Pooler

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DANOVAN MAURICE POOLER,

Case No. 3:24-cv-01715-AB

Plaintiff,

OPINION & ORDER

v.

CITY OF PORTLAND and

ABBAS MIRE,

Defendants.

Juan C. Chavez

PO Box 5248

Portland, OR 97208

Attorney for Plaintiff

Elizabeth C. Woodard

City of Portland, Office of the City Attorney

1221 SW 4th Avenue, Ste 430

Portland, OR 97204

Attorney for Defendants

BAGGIO, District Judge:

Plaintiff Danovan Maurice Pooler brings this case against Defendants City of Portland

and Portland Police Officer Abbas Mire. Plaintiff brings two claims under 42 U.S.C. § 1983 for

violations of his Fourteenth Amendment rights and two tort claims under Oregon law—

negligence and intentional infliction of emotional distress (“IIED”). Am. Compl. ¶¶ 58–81, ECF

No. 35. Defendants move to dismiss, for a second time,1 Plaintiff’s claims under Federal Rule of

Civil Procedure 12(b)(6). Defs.’ Mot. Dismiss (“Defs.’ Mot.”) 1–2, ECF No. 36. For the reasons

explained below, the Court denies Defendants’ Motion.

BACKGROUND

On May 24, 2024, Plaintiff was admitted to Oregon Health & Science University

(“OHSU”) for “surgery to treat a gunshot wound to his lower left back.” Am. Compl. ¶ 8. After

surgery, Plaintiff “had a surgical wound from about the bottom of his sternum to below his belly

button” and “had internal [stitches] and staples on the outside.” Id. ¶ 10. Plaintiff’s condition

post-operation made movement difficult, and Plaintiff received assistance from nursing staff to

walk to the bathroom. Id. ¶ 11. After Plaintiff’s operation, “OHSU had been administering anti-

constipation medication.” Id. ¶ 12.

Plaintiff remained at OHSU from May 24, 2024, through June 2, 2024. Id. ¶ 9. While

recovering from his injury and subsequent surgery, “Plaintiff was held in custody at OHSU on an

outstanding parole warrant.” Id. ¶ 13. On June 2, 2024, “Plaintiff was medically cleared for

discharge from OHSU.” Id. ¶ 14. Defendant Mire “was assigned to guard Plaintiff at OHSU” that

day, and was also “responsible for transporting Plaintiff from OHSU to the Multnomah County

1 The Court dismissed Plaintiff’s original Complaint, with leave to amend, for failure to

state claims under the First, Fifth, Eighth, and Fourteenth Amendments. See Opinion & Order

(“O&O”), ECF No. 22.

Detention Center (“MCDC”) following his discharge.” Id. ¶¶ 15–16. Plaintiff alleges that,

“[p]rior to being watched by Defendant Mire, [Plaintiff] had been watched over by other PPB

officers” and “[t]hose officers acted reasonably and allowed [Plaintiff] to go to the bathroom

when needed and access nursing staff unimpeded.” Id. ¶ 17. Because Plaintiff was “handcuffed

to the hospital bed[,]” Plaintiff would need to be uncuffed and escorted to use the restroom

facilities. Id. ¶ 21.

From roughly 7:30 am to 11:00 am, and while Defendant Mire was assigned to guard

Plaintiff at OHSU, Plaintiff “repeatedly requested to use the restroom for a bowel movement.”

Id. ¶¶ 18–19. Defendant Mire “refused to allow [Plaintiff] to use the restroom on multiple

occasions during this approximately 3.5-hour period.” Id. ¶ 20. Plaintiff then “used the

emergency nurse request button on his bed.” Id. ¶ 22. “The nurse arrived and tried to convince

Defendant Mire to uncuff [Plaintiff] so he could go to the bathroom[,]” and “Defendant Mire

refused.” Id. Plaintiff alleges that “[t]he nurse felt she had no other options left, and told

[Plaintiff] that she would try to return later and try to convince Defendant Mire to relent.” Id.

Plaintiff then “defecated on himself in his bed because Defendant Mire refused to uncuff him,

requiring the nurses to return and clean him up.” Id. ¶ 23. After defecating on himself, Plaintiff

also alleges that Defendant Mire refused his nursing staff’s request to uncuff Plaintiff so he could

use the restroom “to shower or clean his surgical wound.” Id. ¶¶ 27–28. Plaintiff alleges that this

was a “humiliating and degrading” experience for him and that he “suffered physical discomfort

[and] abdominal pain” because of being denied restroom access for roughly three and a half

hours. Id. ¶¶ 24–25. He also alleges having to “refuse his morning meal because of this stomach

discomfort.” Id.

“When it was time to transport Plaintiff from OHSU, Defendant Mire ordered Plaintiff to

get out of the hospital bed.” Id. ¶ 30. Before leaving OHSU, Plaintiff had to use the restroom

again, and “[Plaintiff] and the nurses requested that Defendant Mire allow [Plaintiff] to go to the

bathroom. Defendant Mire told them that ‘there was no time.’” Id. ¶ 32. Defendant Mire then

“required Plaintiff to get out of bed without any assistance despite [Plaintiff’s] recent surgery and

compromised physical condition.” Id. ¶ 35. While leaving OHSU, Plaintiff “was only dressed in

a hospital gown, which was loosely tied in the back, and sheer hospital underwear.” Id. ¶ 34.

Plaintiff was not wearing any socks, sandals, or shoes. Id. While walking to the exit, Plaintiff

“could feel the pain of his surgical wound” and could feel the wound “rip and tear around the

belly button.” Id. ¶¶ 38–39. Plaintiff alleges that “[a] nurse and a passing doctor clearly

recognized that [Plaintiff] was in pain and distress” and “stopped to address Defendant Mire in

an attempt to convince him into letting [Plaintiff] get a wheelchair or, at minimum, gripped

socks.” Id. ¶ 40. Plaintiff alleges that Defendant Mire refused to allow these accommodations for

Plaintiff. Id. The same OHSU doctor and one nurse continued to walk with Plaintiff and

Defendant Mire as they were exiting OHSU, “all the while pleading with [Defendant] Mire.” Id.

¶ 41.

When Plaintiff exited OHSU, there were no officers or vehicles to pick him up. Id. ¶ 42.

Instead, Defendant Mire told Plaintiff that “he would have to walk across the gravelly parking lot

and across the street outside OHSU to get to [Defendant Mire’s] police vehicle.” Id. Plaintiff

alleges that “[a]fter everything he had already endured, being now forced to walk across the

parking lot in the state he was in finally broke [Plaintiff, and h]e began to cry.” Id. ¶ 43. The

nurse who had been following “ran inside to get [Plaintiff] a wheelchair[,]” but Defendant Mire

“took this as an opportunity to rush [Plaintiff] through the parking lot without interference from

OHSU medical staff.” Id. ¶ 44. Plaintiff alleges that he had to walk barefoot and handcuffed

across a gravelly parking lot, in his medical gown, and in the rain. Id. ¶¶ 36, 45–47. While

walking across gravel, Plaintiff “stepp[ed] on a particularly sharp rock” and “[felt] the skin break

on his heel.” Id. ¶ 47. Plaintiff alleges that “[t]he shock of the pain caused him to move

suddenly[,]” and shortly after “[h]e could feel his surgical wound tear at around the belly button

region.” Id. “A passerby in a black vehicle stopped his vehicle to ask [Plaintiff] if he was

okay[, and] Defendant Mire told the driver to move along.” Id. ¶ 48.

When Plaintiff reached Defendant Mire’s vehicle, “Defendant Mire made [Plaintiff] enter

the vehicle without assistance.” Id. ¶ 49. Plaintiff, “still handcuffed, barefoot, wearing only a

hospital gown, and suffering from his recent surgery[,]” had to lift himself up into an “elevated

SUV” and consequently “felt pain in and around his belly button but could not assess the extent

of the injury.” Id. ¶¶ 49–50. While in Defendant Mire’s vehicle, Plaintiff defecated on himself

again. Id. ¶ 52.

On arrival to MCDC, Plaintiff “exit[ed] the vehicle without assistance[, which] caused

further pain and bleeding from [Plaintiff’s] surgical wound.” Id. ¶ 53. Although having defecated

on himself while in Defendant Mire’s vehicle, Plaintiff “was not given a shower for some

hours.” Id. ¶ 54. When he was finally able to go to the bathroom, he inspected his wounds and

“saw blood all over his abdominal region and on his heel as a result of stepping on the rock in the

parking lot.” Id. ¶ 55. Plaintiff “was forced to clean his blood and feces himself.” Id.

STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the

sufficiency of a complaint’s factual allegations, the court must accept all material facts alleged in

the complaint as true and construe them in the light most favorable to the non-moving party.

Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).

To survive a motion to dismiss, a complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-

pleaded facts” that “permit the court to infer more than the mere possibility of misconduct . . . .”

Id. at 679. A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the

“grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action . . . .” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007).

DISCUSSION

Defendants move to dismiss Plaintiff’s § 1983 claims alleging violations of his

Fourteenth Amendment rights “because [Defendants] did not deprive [P]laintiff of a protected

interest when [Defendant] Mire transported him” to MCDC. Defs.’ Mot. 1. Defendants also

move to dismiss Plaintiff’s tort claims.2 Id. at 2. Defendants also seek to incorporate by reference

various documents, some of which the Court incorporated in addressing Defendants’ prior

Motion to Dismiss. Id. at 3; O&O 2 n.1. The Court first denies Defendants’ request to

2 While Defendants initially argue that “[P]laintiff fails to state a claim for negligence[,]”

Defs.’ Mot. 2, Defendants do not explain why. In their reply brief, however, Defendants argue,

“Plaintiff properly construed Defendants’ Motion; [D]efendants agree [P]laintiff states a prima

facie case of negligence.” Defs.’ Reply 7, ECF No. 44. Defendants’ remaining argument for

dismissing Plaintiff’s negligence claim is that it is based on the same set of facts as his § 1983

claims and IIED claim. Defs.’ Mot. 11–12.

incorporate by reference various documents and then denies the remainder of Defendants’

Motion.

I. Incorporation by Reference

Defendants ask the Court to allow the incorporation by reference of “documents

previously attached and discussed in Defendants’ First Motion to Dismiss.” Defs.’ Mot. 3; see

also First Woodard Decl. Ex. 1 (police report), ECF No. 13-1; First Woodard Decl. Ex. 2

(Measure 11 Secret Indictment), ECF No. 13-2. Defendants also ask the Court to incorporate

Plaintiff’s MCDC Intake Records. Defs.’ Mot. 3; see also Second Woodard Decl. Ex. 1

(Plaintiff’s MCDC intake record), ECF No. 37-1. The Court denies Defendants’ request to

incorporate by reference the cited documents.

When ruling on a Rule 12(b)(6) motion, a court may consider certain documents that are

not attached to the complaint as part of the pleading “if the plaintiff refers extensively to the

document or the document forms the basis of the plaintiff’s claim.” United States v. Ritchie, 342

F.3d 903, 908 (9th Cir. 2003); see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002

(9th Cir. 2018) (“[I]ncorporation-by-reference . . . treats certain documents as though they are

part of the complaint itself.”). This doctrine “prevents plaintiffs from selecting only portions of

documents that support their claims, while omitting portions of those very documents that

weaken—or doom—their claims.” Khoja, 899 F.3d at 1002. A court, however, may not consider

documents which merely support a defense; “[o]therwise, defendants could use the doctrine to

insert their own version of events into the complaint to defeat otherwise cognizable claims.” Id.

Here, Plaintiff’s Amended Complaint never refers to the documents Defendants seek to

incorporate by reference. The Court also does not find that these documents form the basis of

Plaintiff’s claims. For these reasons, the Court declines to incorporate by reference Defendants’

cited documents.

II. Fourteenth Amendment

Defendants argue that Plaintiff fails to state a Fourteenth Amendment claim under either

of his two theories (deliberate indifference and pre-trial punishment). Defs.’ Mot. 5–8. Even if

Plaintiff states a claim under either of his two theories, Defendants also argue that Defendant

Mire is entitled to qualified immunity. Id. at 8–10. Plaintiff argues that he states a claim. Pl.’s

Opp’n 15–20, ECF No. 42. He also argues that Defendant Mire is not entitled to qualified

immunity. Id. at 21–23. The Court declines to find that Defendant Mire is entitled to qualified

immunity at this stage of the litigation, but the Court does find that Plaintiff sufficiently alleges

his § 1983 claims.

A. Qualified Immunity

Defendants argue that Defendant Mire is entitled to qualified immunity.3 Defs.’ Mot. 8–

10. The Court finds that Plaintiff’s Amended Complaint contains sufficient allegations of a

harmful act that would violate a clearly established constitutional right. Therefore, the Court

does not find that Defendant Mire is entitled to qualified immunity at this stage of the litigation.

The Ninth Circuit has emphasized that qualified immunity is not generally resolved on a

motion to dismiss. See Keates v. Koile, 883 F.3d 1228, 1234, 1243 (9th Cir. 2018) (reversing the

district court’s dismissal of the plaintiffs’ claim on the basis of qualified immunity and noting

3 Defendants also appear argue on the first time in their reply brief that Defendant Mire is

entitled to discretionary immunity. Defs.’ Reply 6. The Court considers Defendants’ mention of

discretionary immunity to be an error because, while the heading of the argument says, “Officer

Mire is entitled to discretionary immunity[,]” Defendants’ argument appears to be an argument

about qualified immunity. See id. To the extent that Defendants also argue that Defendant Mire

is entitled to discretionary immunity for the first time on reply, the Court declines to address that

issue.

that “[d]etermining claims of qualified immunity at the motion-to-dismiss stage raises special

problems for legal decision making”). In deciding whether to address the issue of qualified

immunity on a motion to dismiss, “[i]f the operative complaint ‘contains even one allegation of a

harmful act that would constitute a violation of a clearly established constitutional right,’ then

plaintiffs are ‘entitled to go forward’ with their claims.” Id. at 1235 (quoting Pelletier v. Fed.

Home Loan Bank of San Francisco, 968 F.2d 865, 872 (9th Cir. 1992)).

Here, Plaintiff alleges that Defendant Mire engaged in the following conduct: refusing to

allow Plaintiff to use the bathroom on several occasions, Am. Compl. ¶¶ 21–22, 32; refusing to

allow Plaintiff to clean himself “for some hours” after defecating on himself, id. ¶¶ 27–28, 54;

refusing to allow Plaintiff to use a wheelchair or wear gripped socks, id. ¶ 40; making Plaintiff

“walk across the gravelly parking lot and across the street outside OHSU to get to Defendant’s

police vehicle[,]” id. ¶ 42; and making Plaintiff get in and out of an “elevated SUV” without

assistance, resulting in further damage to his surgical wound, id. ¶¶ 49–50, 53. Plaintiff also cites

caselaw explaining that the law was clearly established at the time of Defendant Mire’s conduct

that the denial of bathroom access violates an inmate’s Eighth Amendment rights. See Johnson v.

Lewis, 217 F.3d 726, 732 (9th Cir. 2000) (“[Inmate plaintiffs] also testified that they did not

receive adequate access to toilets to avoid soiling themselves, and they were not allowed to clean

themselves thereafter. If believed, this evidence would establish deprivations sufficiently serious

to satisfy the objective component of an Eighth Amendment claim.”). Because “pretrial

detainees, who have not been convicted of any crimes, retain at least those constitutional rights

that [the Supreme Court has] held are enjoyed by convicted prisoners[,]” Bell v. Wolfish, 441

U.S. 520, 545 (1979), and because the Court finds that Plaintiff’s Amended Complaint contains

at least one allegation of a harmful act that would violate a clearly established constitutional

right, the Court declines to find that Defendant Mire is entitled to qualified immunity at the

motion-to-dismiss stage of this litigation.

B. Deliberate Indifference

Defendants argue that Plaintiff fails to state his deliberate indifference claim. Defs.’ Mot.

5–7. Plaintiff argues that Defendants were deliberately indifferent in (1) ignoring Plaintiff’s post-

operative pain, (2) denying Plaintiff bathroom access, and (3) requiring Plaintiff to walk in a

hospital gown to Defendant Mire’s police vehicle. Pl.’s Opp’n 17–19. The Court finds that

Plaintiff sufficiently pleads his deliberate indifference theory of liability.

“Inmates who sue prison officials for injuries suffered while in custody may do so under

the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet convicted, under

the Fourteenth Amendment’s Due Process Clause.” Castro v. Cnty. of Los Angeles, 833 F.3d

1060, 1067–68 (9th Cir. 2016) (en banc). “Under both clauses, the plaintiff must show that the

prison officials acted with ‘deliberate indifference.’” Id. at 1068. “[I]n the context of claims of

inadequate medical care, . . . the Eighth Amendment and Fourteenth Amendment standards [are]

precisely the same.” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 668 (9th Cir. 2021).

The elements of a pretrial detainee’s Fourteenth Amendment claim of inadequate medical

care against an individual officer are as follows:

(i) [T]he defendant made an intentional decision with respect to the conditions

under which the plaintiff was confined; (ii) those conditions put the plaintiff at

substantial risk of suffering serious harm; (iii) 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 (iv) by not taking such

measures, the defendant caused the plaintiff’s injuries.

Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). With respect to the second

element, examples of a serious medical need include “[t]he existence of an injury that a

reasonable doctor or patient would find important and worthy of comment or treatment; the

presence of a medical condition that significantly affects an individual’s daily activities; or the

existence of chronic and substantial pain . . . .” McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th

Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.

1997). “With respect to the third element, the defendant’s conduct must be objectively

unreasonable, a test that will necessarily ‘turn on the facts and circumstances of each particular

case.’” Gordon, 888 F.3d at 1125 (citation modified) (quoting Castro, 833 F.3d at 1071). “A

court must make this determination from the perspective of a reasonable officer on the scene,

including what the officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley v.

Hendrickson, 576 U.S. 389, 397 (2015).

Defendants argue that Plaintiff’s Amended Complaint only contains threadbare

recitations of harm and are “are insufficient to sustain a claim under the Fourteenth

Amendment . . . .” Defs.’ Mot. 6. The Court disagrees. As explained below, the Court finds that

Plaintiff sufficiently alleges each of the above four elements.

First, Plaintiff alleges various intentional decisions with respect to the conditions under

which Plaintiff was confined. For example, Defendant Mire “refused to allow [Plaintiff] to use

the restroom on multiple occasions during [an] approximately 3.5-hour period.” Am. Compl.

¶ 20. Plaintiff then “used the emergency nurse request button on his bed.” Id. ¶ 22. “The nurse

arrived and tried to convince Defendant Mire to uncuff [Plaintiff] so he could go to the

bathroom[,]” but “Defendant Mire refused.” Id. While leaving OHSU, Plaintiff alleges that

“Defendant Mire required Plaintiff to get out of bed without any assistance despite [Plaintiff’s]

recent surgery and compromised physical condition.” Id. ¶ 35. Later, Defendant Mire told

Plaintiff that “he would have to walk across the gravelly parking lot and across the street outside

OHSU to get to [Defendant Mire’s] police vehicle” even though Plaintiff was not wearing

footwear. Id. ¶¶ 34, 42.

Second, Plaintiff sufficiently alleges that Defendants’ actions put him at substantial risk

of suffering serious harm. Plaintiff alleges that he “suffered physical discomfort, abdominal pain,

and the indignity of defecating on himself.” Id. ¶ 25. Plaintiff also alleges that throughout his

walk to Defendant Mire’s car, Plaintiff “could feel his fresh surgical wound begin to rip and tear

around the belly button.” Id. ¶ 39; see also id. ¶ 47 (while walking through the parking lot,

“[Plaintiff] could feel his surgical wound tear at around the belly button region”). Another risk of

harm allegedly occurred when Plaintiff had to walk across “parking lot gravel on his exposed

feet.” Id. ¶ 47. While walking on these rocks, he alleges that he failed to “maintain his balance

while not stretching his surgical scar nor stepping on rocks.” Id. Plaintiff also alleges that

throughout his walk to Defendant Mire’s car, an “OHSU doctor passerby followed Defendant

Mire through the hallways and into the elevator, all the while pleading with [Defendant] Mire” to

allow him to get a wheelchair or “gripped socks” to wear. Id. ¶¶ 40–41. This last allegation is

consistent with Ninth Circuit caselaw finding that examples of risk—in the context of medical

care—include “[t]he existence of an injury that a reasonable doctor or patient would find

important and worthy of comment or treatment; the presence of a medical condition that

significantly affects an individual’s daily activities; or the existence of chronic and substantial

pain . . . .” McGuckin, 974 F.2d at 1059–60. Here, Plaintiff alleges that a medical professional

observed and did comment that Plaintiff had a medical condition that, at the very least, was

worthy of further attention.

Third, Plaintiff sufficiently alleges that Defendant Mire did not take reasonable available

measures to abate the risks posed to Plaintiff. On several occasions, Plaintiff alleges that OHSU

nurses and doctors not only offered, but “plead[ed]” with, Defendant Mire to allow them to

attend to Plaintiff. Id. ¶ 41. Plaintiff alleges that one nurse “tried to convince Defendant Mire to

uncuff [Plaintiff] so he could go to the bathroom[, and] Defendant Mire refused.” Id. ¶ 22. After

Plaintiff defecated on himself, Defendant Mire refused nursing staff’s request to allow Plaintiff

to use the restroom to “shower to clean and care for his surgical wound.” Id. ¶¶ 27–28. Plaintiff

next alleges that Defendant Mire again refused nurses’ requests to allow Plaintiff to go to the

bathroom before leaving the hospital. Id. ¶ 32. Plaintiff also alleges that at least one nurse and

one doctor noticed Plaintiff’s pain and distress and “stopped to address Defendant Mire in an

attempt to convince him into letting [Plaintiff] get a wheelchair or, at minimum, gripped

socks[,]” which Defendant Mire also refused. Id. ¶ 40. Plaintiff also alleges that when a nurse

“ran inside to get him a wheelchair” before he had to walk across the gravelly parking lot,

“Defendant Mire took this as an opportunity to rush [Plaintiff] through the parking lot without

interference from OHSU medical staff.” Id. ¶ 44. In all, Plaintiff sufficiently alleges that OHSU

staff communicated to Defendant Mire about several reasonable available measures to abate risks

to Plaintiff, and that Defendant Mire refused to make those measures available to Plaintiff.

Finally, Plaintiff alleges that Defendants’ conduct caused his injuries. Plaintiff alleges

that “[a]s a result of being denied restroom access for this extended period, Plaintiff suffered

physical discomfort, abdominal pain, and the indignity of defecating on himself.” Id. ¶ 25.

Because he was forced to walk barefoot across a gravelly parking lot, “[u]pon stepping on a

particularly sharp rock, [Plaintiff] could feel the skin break on his heel” and his “surgical wound

tear at around the belly button region.” Id. ¶ 47; see also id. ¶ 55 (“When [Plaintiff] was finally

able to go to the bathroom and inspect his wounds, he saw blood all over his abdominal region

and on his heel as a result of stepping on the rock in the parking lot.”).

Defendants argue that “[P]laintiff was under the care of OHSU at all material times prior

to discharge[,]” and that “[t]he hospital, not [Defendant] Mire, chose what clothing was provided

to plaintiff at discharge.” Defs.’ Reply 4–5. The Court disagrees. Plaintiff’s Amended Complaint

contains several allegations that support the inference that while OHSU was charged with

Plaintiff’s care, Defendant Mire prevented that care from reaching Plaintiff. See, e.g., Am.

Compl. ¶ 40 (Defendant Mire “refused” to allow OHSU staff to provide Plaintiff with gripped

socks); id. ¶ 22 (Defendant Mire “refused” to let Plaintiff use the bathroom despite a nurse

“tr[ying] to convince Defendant Mire[,]” leaving the nurse with “no other options”). Defendants’

argument is even more unavailing with respect to the moments in which Plaintiff was allegedly

in the sole care of Defendants at MCDC. After arriving at MCDC, Plaintiff alleges that he “was

not given a shower for some hours” even though Defendant Mire told Plaintiff that “he would be

able to use the bathroom and get a shower [at MCDC].” Id. ¶ 54.

In sum, the Court finds that Plaintiff sufficiently states a claim on his deliberate

indifference theory of liability.

C. Intended as Punishment

Defendants argue that “Plaintiff’s allegations fail to establish that the purpose of

[Defendant] Mire’s conduct was to punish [Plaintiff].” Defs.’ Mot. 7. Plaintiff argues that

“[i]ntent to punish exists on these facts, but Plaintiff is not even required to allege subjective

intent or motive to punish in a case like this.” Pl.’s Opp’n 20. The Court finds that Plaintiff

sufficiently alleges that Defendant Mire acted with an intent to punish.

A pretrial detainee “may not be punished prior to an adjudication of guilt in accordance

with due process of law.” Bell, 441 U.S. at 535. While the government “may detain [an

individual] to ensure his presence at trial and may subject him to the restrictions and conditions

of the detention facility[,]” the “conditions and restrictions” of that detention must not “amount

to punishment, or otherwise violate the Constitution.” Id. at 536–37. On one hand, “if a particular

condition or restriction of pretrial detention is reasonably related to a legitimate governmental

objective, it does not, without more, amount to ‘punishment.’” Id. at 539. But “in the absence of

an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the

actions are not ‘rationally related to a legitimate nonpunitive governmental purpose’ or that the

actions ‘appear excessive in relation to that purpose.’” Kingsley, 576 U.S. at 398 (quoting Bell,

441 U.S. at 561). In other words, “if a restriction or condition is not reasonably related to a

legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose

of the governmental action is punishment that may not constitutionally be inflicted upon

detainees qua detainees.” Bell, 441 U.S. at 539.

Here, Plaintiff alleges that:

Defendant Mire acted for the purpose of punishing [Plaintiff] for a crime no court

of law had found him guilty of, as evinced by Defendant Mire’s consistent refusal

to allow [Plaintiff] reasonable access to the bathroom and by marching [Plaintiff]

through OHSU a week after surgery in nothing but a hospital gown and sheer

underwear, knowingly causing him pain and embarrassment in the process.

Am. Compl. ¶ 65. Additionally, Plaintiff alleges that Defendant Mire knew that his actions

caused pain and embarrassment for Plaintiff because of “several bystanders attempting to

intervene because [Plaintiff] was so visibly in distress . . . .” Id. ¶ 66.

Defendants argue that Defendant Mire’s conduct was necessary because Defendant Mire

needed “to protect both the public and [Plaintiff] from any additional violence or retaliation.”

Defs.’ Mot. 8. But Defendants do not sufficiently explain how denying Plaintiff access to the

bathroom for three and a half hours was connected to the need to protect the public or Plaintiff,

see Am. Compl. ¶ 20, particularly in light of Plaintiff’s allegation that “other PPB

officers . . . allowed [Plaintiff] to go to the bathroom when needed and access nursing staff

unimpeded[,]” id. ¶ 17. Nor do Defendants explain how denying Plaintiff a wheelchair was

connected to protecting the public. See id. ¶ 40. The Court also notes that it must accept as true

Plaintiff’s allegation that he recently went through a surgery which caused him to be in a

“compromised physical condition” at the time of his transport to MCDC. Id. ¶ 35; see also id.

¶ 31 (Plaintiff alleging that he “had difficulty moving because of his back wound, his post-

operative fatigue, incontinence, and surgical wound”). And even if such allegations were not

taken as true, “where an individual is incarcerated before trial but has not been convicted of any

crime, imposing adverse conditions during his detention as a means of deterring crimes is not

permissible.” Demery v. Arpaio, 378 F.3d 1020, 1031 (9th Cir. 2004).

Defendants also argue that Plaintiff’s Amended Complaint contains contradictory

allegations. For example, Defendants argue that Plaintiff’s allegation that Defendant Mire

appeared “annoyed and bored” is insufficient to establish that Defendant Mire intended to punish

Plaintiff. Defs.’ Mot. 7–8 (quoting Am. Compl. ¶ 21). But Defendants do not explain how

Defendant Mire’s alleged demeanor means that Defendant Mire necessarily lacked an intent to

punish. Nor do Defendants directly respond to the specific allegations of Defendant Mire’s

conduct. See Am. Compl. ¶¶ 21–22 (refusing to allow Plaintiff to use the bathroom on several

occasions); id. ¶¶ 27–28, 54 (twice refusing to allow Plaintiff to clean himself after defecating on

himself); id. ¶ 40 (refusing to allow Plaintiff to use a wheelchair or wear gripped socks); id. ¶ 42

(making Plaintiff “walk across the gravelly parking lot and across the street outside OHSU to get

to Defendant’s police vehicle”); id. ¶¶ 49–50, 53 (making Plaintiff get in and out of an “elevated

SUV” resulting in further damage to his surgical wound).

Accordingly, the Court finds that Plaintiff states a claim on his second “intent-to-punish”

theory of liability.

III. Tort Claims

Defendants argue that Plaintiff fails to state an IIED claim. Defs.’ Mot. 12–16.

Defendants also argue that Plaintiff failed to give notice of his tort claims within the statutory

period and that Plaintiff improperly bases his state claims on the same set of facts as his § 1983

claims. Id. at 10–12. The Court finds that Plaintiff gave timely notice, that Plaintiff does not

improperly base his negligence claim on the same set of facts as his other claims at this stage of

the litigation, and that Plaintiff sufficiently states his IIED claim.

A. Notice Requirement

Defendants first argue that Plaintiff did not provide them with a timely tort claim notice.

Defs.’ Mot. 10–11. The Court disagrees.

The Oregon Tort Claims Act requires a plaintiff to give “[n]otice of claim . . . within 180

days after the alleged loss or injury.” Or. Rev. Stat. § (“ORS”) 30.275(2)(b). “A plaintiff may

satisfy the notice requirement by ‘formal notice,’ ‘actual notice,’ or commencement of an action

by or on behalf of the claimant.” Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432,

436 (9th Cir. 1997) (emphasis added) (quoting ORS 30.275(3)); see also Cannon v. Or. Dep’t of

Just., 261 Or. App. 680, 682, 322 P.3d 601 (2014) (holding that “the action . . . shall be deemed

to have been commenced upon the date on which the complaint in the action was filed”

for notice purposes (quoting ORS 12.020(2)).

Here, Plaintiff challenges the actions of Defendants that occurred on June 2, 2024. See

Am. Compl. ¶¶ 18–56 (allegations of facts on June 2, 2024). Because Plaintiff filed his original

Complaint on October 9, 2024, Plaintiff gave notice by commencing this action within the

prescribed 180-day timeline. See Compl., ECF No. 2.

Defendants argue that Plaintiff fails the OTCA notice requirement because he did not

originally allege tort claims under Oregon law. Defs.’ Reply 7. But the Court does not infer from

the plain language of the statute that Plaintiff had to allege a tort claim in his original Complaint.

Nor do Defendants provide authority adopting their interpretation of the OTCA notice

requirement. Thus, the Court does not find that Plaintiff needed to plead specific actions in tort in

order overcome the notice requirement in ORS 30.275. See Maney v. Oregon, 729 F. Supp. 3d

1087, 1183 (D. Or. 2024), aff’d, No. 24-2715, 2025 WL 1794110 (9th Cir. June 30, 2025)

(“[T]he Court rejects [the defendants’] argument that [the plaintiffs’] claims are now barred

because [the plaintiffs] have added new facts and ‘theories’ to their complaint.”). Accordingly,

the Court finds that Plaintiff meets his burden of providing notice under the OTCA by

commencing this action within 180 days of his alleged injuries.

B. Same Set of Facts

Defendants argue that the Court must dismiss Plaintiff’s negligence claim because

“[e]stablished case law in this district states that a negligence claim cannot be based on the same

set of facts as a § 1983 claim.” Defs.’ Mot. 11. The Court disagrees that it must dismiss

Plaintiff’s negligence claim at this stage of the litigation.

In support of their position, Defendants cite Shilo v. City of Portland, among many other

cases, in which the court held that a “negligence claim . . . should not be founded on the same

facts that give rise to the § 1983 claim.” No. CV 04-130-AS, 2005 WL 3157563, at *1 (D. Or.

Nov. 22, 2005). But Shilo and many of the other cases which Defendants cite resolved pending

motions for summary judgment. And as one of Defendants’ cited cases held, the “[Shilo]

standard does not apply at the initial pleading stage.” Rodriguez v. City of Portland, No. 09-850-

KI, 2009 WL 3518004, at *2 (D. Or. Oct. 21, 2009). Because this case is still at the initial

pleading stage, the Court declines to dismiss Plaintiff’s negligence claim because it may be

founded on the same set of facts as his § 1983 claims.

Defendants also argue that Plaintiff’s negligence claim should be dismissed because it is

based on the same facts as Plaintiff’s IIED claim. Defs.’ Mot. 12. Defendants do not offer

authority supporting this position. Indeed, “at the initial pleading stage, Rule 8 permits an

allegation of negligence in one count and an allegation of intentional action, based on the same

facts, in another.” Rodriguez, 2009 WL 3518004, at *2. The Court also declines to dismiss

Plaintiff’s negligence claim because it may be founded on the same set of facts as his IIED

claim.

C. Intentional Infliction of Emotional Distress

Defendants argue that Plaintiff fails to allege facts to state an IIED claim. Defs.’ Mot. 12–

16. Plaintiff argues that he does. Pl.’s Opp’n 24–27. The Court agrees with Plaintiff.

“To prevail on a claim for IIED, a plaintiff must show that: ‘(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.’” Davoodian v. Rivera, 327 Or. App.

197, 213, 535 P.3d 309 (2023) (quoting McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d

841 (1995)). As to the intent requirement, “[b]ecause proof of intent is often indirect and

evidence of psychic harm is usually self-serving, proof of this tort largely turns on . . . whether a

defendant’s conduct is sufficiently outrageous.” Id. (quoting House v. Hicks, 218 Or. App. 348,

358, 179 P.3d 730 (2008)). As to the third element, “whether conduct is an extraordinary

transgression is a fact-specific inquiry, to be considered on a case-by-case basis, based on the

totality of the circumstances.” Id. (citation modified). Additionally, “whether the offensiveness

of the conduct ‘exceeds any reasonable limit of social toleration’ is ‘a judgment of social

standards rather than of specific occurrences.’” Id. at 213–14 (quoting House, 218 Or. App. at

358–59).

In addition to the three elements discussed above, “[t]he relationship between the parties

has particular bearing on potential characterization of the conduct as extreme or outrageous.”

Delaney v. Clifton, 180 Or. App. 119, 130, 41 P.3d 1099 (2002). A plaintiff must generally

allege that a defendant’s position or role “imposes on the defendant a greater obligation to refrain

from subjecting [the plaintiff] to abuse, fright, or shock than would be true in arm’s-length

encounters among strangers.” Id. (quoting Williams v. Tri-Met, 153 Or. App. 686, 689–90, 958

P.2d 202 (1998)). “[T]he lack of such a relationship generally defeats a conclusion that the

conduct is actionable through an IIED claim.” Id. A relationship between a government officer

and a citizen may satisfy the relationship requirement if the alleged relationship “shapes the

interpersonal dynamics of the parties.”4 House, 218 Or. App. at 360.

As to the first element, Defendants argue that “[P]laintiff alleges no facts from which a

jury could reasonably infer that [Defendant] Mire acted with an intent to cause [P]laintiff severe

emotional distress.” Defs.’ Mot. 13. But in lieu of allegations of intent, Plaintiff’s allegations

focus on what Defendant Mire did. See Am. Compl. ¶¶ 21–22, 32 (repeatedly refusing to allow

Plaintiff to use the bathroom); id. ¶¶ 27–28, 54 (refusing to allow Plaintiff to clean himself after

4 Defendant does not argue that Plaintiff fails to allege the requisite relationship. But the

Court finds that Plaintiff sufficiently alleges the existence of a relationship between Defendant

Mire and Plaintiff. Plaintiff alleges that “Defendant Officer Mire, a Portland Police Officer

employed by Defendant City of Portland, was assigned to guard Plaintiff at OHSU” on June 2,

2024. Am. Compl. ¶ 15. He also alleges that “Defendant Mire was responsible for transporting

Plaintiff from OHSU to [MCDC] following his discharge.” Id. ¶ 16. He also alleges that other

officers who watched Plaintiff “allowed [Plaintiff] to go to the bathroom when needed and

access nursing staff unimpeded.” Id. ¶ 17.

defecating on himself); id. ¶ 40 (refusing to allow Plaintiff to use a wheelchair or wear gripped

socks); id. ¶¶ 42, 45–46 (making Plaintiff walk in the rain and in his hospital gown “across the

gravelly parking lot and across the street outside OHSU to get to Defendant’s police vehicle”);

id. ¶¶ 49–50, 53 (making Plaintiff get in and out of an “elevated SUV” without assistance,

resulting in further damage to his surgical wound); see also Davoodian, 327 Or. App. at 213

(“Because proof of intent is often indirect and evidence of psychic harm is usually self-serving,

proof of [IIED] largely turns on whether a defendant’s conduct is sufficiently outrageous.”

(citation modified) (emphasis added)). Plaintiff alleges that OHSU nurses and doctors advised

Defendant Mire of Plaintiff’s needs multiple times, and Defendant Mire consistently refused to

allow Plaintiff to access to the bathroom, use a wheelchair while exiting the hospital, and access

other accommodations. See id. ¶¶ 22–23, 27–28, 40–41. As a result, Plaintiff experienced

emotional distress in the form of embarrassment, anxiety, and “breaking down into tears . . . .”

Id. ¶¶ 65, 80. At this preliminary stage, the Court finds that Plaintiff alleges that Defendant Mire

engaged in conduct was substantially certain to cause Plaintiff severe emotional distress.

Delaney, 180 Or. App. at 132.

As to the second element, the Court does not read Defendants’ Motion as meaningfully

disputing whether Defendant Mire’s conduct caused Plaintiff emotional distress.5 As a result, the

Court does not discuss it.

5 Defendants do argue that Plaintiff fails to plead “facts from which it is possible to infer

that severe emotional distress was a certain or substantially certain result of his alleged action.”

Defs.’ Mot. 13. But this argument is different from arguing that Defendant Mire’s conduct

caused Plaintiff’s emotional distress. Indeed, this language of “certain or substantially certain

result” is often used by Oregon courts to describe the burden of establishing the intent element,

not causation. See Delaney, 180 Or. App. at 132 (“The intent element of the claim . . . is satisfied

if a defendant either ‘desires to inflict severe emotional distress, or knows that such distress is

certain, or substantially certain, to result from his conduct.’” (quoting McGanty, 321 Or. at 550)).

As to the third element, Defendants argue that Plaintiff’s allegations of Defendant Mire’s

conduct “do not constitute an extraordinary transgression sufficient to support an IIED claim,

particularly given the nature of [Plaintiff’s] custody.” Defs.’ Mot. 16. The Court disagrees. In

addition to sufficiently alleging the details of Defendant Mire’s conduct, Plaintiff also alleges

numerous instances in which hospital staff asked Defendant Mire to allow Plaintiff to use the

bathroom, to use a wheelchair, to wear gripped socks, and to travel to Defendant Mire’s car with

additional accommodations. See Am. Compl. ¶¶ 22–23, 27–28, 40–41. While walking across the

gravelly hospital parking lot, Plaintiff also alleges that “[a] passerby in a black vehicle stopped

his vehicle to ask [Plaintiff] if he was okay[, and] Defendant Mire told the driver to move along.”

Id. ¶ 48. Because many bystanders either pleaded directly with Defendant Mire or made remarks

about Plaintiff’s suffering as he was travelling to Defendant Mire’s car, the Court finds that

Plaintiff plausibly alleges this final element.

Defendants argue that Plaintiff’s “factual allegations are dissimilar to any conduct that

the Oregon Courts have found to meet the outrageous conduct element of IIED[,]” and cite

several cases with facts that are fairly different from this case.6 Defs.’ Mot. 14–15. But as

Defendants explain, “[d]etermination of whether the alleged conduct is an extraordinary

6 For example, Defendants cite Williams, 153 Or. App. at 688, in which a bus driver

“berated, insulted, and belittled” a disabled passenger, questioned her disability, questioned her

right to have an assistance dog, and questioned her right to pay a reduced fee in front of other

passengers. See also Clifford v. City of Clatskanie, 204 Or. App. 566, 570, 575, 131 P.3d 783

(2006) (defendant police officer falsely told classmates of deceased teenager that teenager had

called the police on a party); Richer v. Poisson, 137 Or. App. 157, 160–61, 903 P.2d 932 (1995)

(defendant–landlord graffitied over plaintiffs’ store window, harassed plaintiffs’ customers and

employees, set the heat too high, sent customers to competitors, placed paper over business

signs, and made harassing telephone calls to plaintiffs); Checkley v. Boyd, 170 Or. App. 721,

725, 14 P.3d 81 (2000) (defendant allegedly engaged in a pattern of brainwashing plaintiff’s

mentally disabled brother to falsely believe that plaintiff had stolen from him, was neglecting his

basic needs, was holding him prisoner, and was persecuting him for his religious beliefs, among

other allegations).

transgression is a fact-specific inquiry.” /d. at 14; accord Davoodian, 327 Or. App. at 213

(“Whether conduct is an extraordinary transgression is a fact-specific inquiry, to be considered

on a case-by-case basis, based on the totality of the circumstances.” (internal quotation marks

omitted)). Thus, the Court declines to dismiss Plaintiff’s IED claim on the basis that the facts

here are different from Defendants’ cited HED cases.

Defendants also argue that “OHSU staff had the ability to help [Plaintiff] with any

toileting or hygiene needs at bedside.” Defs.’ Mot. 13. But in reading Plaintiff's Amended

Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff sufficiently

precludes this argument by alleging that the attending nurse “had no other options left” because

of Defendant Mire’s refusal to allow Plaintiff to use the bathroom. Am. Compl. § 22. In sum, the

Court finds that Plaintiff sufficiently alleges an ITED claim under Oregon law.

CONCLUSION

The Court DENIES Defendants’ Motion to Dismiss for Failure to State a Claim [36].

IT IS SO ORDERED.

DATED this 17" day of April, 2026.

AMY M. BAGGIO

United States District Judge

23 — OPINION & ORDER