedes that he spoke to Plaintiff on March 1, 2024 and advised Plaintiff

that “his repeated grievances regarding the same issue violated the Jail’s grievance procedure

rules and that no further grievances on the same issues that had already been grieved would be

accepted.” Fitting Decl. ¶¶ 30-31. However, Deputy Fitting contends that his comments

advanced legitimate correctional goals of preventing abuse of the grievance program and

ensuring compliance with grievance rules. Deputy Fitting emphasizes that Josephine County Jail

rules prohibit multiple grievances regarding the same subject in order to avoid repetitive

investigations that waste time and delay investigations of other grievance issues. Id. ¶¶ 15-16 &

Ex. C.

I agree that barring Plaintiff from filing repetitive grievances advanced legitimate

correctional goals pursuant to Josephine County’s grievance policy. However, as noted above,

Plaintiff also alleges that on March 1, 2024, Deputy Fitting banned him from filing any

grievances and threatened him with segregation if he did so. Deputy Fitting denies these

allegations and argues that Plaintiff’s Amended Complaint alleges only that Deputy Fitting told

Plaintiff “that he was no longer allowed to file any more grievances on my medical issue” and

does not allege that Deputy Fitting barred Plaintiff from the grievance process or threatened him

with segregation on March 1. See Am. Compl. at 5 (describing allegations against Deputy

Fitting). Deputy Fitting contends that Plaintiff is bound by the allegations in his Amended

Complaint and cannot now create a genuine issue of fact by arguing that Deputy Fitting banned

him from the grievance system entirely and threatened him with retaliatory segregation on March

1, 2024.

Given Plaintiff’s self-represented status and his previous filings, I find that Plaintiff is not

barred from alleging that Deputy Fitting prohibited him from filing further grievances and

threatened him with retaliation on March 1, 2024. Although not a model of clarity, Plaintiff’s

Amended Complaint alleges that on March 1, 2024, Deputy Fitting also stated that Plaintiff “was

barred from filing any more” grievances. See Am. Compl. at 6. In subsequent filings and during

his deposition, Plaintiff similarly alleged that Deputy Fitting barred him from the grievance

process on March 1, 2024 and threatened him with segregation if he filed additional grievances.

See Pl.’s Exs. & Decl. at 3-4 (ECF No. 30); Pl.’s Dep. at 54-56. Thus, Plaintiff’s response to

Defendants’ motion is consistent with his previous allegations and will not be stricken.

Ultimately, this Court must assess the parties’ credibility to determine whether Deputy

Fitting threatened Plaintiff with disciplinary segregation if he filed additional grievances, and the

Court cannot assess credibility on summary judgment. Anderson, 477 U.S. at 249 (explaining

that “at the summary judgment stage the judge’s function is not … to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue for trial”).

Construing all inferences in favor of Plaintiff, he raises a genuine issue of material fact as to

whether Deputy Fitting’s alleged statements on March 1, 2024 were sufficiently threatening to

constitute an adverse action that would chill a “person of ordinary firmness” from engaging in

protected conduct. Brodheim, 584 F.3d at 1274.

2. March 8 and 12, 2024 Comments

Plaintiff alleges that on or about March 8, 2024, he attempted to approach Deputy Fitting

in the jail dayroom to ask about his grievances. Pl.’s Dep. at 59. Deputy Fitting allegedly raised

his voice and told Plaintiff that he was “permanently” barred from the grievance system and

would be placed in the “700s” or “the hole” if he attempted to file additional grievances. Id. at

59-60; Am. Compl. at 6-7. Plaintiff also claims that on or about March 12, 2024, shortly after he

was moved to the 600 cell block, he asked whether Deputy Fitting intended to answer his recent

grievance. In response, Deputy Fitting raised his voice and asked, “Are you wanting to be moved

to the 700s Osborne?” Am. Compl. at 7; see also Pl.’s Dep. at 64-66.

Deputy Fitting argues that surveillance video and attendance records establish that he did

not interact with Plaintiff on March 8 or 12, 2024 and Plaintiff cannot sustain retaliation claims

arising from Deputy Fitting’s alleged threats on those dates. See Fitting Decl. ¶ 43 & Exs. G-K.

Specifically, video footage from March 8, 2024 shows that Deputy Fitting conducted a

walkthrough of Plaintiff’s cell unit at 1:32 p.m. without stopping at any cell or speaking to

Plaintiff. Fitting Decl. ¶ 46 & Ex. H, I. Jail records also establish that Plaintiff was moved to the

600 block on March 13, 2024 at 1:29 p.m. and not on March 12. Fitting Decl. ¶¶ 51-52 & Ex. J.

On March 13, 2024, Deputy Fitting was on duty from 6:00 a.m. to 8:30 a.m., when he left for a

medical appointment, and he could not have interacted with Plaintiff in the 600 cell block on that

date. Fitting Decl. ¶¶ 53-54 & Ex. K. Defendants maintain that this evidence conclusively

establishes that the conversations alleged by Plaintiff did not take place and Deputy Fitting did

not have threaten Plaintiff with sanctions for filing grievances.

As reflected in his Amended Complaint and deposition testimony, Plaintiff alleges that

his conversations with Deputy Fitting happened “on or about” March 8 and 12, 2024. Am.

Compl. at 7; Pl.’s Dep. at 62-63. During his deposition, Plaintiff explained, “I’m not positive that

it was that day [March 12]. I do believe I give a rough estimate because I was trying to keep a

view on those dates, but I couldn’t pinpoint the date exactly. I don’t know. Being in jail, in

prison, and stuff, a lot of the time, days get lost.” Pl.’s Dep. at 63. Plaintiff maintains that,

although he is unsure of the exact dates, the conversations with Deputy Fitting took place within

one or two days of the dates alleged.

Construing all inferences in favor of Plaintiff, his alleged interactions with Deputy Fitting

could have taken place within a few days of March 8 and 12, 2024, and Defendants present no

evidence indicating that Deputy Fitting did not interact with Plaintiff during that time.

Ultimately, Plaintiff and Deputy Fitting provide conflicting accounts of their interactions and on

what date they occurred, and questions of credibility and material fact preclude summary

judgment on Plaintiff’s claims of retaliation.

3. Qualified Immunity

Finally, Defendants argue that Deputy Fitting is entitled to qualified immunity, because a

reasonable officer in his position would not have known that his conduct violated a clearly

established constitutional right. See White v. Pauly, 580 U.S. 73, 78-79 (2017) (“Qualified

immunity attaches when an official’s conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”) (internal quotation

marks and citation omitted) (per curiam).

It was clearly established in March 2024 that prison officials may not threaten AICs with

adverse actions for filing grievances. See Shepard v. Quillen, 840 F.3d 686, 693-94 (9th Cir.

2016) (holding that “placing a prisoner in administrative segregation” in retaliation for filing

complaints violates clearly established law); Brodheim, 584 F.3d at 1266, 1270-72 (finding that

an officer’s note “warning” an AIC “to be careful what you write, req[u]est on [a grievance]

form” combined with a later recommendation to transfer the AIC constituted potential

retaliation); Bruce v. Ylst, 351 F.3d 1283, 1289-90 (9th Cir. 2003) (holding that officers may not

retaliate against an AIC for filing grievances). Construing the evidence in Plaintiff’s favor,

questions of fact remain as to whether Deputy Fitting threatened Plaintiff with segregation for

filing grievances, and summary judgment is not appropriate on grounds of qualified immunity.

C. Inadequate Medical Treatment

Plaintiff next alleges that Defendant Alma Puga, jail medical staff, and Deputy Fitting

were deliberately indifferent to his serious medical needs. As a pretrial detainee, Plaintiff’s

claims of inadequate medical treatment are properly addressed under the Fourteenth

Amendment. See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008) (explaining

that, under the Fourteenth Amendment’s Due Process Clause, pretrial detainees have a right

against jail conditions that “amount to punishment”).

An objective standard applies to claims of inadequate medical care brought under the

Fourteenth Amendment. Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018).

Under this standard, a pretrial detainee must show that:

(1) The defendant made an intentional decision with respect to the conditions

under which the plaintiff was confined [including a decision with respect to

medical treatment]; (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.

Sandoval v. Cnty. of San Diego, 985 F.3d 657, 669 (9th Cir. 2021) (citing Gordon, 888 F.3d at

1125). “To satisfy the third element, the plaintiff must show that the defendant’s actions were

‘objectively unreasonable,’ which requires a showing of ‘more than negligence but less than

subjective intent – something akin to reckless disregard.’” Id.

Plaintiff alleges that in January 2024, he asked Puga for pain medication as she walked

through his unit. Puga allegedly responded that she could not “give him anything” and asked if

Plaintiff was not given medication “on the outside,” why would he receive medication at the jail?

Am. Compl. at 7-8. Plaintiff concedes that Puga is a medical assistant, not a nurse, and that she is

not authorized to approve medications for AICs. Puga Decl. ¶¶ 1, 4-5, 9. Plaintiff instead takes

issue with the allegedly rude manner in which Puga denied his request. Pl.’s Dep. at 40. Even if

Plaintiff’s allegations are accepted as true, these facts do not plausibly suggest that Puga acted

with reckless disregard to a serious risk of harm.

Plaintiff also asserts that jail medical staff failed to adequately treat his symptoms and

provide pain relief. However, Plaintiff did not name a medical staff person as a defendant and he

cannot sustain a claim against Josephine County. A municipal entity, such as Josephine County,

cannot be held liable under § 1983 solely because it employs an alleged wrongdoer. Monell v.

Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 691 (1978). To state a claim against

Josephine County, Plaintiff must present evidence giving rise to a reasonable inference that (1)

the County had a policy, custom, or widespread practice that caused the violation of his

constitutional rights; (2) the County failed to properly train its officers and the failure to train

amounts to deliberate indifference; or (3) the individual who violated Plaintiff’s constitutional

rights had final policy-making authority Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 802-03

(9th Cir. 2018). Plaintiff presents no facts plausibly suggesting that Josephine County violated

his constitutional rights pursuant to an unconstitutional policy or custom, as the result of a failure

to train its officials, or by an official with final policy-making authority.

Finally, Plaintiff alleges that Deputy Fitting acted as a “gatekeeper” regarding his

medical care by denying his grievances and deeming them without merit. However, reviewing a

grievance “cannot create liability under § 1983” and Plaintiff presents no evidence that Deputy

Fitting was personally involved in his medical treatment. Ramirez, 334 F.3d at 860. Moreover,

the documents filed by Plaintiff reflect that medical providers responded to his complaints,

scheduled medical appointments, arranged for laboratory tests, and prescribed medication. See

Fitting Decl. Suppl.; Exhibits attached to Pl’s Response to Mot. Summ. J.; Pl.’s Exs. & Decl.

(ECF No. 30 at 47-59). Plaintiff’s dissatisfaction with his medical care implies negligence rather

than deliberate indifference, and negligent conduct cannot sustain a claim under § 1983.

Sandoval, 985 F.3d at 669, 682.

D. Supervisory Liability

Plaintiff alleges claims against Lieutenant Vincent, the Jail Commander, and Deputy

Whitmore, the jail’s Grievance Coordinator on grounds that they failed to adequately supervise

Deputy Fitting and enforce grievance protocol when he responded to Plaintiff’s grievances.

However, liability under § 1983 arises upon a showing of personal participation by each

Defendant, and a supervisor is not liable for the constitutional violations of employees unless the

supervisor “participated in or directed the violations, or knew of the violations and failed to act

to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff presents no

evidence that Lieutenant Vincent or Deputy Whitmore personally participated in the alleged

violations of his rights, and summary judgment is granted on these claims.

CONCLUSION

Defendants’ Motion for Summary Judgment (ECF No. 38) is GRANTED in part and

DENIED in part. Defendants’ Motion is GRANTED with respect to Plaintiff’s claims against

Defendants Puga, Vincent, and Whitmore, and Plaintiff’s claims against Deputy Fitting arising

from his review of Plaintiff’s grievances. Defendants’ Motion is DENIED with respect to

Plaintiff’s claim of retaliation against Deputy Fitting arising from his alleged threat to discipline

Plaintiff for utilizing the grievance process.

Within thirty days from the date of this Order, the parties shall confer and file a status

report indicating whether they wish to pursue mediation or proceed to trial.

IT IS SO ORDERED.

DATED this 11th day of August 2025.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States District Judge