# Pooler

> District Court, D. Oregon · April 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11317461

## Case

- **Full name:** Danovan Maurice Pooler v. City of Portland and Abbas Mire
- **Court:** District Court, D. Oregon
- **Decided:** April 17, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11317461

## How later opinions describe it (automated extraction)

- 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)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11317461. Public record. Not legal advice.