West

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PENDLETON DIVISION

BRYAN P. WEST Civ. No. 2:26-cv-1000-AA

Plaintiff, OPINION & ORDER

v.

OREGON DEPARTMENT OF

CORRECTIONS, et al.

Defendants.

_______________________________________

AIKEN, District Judge.

Self-represented Plaintiff Bryan P. West seeks leave to proceed in forma

pauperis (“IFP”) in this action. For the reasons set forth below, Plaintiff’s IFP

Petition, ECF No. 2, is GRANTED. However, the Complaint, ECF No. 1, is

DISMISSED with leave to amend.

LEGAL STANDARD

Generally, all parties instituting any civil action in United States District

Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP

statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for

meaningful access to federal courts despite their inability to pay the costs and fees

associated with that access. To authorize a litigant to proceed IFP, a court must make

two determinations. First, a court must determine whether the litigant is unable to

pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess

whether the action is frivolous, malicious, fails to state a claim upon which relief may

be granted, or seeks monetary relief from a defendant who is immune to such relief.

28 U.S.C. § 1915(e)(2)(B).

With regard to the second of these determinations, district courts have the

power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the

complaint on the defendants and must dismiss a complaint if it fails to state a claim.

Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter,

668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal

pleading standards, the complaint must include a short and plain statement of the

claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The plausibility

standard . . . asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. The court is not required to accept legal conclusions, unsupported

by alleged facts, as true. Id.

Pro se pleadings are held to less stringent standards than pleadings by

attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the court should

construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of

any doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.

1988). Additionally, a pro se litigant is entitled to notice of the deficiencies in the

complaint and the opportunity to amend, unless the complaint’s deficiencies cannot

be cured by amendment. Id.

DISCUSSION

I. IFP Petition

When assessing an IFP petition, the Court first must determine whether the

plaintiff has made a sufficient showing of indigency. Here, the Court is satisfied with

Plaintiff’s showing of indigency, and the IFP petition is granted.

II. Complaint

Turning to the Complaint, Plaintiff brings five claims against Defendants: the

Oregon Department of Correction (“ODOC”); Peter Fercurka, P.M.H.N.P.’ Moriam

Balogun, N.P.; Therese Murkowski, L.P.N.’ and John/Jane Doe, “Supervisory

Officials.” Compl. at 2-3. The identified individual defendants are sued in their

individual and official capacities. Id. at 2.

Three claims are for violations of the U.S. Constitution under 42 U.S.C § 1983:

First Amendment Retaliation against Defendants Fercurka and Balogun; Eighth

Amendment Deliberate Indifference against all Defendants; and Fourteenth

Amendment Due Process violation against all Defendants. Id. at 5. One claim is for

violation of the Americans with Disabilities Act, 42 U.S.C. § 12132, against Defendant

ODOC. Id. The final claim is for Monell liability against Defendant ODOC. Id. at 5-

6.

The Court infers that the claims arise out of Plaintiff’s time as an adult-in-

custody (“AIC”) in the ODOC system, though Plaintiff does not actually allege that

he was ever an AIC in the ODOC system. Plaintiff does allege that he “is a qualified

individual with documented disabilities, including Schizophrenia (MH3 code), PTSD,

and Opioid Use Disorder (OUD).” Compl. at 3.

A. Factual Allegations

To support the claim of First Amendment Retaliation, Plaintiff alleges that in

May 2024, Defendant Fercurka “increased Plaintiff's Seroquel dosage to stabilize

hallucinations and psychiatric symptoms.” Compl at 3. Plaintiff alleges that around

June 1, 2024, he was “involved in a self-defense altercation and placed in

administrative segregation.” Compl. at 3. Plaintiff alleges that on or about June 15,

2024, Defendant Fercurka “terminated Plaintiff's Seroquel prescription . . . as a

disciplinary measure.” Id.

Plaintiff subsequently filed a “formal grievance regarding this medical neglect”

and alleges that Defendant Fercurka “retaliated by intentionally violating

[Defendant Fercurka’s] own established taper schedule” and dropp[ed] Plaintiff's

dosage by an additional 100mg overnight[.]” Compl. at 4.

Defendant alleges that Defendant Balogun, “[i]n further retaliation for

Plaintiff's multiple grievances . . . forced Plaintiff onto Sublocade injections against

his medical preference.” Compl at 4. Additionally, Plaintiff alleges that

“[i]mmediately prior to Plaintiff's release (parole), Defendant Balogun dropped

Plaintiff to a 100mg injection, while allowing other releasing individuals to maintain

sublingual tablets.” Id.

To support the claim for a Due Process violation, Plaintiff alleges that on

March 24, 2025, he was “falsely accused [by Defendant Murkowski] of ‘diverting’

Suboxone after a tablet accidentally fell from a medication cup.” Compl. at 4. He

further alleges that “Defendant Murkowski failed to verify this with available video

evidence” and that “video footage exonerated the plaintiff.” Id. He alleges that as a

result, Defendant Balogun terminated Plaintiff’s “life-sustaining MAT (Suboxone)

‘cold turkey’ without a disciplinary hearing or a medical review of exonerating

evidence.” Id.

Plaintiff alleges that as a result of the termination of his medication, he

“suffered 30 days of extreme physical withdrawal and multiple grand mal seizures.”

Id. To support the claim of deliberate indifference, Plaintiff alleges that “Defendants

provided zero medical intervention or monitoring” during this period and that

[d]espite active knowledge of these life-threatening events[.]” Id.

To support the Monnell claim, Plaintiff alleges that “ODOC maintains a

widespread, persistent, and unwritten policy, custom, or practice of permitting and

tolerating its medical practitioners and correctional supervisors to weaponize life-

sustaining psychiatric medications and Medication-Assisted Treatment (MAT) as a

punitive mechanism for behavioral discipline.” Id. at 6.

B. Claims under 42 U.S.C. § 1983

“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation

of a right secured by the Constitution and laws of the United States, and must show

that the alleged deprivation was committed by a person acting under color of state

law.” West v Atkins, 487 U.S. 42, 48 (1988). “A § 1983 claim also requires proof of

causation, and allegations regarding causation must be individualized and focus on

the duties and responsibilities of each individual defendant whose acts or omissions

are alleged to have caused a constitutional deprivation.” Miranda v. Inmate Servs.

Unit, No. 2:23-CV-00567-AR, 2025 WL 2481171 at *3 (D. Or. Aug. 28, 2025). .

(internal quotation and citation omitted).

Importantly, a State, its agencies, and its officials acting in their official

capacity are not “persons” under § 1983, so cannot meet the second element of a

§ 1983 claim. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

Here, Plaintiff has made two claims under § 1983 against ODOC, which is a

state agency. Those claims—Eighth Amendment Deliberate Indifference and

Fourteenth Amendment Due Process—must be dismissed as to ODOC for failure to

state a claim upon which relief may be granted. Because no amendment would render

ODOC amenable to suit under § 1983, dismissal of these claims is without leave to

amend.

Additionally, Plaintiff has sued the three individual defendants—state

officials—in their individual and official capacities. Regarding the three § 1983 claims

for violations of constitutional rights, those claims against Defendants Fercurka,

Balogun, and Murkowski in their official capacities must also be dismissed for failure

to state a claim upon which relief may be granted. As with the claims against ODOC,

dismissal of the official capacity § 1983 claims is without leave to amend

C. Count 1: First Amendment Retaliation

“In the prison context, a First Amendment retaliation claim under 42 U.S.C §

1983 must establish that a state actor took a harmful action against a prisoner

because of that prisoner's protected conduct and that the action did not ‘reasonably

advance a legitimate correctional goal.’” Payne-Rana v. Wood, No. 2:24-CV-01984-

MO, 2026 WL 296088 at *3 (D. Or. Feb. 4, 2026) (quoting Rhodes v. Robinson, 408

F.3d 559, 567–68 (9th Cir. 2005)). “The filing of grievances against prison officials is

a protected activity.” Id. “A prisoner successfully pleads that the harmful action did

not reasonably advance a legitimate correctional goal by alleging along with a

retaliatory motive, the defendant's actions were ‘arbitrary and capricious’

or “‘unnecessary to the maintenance of order in the institution.’” Id. (quoting Watison

v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)).

Here, Plaintiff alleges that he filed a grievance regarding his medical

treatment and that “within 24 hours” Defendant Fercurka “retaliated” by

accelerating the “taper schedule” on a medication that Plaintiff took.

For this instance, Plaintiff adequately pleads the protected conduct (the

grievance). But Plaintiff does not adequately plead the harmful action. First, Plaintiff

does not actually allege harm—only that the taper schedule was changed. Plaintiff

does not allege that this harmed him. Just as importantly, while Plaintiff does plead

a retaliatory motive, Plaintiff does not plead that the action—reducing the taper

schedule—was without a legitimate correctional goal.

Plaintiff also alleges that Defendant Balogun forced Plaintiff to take injections,

rather than sublingual tablets, for his Sublocade medication. Additionally, Plaintiff

alleges that his dosage was changed for punitive reasons due to Plaintiff’s filing of

grievances.

The issues with this instance are the same as the previous. Plaintiff adequately

alleges protected conduct and a retaliatory motive but does not plead harm or that

there was no valid correctional goal in the change. Plaintiff may have preferred

sublingual tablets, as he alleges, but that in and of itself does not allege the action

was harmful.

Therefore, Plaintiff has failed to state a First Amendment Retaliation claim

against Defendants Balogun and Fercurka in their individual capacities. As

explained above, the claims against these Defendants in their official capacities fail

without reference to the factual allegations because the Defendants are immune from

a § 1983 suit in their official capacities.

D. Count 2: Eighth Amendment Deliberate Indifference

“A public official's deliberate indifference to a prisoner's serious illness or

injury violates the Eighth Amendment ban against cruel punishment.” Maney v.

Brown, 464 F.Supp.3d, 1191, 1209 (D. Or. 2020) (internal quotation and citations

omitted). To succeed on such a claim, “[a] plaintiff must establish that he was confined

under conditions posing a risk of objectively, sufficiently serious harm and that the

officials had a sufficiently culpable state of mind in denying the proper medical care.”

Id. (internal quotation and citations omitted). “Thus, there is both an objective and a

subjective component to an actionable Eight Amendment violation.” Id.

“To satisfy the objective prong, a plaintiff must show a serious medical need by

demonstrating that failure to treat the prisoner's condition could result in further

significant injury or the unnecessary and wanton infliction of pain.” Id. (internal

quotation and citation omitted). “The subjective component requires the inmates to

show that the officials had the culpable mental state, which is deliberate indifference

to a substantial risk of serious harm.” Id. “’Deliberate indifference’ is established only

when the official knows of and disregards an excessive risk to inmate health or safety;

the official must be both aware of the facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the inference.”

Id. (internal quotation and citation omitted).

Here, Plaintiff alleges that Defendant Balogun forced him to quit Suboxone

“cold turkey,” which led to “30 days of extreme physical withdrawal and multiple

grand mal seizures” and that he was completely unmonitored for that period. At this

stage, that satisfies the objective prong as to Defendant Balogun because it alleges

that the “failure to treat . . . resulted in further significant injury [and] the

unnecessary and wanton infliction of pain.” Plaintiff does not adequately plead the

objective prong as to Defendant Murkowski, who is not alleged to have been part of

the termination of the medication or to have had a role in Plaintiff treatment—the

only allegation against Defendant Murkowski is that she “falsely accused” Plaintiff

of diverting medication.

Turning to the subjective prong as to Defendant Balogun, Plaintiff alleges that

“[d]espite active knowledge of these life-threatening events . . . Defendants provided

zero medical intervention or monitoring[.]” While Plaintiff alleges that Defendants

had “active knowledge, ”he provides no facts to support it. Plaintiff similarly says the

Defendants “ignored known risks of grand mal seizures[,]” but does not allege any

facts about why those are “known risks.”

Plaintiff has failed to state a § 1983 Eighth Amendment Deliberate

Indifference claim against either Defendant Balogun or Murkowski in their

individual capacities. Plaintiff is given leave to amend this claim consistent with this

opinion.

E. Count 3: ADA Title II Discrimination

A claim for Discrimination under the ADA requires a plaintiff to show that

the plaintiff:

“(1) is an individual with a disability; (2) is otherwise qualified to

participate in or receive the benefit of some public entity's services,

programs, or activities; (3) was either excluded from participation in or

denied the benefits of the public entity's services, programs, or

activities, or was otherwise discriminated against by the public entity;

and (4) such exclusion, denial of benefits, or discrimination was by

reason of [his or] her disability.”

Updike v. City of Gresham, 62 F.Supp.3d 1205, 1209-10 (D. Or. 2014) (internal

quotations and citations omitted).

The Court looks only to the fourth element: that the discrimination was “by

reason” of the disability. Plaintiff recites the element: “Defendant ODOC

discriminated against Plaintiff based on his disabilities by denying him access to

standard MAT and psychiatric care based on stigma and bias[.]” Compl. at 5. But that

is not enough. Instead, Plaintiff must plead facts that make such a claim plausible.

This claim is dismissed with leave to amend.

F. Count 4: Fourteenth Amendment Due Process

“The Due Process Clause of the Fourteenth Amendment prohibits states from

“depriv[ing] any person of life, liberty, or property, without due process of

law.” Johnson v. Ryan, 55 F.4th 1167, 1179 (9th Cir. 2022) (quoting U.S. Const.

amend. XIV, § 1). The basis of a Due Process claim under the Fifth or Fourteenth

Amendments is that a plaintiff has “recognized a property or liberty interest at

stake.” Erickson v. U.S. ex rel. Dep't of Health & Hum. Servs., 67 F.3d 858, 861 (9th

Cir. 1995) (citing Schroeder v. McDonald, 55 F.3d 454, 462 (9th Cir.1995)). “A liberty

interest ‘may arise from the Constitution itself ... or it may arise from an expectation

or interest created by state laws or policies.’” Johnson, 55 F.4th at 1180 (quoting

Wilkinson v. Austin, 545 U.S. 209, 221 (2005)).

“[P]risoners do not shed all constitutional rights at the prison gate, but lawful

incarceration brings about the necessary withdrawal or limitation of many privileges

and rights, a retraction justified by the considerations underlying our penal system.”

Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal quotation and citations omitted).

“Discipline by prison officials in response to a wide range of misconduct falls within

the expected perimeters of the sentence imposed by a court of law.” Id. at 486.

“In order to analyze a procedural due process claim, [courts] engage in a two-

step analysis: First, [courts] determine whether the inmate was deprived of a

constitutionally protected liberty or property interest. Second, [courts] examine

whether that deprivation was accompanied by sufficient procedural protections.”

Johnson, 55 F.4th at 1179.

[A]n interest in avoiding certain conditions of confinement “will be

generally limited to freedom from restraint which, while not exceeding

the sentence in such an unexpected manner as to give rise to protection

by the Due Process Clause of its own force, nonetheless imposes atypical

and significant hardship on the inmate in relation to the ordinary

incidents of prison life.

Id. at 1180 (quoting Sandin, 515 U.S. at 484).

Here, Plaintiff alleges that his protected interest is in his medical treatment,

specifically his Suboxone, the prescription for which was allegedly terminated by

Defendant Balogun based on allegations by Defendant Murkowski that he was

diverting the medication. Plaintiff does not identify a state law or policy that

establishes this interest, so the claim must be premised on a constitutionally

protected interest.

Plaintiff points to a lack of procedural safeguards—no hearing or medical

review—but the Court does not reach the second step of the analysis unless it finds a

protected interest necessitating procedural safeguards. Here, the withdrawal of

medication does not implicate a “freedom from restraint.”

The Constitutional right the Court can identify here is the Eighth

Amendment’s protection against cruel and unusual punishment. But, for prisoners,

that is not a liberty interest protected by the Fourteenth Amendment; it is a separate

claim, and one the Plaintiff has already alleged, as discussed above. See Frost v.

Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (“[C]laims by pretrial detainees are

analyzed under the Fourteenth Amendment Due process Clause,” but analogous

claims by prisoners are analyzed under the Eighth Amendment).

This claim is dismissed without leave to amend, as amendment would be futile.

G. Count 5: Monell

A Monell claim is named for the seminal case Monell v. Department of Social

Services of City of New York. 436 U.S. 658 (1978). A Monell claim is a species of §

1983 claim, and, as such, States, their agencies, and their officers acting in an official

capacity are immune from suit. Additionally, and distinct from the other § 1983

claims Plaintiff brings, Monell only applies to local governments, such as cities and

counties, and may not be brought against natural persons. See Gillette v. Delmore,

979 F.2d 1342, 1346 (9th Cit. 1992) (“[The Supreme Court] made clear that the

municipality itself must cause the constitutional deprivation and that a city may not

be held vicariously liable for the unconstitutional acts of its employees under the

theory of respondeat superior” (citing Monell, 436 U.S at 691)); and City of Canton v.

Harris, 489 U.S 378, 385 (1989)). This means Monell claims against state officials in

their individual capacities are not available, nor could ODOC be liable under a Monell

theory. A Monell claim may not be brought against ODOC, as an arm of the state, for

the reasons previously discussed.

Here, all Defendants are immune from or not proper parties to a Monell suit,

so this claim must be dismissed without leave to amend.

CONCLUSION

For the reasons set forth above, Plaintiff’s IFP petition, ECF No. 2, is

GRANTED but the Complaint, ECF No. 1, is DISMISSED with leave to amend and

without service on Defendants. Plaintiff shall have thirty days from the date of this

Order to file an amended complaint. Plaintiff is advised that failure to file an

amended complaint within the allotted time will result in entry of a judgment of

dismissal without further notice.

It is so ORDERED and DATED this 14th day of July 2026.

/s/Ann Aiken

ANN AIKEN

United States District Judge