Opinion
3:23-cv-00462-SB
05-21-2024
RICHARD J. FLORES, Plaintiff, v. KATE BROWN et al., Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, United States Magistrate Judge.
Plaintiff Richard J. Flores (“Flores”), a self-represented former adult in custody (“AIC”) of the Oregon Department of Corrections (“ODOC”), alleges claims against a long list of defendants including Oregon's former governor, ODOC, and various ODOC officials (together, the “State Defendants”), in addition to other medical professionals not employed by ODOC. Before the Court is the State Defendants' motion to dismiss. (ECF No. 58.) The Court has jurisdiction over Flores' claims pursuant to 28 U.S.C. §§ 1331 and 1367, but not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. For the reasons set forth below, the Court recommends that the district judge grant the State Defendants' motion to dismiss.
BACKGROUND
The State Defendants are former Oregon governor Kate Brown (“Brown”), Colette Peters (“Peters”), Heidi Steward (“Steward”), Tyler Blewett (“Blewett”), Joe Bugher (“Bugher”), Theron Rumsey (“Rumsey”), J. Ortiz (“Ortiz”), S. Ah yat (“Ah yat”), B. Garrett (“Garrett”), D. Berg (“Berg”), A. Royer (“Royer”), Daniel Dewsnup (“Dewsnup”), Shannon Johnston (“Johnston”), J. Quick (“Quick”), P. Maney (“Maney”), C. Scott (“Scott”), J. Peterson, C. Peterson, T. Palmer (“Palmer”), Louisiana, Michael Gower (“Gower”), M. Rhodes (“Rhodes”), N. Walsborn (“Walsborn”), C. Thurmond (“Thurmond”), A. Henderson (“Henderson”), H. Coleman (“Coleman”), S. Walker (“Walker”), E. Bradshaw (“Bradshaw”), C. Dieter (“Dieter”), T. Hazen (“Hazen”), Gullick (“Gulik”), J. Faulstich (“Falstich”), Brandi Zavala (“Zavala”), J.M. Aguiar (“Aguiar”), S. Johnson (“Johnson”), Battle, Leland Beamer (“Beamer”), Michele Davies (“Davies”), Kelly Drollinger (“Drollinger”), Warren Roberts (“Roberts”), Dane Koznek (“Koznek”), Cameron Wilson (“Wilson”), Lonney New (“New”), Gina Melise (“Melise”), Phoung Faria (“Faria”), Jason Hanson (“Hanson”), the Inspector General (“Ninman”), and ODOC. (See Defs.' Mot. at 3 n.1.) Flores also filed claims against D. Garin, T. Tarbet, Beata Sims (“Sims”), C. LeCloux, Sundstrom, R. Harmon, and Steven Evers, who are not parties to the instant motion. (See Am. Compl. (“FAC”) at 3-4, ECF No. 15; Supp. Compl. at 3-4, ECF No. 34.)
The State Defendants identify Gullick as “Gulik” and Faulstich as “Falstich.” (Defs.' Mot. Dismiss (“Defs.' Mot.”) at 3 n.1, ECF No. 58.)
The State Defendants identify the Inspector General as Ninman. (Defs.' Mot. at 4.)
Flores has filed a first amended complaint, with attached exhibits, and a supplemental complaint. (See FAC; Supp. Compl.) The Court may consider the exhibits without converting the motion to dismiss into a motion for summary judgment. See Hanif v. Bank of N.Y. Mellon, No. 3:16-cv-1820-SI, 2016 WL 7378991, at *1 (D. Or. Dec. 20, 2016) (“Consideration of extrinsic evidence does not convert a motion to dismiss into a motion for summary judgment . . . when the Court considers ‘documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice.'” (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003))); see also FED. R. CIV. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). The Court also considers Flores' state habeas corpus trial memorandum, which Flores incorporates by reference in his complaint and of which the Court may take judicial notice. Cf.Hoge v. Washburn, No. 2:23-cv-00128-JR, 2024 WL 580136, at *1 n.2 (D. Or. Feb. 12, 2024) (“The Court take[s] judicial notice of the pleadings filed in plaintiff's state habeas corpus action as submitted by defendants in response to plaintiff's motion.” (citing Coultas v. Payne, No. 3:11-cv-45-AC, 2015 WL 5920645, at *3 (D. Or. Oct. 9, 2015))). In their motion, the State Defendants acknowledge Flores' allegations from both the first amended complaint and the supplemental complaint. Accordingly, the Court considers the allegations in both documents for the purpose of the instant motion. However, if Flores elects to file a second amended complaint, he must include all pertinent facts in one document, attaching any relevant exhibits. See FED. R. CIV. P. 15(d) (explaining the requirements for supplemental pleadings).
Flores alleges that he received inadequate medical care while in ODOC's custody at Two Rivers Correctional Institution (“TRCI”). Flores has a documented history of high blood pressure and asthma. (FAC Ex. 2 at 3-5.) In March 2020, Flores began suffering from flu-like symptoms, including a sore throat and coughing up blood. (FAC at 5.) On March 23, 2020, Quick examined Flores and took Flores' blood pressure, which measured high. (Id.) Quick recommended that Flores purchase allergy medication from commissary-which he did-and Flores returned to his cell. (Id.) On March 27, 2020, Flores reported worsening symptoms. (Id.) No one responded to his concerns. (Id.) Two days later, Flores filed a grievance. (Id.) Falstich, Zavala, Dewsnup, Johnston, and Bugher responded to the grievance at different levels of administrative appeal, sending Flores the final response on November 5, 2020. (FAC Ex. 4 at 4-5.) Flores' wife reported Flores' need for medical care to Ninman. (FAC at 5.)
Four days later, Ortiz and Maney treated Flores. (FAC Ex. 4 at 3.) Flores received an x-ray of his lungs and a blood pressure check. (FAC at 5.) Medical personnel diagnosed Flores with pneumonia. (Id.) By April 1, 2020, Flores' symptoms continued to worsen. (Id. at 6.) He requested a COVID-19 (“COVID”) test and his albuterol inhaler. (Id.) Quick denied both requests and informed Flores that he did not have COVID. (Id.) Flores was told both that he had pneumonia and also that he did not have pneumonia. (Id.) At some point, Flores received a prescription antibiotic to treat pneumonia. (Id.) Flores filed another grievance. (Id.) He also wrote a letter to Ninman, reporting “his vulnerability” and the lack of medical care, and wrote to Peters and Steward asking for help. (Id.; FAC Ex. 4 at 4.) Gower wrote back to Flores in response. (FAC Ex. 4 at 4.)
On April 6, 2020, Flores had an appointment with Quick. (FAC at 6.) Flores' symptoms had improved slightly, but he was still coughing, had difficulty breathing, and his blood pressure was high. (Id.) Flores returned to his cell without receiving treatment. (Id.) On April 9, 2020, Flores reported that he continued to suffer from coughing, difficulty breathing, and high blood pressure. (Id. at 7.) J. Peterson measured Flores' blood pressure, which read high. (Id.; FAC Ex. 4 at 1.) J. Peterson referred Flores “for blood pressure monitoring and for a follow up with a provider. (FAC at 7.) Despite multiple requests in March and April 2020, Flores never received a COVID test. (Id. at 5-7.)
Between April 12 and May 10, 2020, Ortiz, Ah yat, Garrett, Berg, Thurmond, Rhodes, and Royer (among other non-State Defendants) checked Flores' blood pressure several times, each time measuring high. (Id. at 7; FAC Ex. 4 at 3.) Sims, who is not a State Defendant, examined Flores on April 28, 2020. (FAC at 7.) Flores reported to Sims that he had been denied his albuterol inhaler. (Id.) Sims prescribed him albuterol and Arnuity Ellipta and ordered further blood pressure monitoring. (Id.) Flores did not receive his albuterol inhaler until May 9, 2020. (Id.) Because Flores did not receive an albuterol inhaler for that period, he suffered “further damage.” (Id.)
In June 2020, Flores filed another grievance. (FAC Ex. 4 at 5.) Aguiar and Bugher responded to the grievance, sending Flores the final determination on January 7, 2021. (Id.) Flores suggests that he continued to request care and received inadequate attention from Thurmond, Rumsey, Quick, Aguiar, Henderson, Coleman, Walker, Bradshaw, Palmer, Rhodes, Hazen, Gulik, Maney, Dewsnup, C. Peterson, J. Peterson, Walsborn, and Scott through May 2021. (Id. at 1-2.)
Flores filed a petition for habeas corpus against Blewett, the superintendent of TRCI, alleging violations of the Eighth Amendment and the Oregon Constitution pursuant to Oregon Revised Statutes § 34.310 et seq. (See FAC at 2; FAC Ex. 2, attaching Findings of Fact and Conclusions of Law and General Judgment, Flores v. Blewett, No. 20-cv-15644 (Umatilla Cnty. May 18, 2021).) In March 2021, the Umatilla County Circuit Court held a trial. (FAC Ex. 2 at 1.) Flores, Maney, and a medical expert testified. (Id. at 2.)
In May 2021, the court issued its opinion and found that, for the preceding year, Flores' blood pressure readings showed “a significantly elevated diastolic level[.]” (Id. at 3.) Although an ODOC medical provider had “ordered twice-weekly blood pressure checks for at least 6 months” in April 2020, “Defendant consistently did not follow its own orders[.]” (Id. at 4.) The court took note of the unexpected burden of COVID on TRCI's medical facility but explained that ODOC never followed its own orders and medical recommendations, even after the initial weeks of the COVID pandemic. (Id. at 7.) When Flores did receive blood pressure checks, they often showed elevated readings, and Flores did not receive follow up care. (Id. at 4.) As a result, Flores suffered eye problems and headaches, “which may be related to or exacerbated by his untreated hypertension[.]” (Id.) Maney conceded that Flores' hypertension had not been correctly managed. (Id.) Maney admitted that Flores should have received greater monitoring and treatment, that Flores should have received a special needs assessment, and that his chest x-ray was delayed. (Id.)
The court further found that Flores likely contracted COVID in spring 2020. (Id. at 5.) Previously, Flores had been able to run approximately three miles but is no longer able to. (Id.) Before March 2020, Flores' prescription inhaler would last for 120 days or longer. (Id.) After March 2020, Flores required use of his inhaler more often because of “his lung condition[.]” (Id.) His inhaler prescription recommended use of two puffs at a time, up to four times per day. (Id.) At that rate, the inhaler would last approximately twenty-five days. (Id.) However, ODOC limited his inhaler refills to once every 120 days. (Id.) Further, no one had performed “peak flow monitoring tests on [Flores] to evaluate his lung performance” and the “pulmonary evaluation performed shortly before trial did not meet the standard of care[.]” (Id. at 6.)
The court concluded that hypertension and asthma are serious medical conditions. (Id. at 4-5.) The court noted that, to obtain state habeas corpus relief, a plaintiff must show ongoing unlawful acts at the time the claim is adjudicated. (Id. at 7, citing Woodroffe v. Nooth, 308 P.3d 225 (Or. Ct. App. 2013).) The court concluded that Flores had demonstrated Blewett's (i.e., TRCI's superintendent) continued deliberate indifference to Flores' serious medical conditions because, at the time of the trial, Flores continued to receive inadequate medical care. (Id. at 6-8.) The court ordered injunctive relief because Blewett continued to violate the Eighth Amendment. (Id. at 8-9.) The court ordered evaluation, management, and frequent monitoring of Flores' hypertension, including referral to an ophthalmologist, pulmonary tests, “provision of a medically adequate supply of albuterol inhalers, including one for back-up,” and that Blewett and his agents are prohibited from retaliating against Flores for reporting symptoms or seeking redress from the court. (Id.) The court retained jurisdiction to ensure compliance with the order. (Id. at 9.)
In fall 2022, Flores did not receive his prescribed albuterol inhaler for “weeks.” (Supp. Compl. at 5.) On February 13, 2023, Flores suffered from slurred speech, a headache, confusion, and his face felt “puffy.” (Id. at 6.) As a result, he missed the morning medication line. (Id.) When he subsequently reported to work, his supervisor requested Flores' hypertension medication from medical, but the request was denied. (Id.) At the noon medication line, Melise refused to give Flores his hypertension medication. (Id.) That afternoon, New took Flores' blood pressure reading, which measured “dangerously high” at 163/115. (Id.) New told Flores that his blood pressure was “normal” and “sent him away” without further treatment or follow up. (Id.) On March 1, 2023, Flores had an appointment with Wilson. (Id.) Flores reported his symptoms from February 13 and his lack of treatment. (Id.) Wilson told Flores that it was likely a Transient Ischemic Attack, or a mini stroke, and that it was “no big deal.” (Id.) Flores also alleges a respiratory event on April 14, 2023, where he was “short of breath, hypoxic[,] and suffocating[.]” (Id. at 7.)
Flores filed a motion for enforcement of compliance in his state habeas case. (Id. at 5.) Flores had not received an ophthalmology evaluation to determine the damage from Flores' untreated hypertension to his eyes and his hypertension remained uncontrolled. (Id.) On September 7, 2023, the state court held a hearing and deemed Blewett “out of compliance” with the original order. (Id.) The court ordered Blewett to refer Flores to a neurologist, an ophthalmologist, and to get durable control of Flores' hypertension. (Id. at 6-7.)
On March 30, 2023, Flores filed a complaint in this Court. (See Compl., ECF No. 1.) He subsequently filed a first amended complaint and a supplemental complaint. (See FAC; Supp. Compl.) Flores alleges violations of the Eighth and Fourteenth Amendments and claims of intentional infliction of emotional and physical harm. (FAC at 8-9; Supp. Compl. at 7-8.) Flores alleges that all defendants acted with deliberate indifference to his hypertension, asthma, refractory pulmonary dysfunction, and need for an albuterol “rescue” inhaler. (FAC at 8-9; Pl.'s Trial Mem., Flores v. Reyes, No. 20-cv-15644 (Umatilla Cnty. Mar. 12, 2021).) Flores also alleges that the defendants acted with deliberate indifference to his stroke-like symptoms, the respiratory event on April 14, 2023, his need for an ophthalmologist, and his need for durable control over his hypertension. (Supp. Compl. at 7-8.) Flores requests economic and noneconomic damages, punitive damages, declaratory relief, and injunctive relief. (FAC at 9-10; Supp. Compl. at 8-9.)
LEGAL STANDARDS
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b), a plaintiff's “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) (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.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (simplified).
“Pro se pleadings are held to a less stringent standard than those drafted by lawyers.” Graves v. Nw. Priority Credit Union, No. 3:20-cv-00770-JR, 2020 WL 8085140, at *2 (D. Or. Dec. 12, 2020) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). “In cases involving a [selfrepresented] plaintiff, the court construes the pleadings liberally and affords the plaintiff the benefit of any doubt.” Kali v. Bulk Handling Sys., No. 6:18-cv-02010-AA, 2019 WL 1810966, at *4 (D. Or. Apr. 23, 2019) (citing Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)).
“The court, in many circumstances, instructs the [self-represented] litigant regarding deficiencies in the complaint and grants leave to amend.” Graves, 2020 WL 8085140, at *2 (citing Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987)). “Nevertheless, a [selfrepresented] plaintiff's claims may be dismissed without leave to amend where it appears beyond doubt that the plaintiff can prove no set of facts that would entitle [the plaintiff] to relief.” Id. (citing Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008)).
DISCUSSION
The State Defendants argue that (1) Flores' claims are largely time barred, (2) sovereign immunity bars some of Flores' claims, and (3) Flores has failed to state a claim. (See Defs.' Mot. at 5-12.)
I. STATUTE OF LIMITATIONS
The State Defendants argue that, except for the allegations contained in Flores' supplemental complaint against Wilson, New, and Melise, Flores' claims are time barred. (Defs.' Mot. at 5-6.) The State Defendants argue that Flores' first amended complaint and state habeas petition only reference conduct from March and April 2020. (Id. at 5.) Because Flores did not file his original complaint until March 30, 2023, the State Defendants argue that any claim that accrued before March 30, 2021, is now barred. (Id. at 6.) Flores responds that his claims are not time barred because he bases his claims on conduct that was continuous through the time of the original order in his state habeas corpus case, i.e., May 18, 2021. (Pl.'s Resp. Defs.' Mot. Dismiss (“Pl.'s Resp.”) at 1-2, ECF No. 65.) Further, Flores argues that the statute of limitations does not begin to run until after his exhaustion of administrative remedies. (Id.)
A. Applicable Law
Section 1983 contains no specific statute of limitations, and therefore federal courts apply the forum state's statute of limitations for personal injury actions. See Bird v. Dep't of Hum. Servs., 935 F.3d 738, 743 (9th Cir. 2019). In Oregon, the applicable statute of limitations for a Section 1983 action is two years from the date upon which the cause of action accrues. See Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); see also OR. REV. STAT. § 12.110(1) (“An action . . . for any injury for the person or rights of another, not arising on contract, and not specifically enumerated in this chapter, shall be commenced within two years[.]”).
“Although ‘state law determines the length of the limitations period, federal law determines when a civil rights claim accrues.'” Bonelli v. Grand Canyon Univ., 28 F.4th 948, 952 (9th Cir. 2022) (quoting Bird, 935 F.3d at 743). Under federal law, a claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Id. (quoting Lukovsky v. City & Cnty. of S.F., 535 F.3d 1044, 1048 (9th Cir. 2008)). “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when the running of the statute is apparent on the face of the complaint.” Samuelson v. Jewell Sch. Dist. 8, No. 3:22-cv-1923-SI, 2024 WL 1286539, at *13 (D. Or. Mar. 26, 2024) (quoting Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)).
“The continuing violations doctrine functions as an exception to the discovery rule of accrual ‘allowing a plaintiff to seek relief for events outside of the limitations period.'” Bird, 935 F.3d at 746 (quoting Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001)). “[A]n important purpose of the continuing violation doctrine is to prevent a defendant from using its earlier illegal conduct to avoid liability for later illegal conduct of the same sort.” O'Loghlin v. Cnty. of Orange, 229 F.3d 871, 875 (9th Cir. 2000). “Historically, the Ninth Circuit recognized two applications of the continuing violations doctrine: (1) to ‘a series of related acts, one or more of which falls within the limitations period' (known as the serial acts branch), and (2) to ‘the maintenance of a discriminatory system both before and during [the limitations] period' (known as the systematic branch).” Evans v. Nelson, No. 2:19-cv-01210-MK, 2022 WL 20335877, at *9 (D. Or. Sept. 7, 2022) (quoting Bird, 935 F.3d at 746), findings and recommendation adopted, 2023 WL 4490515 (D. Or. July 12, 2023). Under the serial acts branch, the plaintiff must “demonstrat[e] a series of related acts against a single individual” and “related closely enough to constitute a continuing violation.” Green v. L.A. Cnty. Superintendent of Schs., 883 F.2d 1472, 1480-81 (9th Cir. 1989) (citation omitted); see also Herrington v. Bristol, No. 2:16-cv-00680-AC, 2019 WL 7598855, at *15 (D. Or. July 29, 2019) (“[E]ach defendant's conduct is separately evaluated to determine if that defendant engaged in a continuing pattern of violations.” (quoting Alexander v. Williams, No. 6:11-cv-06215-PK, 2013 WL 6180598, at *15 (D. Or. Nov. 25, 2013))), findings and recommendation adopted, 2020 WL 265192 (D. Or. Jan. 17, 2020), aff'd, No. 20-35288, 2022 WL 1421442 (9th Cir. May 5, 2022). The “mere continuing impact from past violations is not actionable” under the continuing violation doctrine. Knox, 260 F.3d at 1013 (simplified).
“However, the Supreme Court limited the continuing violation doctrine in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).” Evans, 2022 WL 20335877, at *9; see also Tsur v. Intel Corp., No. 3:21-cv-655-SI, 2021 WL 4721057, at *3 (D. Or. Oct. 8, 2021) (so explaining). “The Court held that ‘discrete . . . acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges' because ‘[e]ach discrete . . . act starts a new clock for filing charges alleging that act.'” Bird, 935 F.3d at 747 (quoting National R.R. Passenger Corp., 536 U.S. at 113). Accordingly, “little remains of the continuing violations doctrine.” Id. at 748. “Except for a limited exception for hostile work environment claims-not at issue here-the serial acts branch is virtually non-existent.” Id.
After a claim accrues, an AIC is entitled to tolling of the statute of limitations while the AIC actively exhausts administrative remedies pursuant to the Prison Litigation Reform Act. See Soto v. Sweetman, 882 F.3d 865, 875 (9th Cir. 2018) (“[The plaintiff] is entitled to tolling while he was actively exhausting his remedies[.]”).
B. Analysis
The Court analyses each defendant's conduct separately. See Herrington, 2019 WL 7598855, at *15 (explaining that, under the continuing violations doctrine, “[e]ach defendant's conduct is separately evaluated to determine if that defendant engaged in a continuing pattern of violations” (quoting Alexander, 2013 WL 6180598, at *15)). Flores does not allege any specific actions attributed to Brown, Peters, Steward, Bugher, Rumsey, Ortiz, Ah yat, Garrett, Berg, Royer, Dewsnup, Johnston, Quick, Palmer, Louisiana, Gower, Thurmond, Coleman, Walker, Dieter, Hazen, Gulik, Falstich, Zavala, Aguiar, Johnson, C. Peterson, Battle, Beamer, Davies, Drollinger, Roberts, Koznek, Faria, Hanson, or Ninman within the limitations period. Although Flores accurately points out that exhaustion of administrative remedies tolls the statute of limitations, Flores pleads that he had exhausted all administrative remedies by January 7, 2021, at the latest. (See FAC Ex. 4 at 5.) Thus, any claims tolled by Flores' administrative exhaustion are nonetheless untimely raised in his March 30, 2023, complaint.
Flores has not cited, and the Court has not located, any authority suggesting that the pendency of Flores' state habeas case otherwise tolled the statute of limitations.
The State Defendants argue that Flores' claims “stem[] from his state habeas case” which was “filed on April 20, 2020.” (Defs.' Mot. at 5.) Thus, according to the State Defendants, the only relevant events are from March and April 2020, and all claims from the first amended complaint are time barred. (Id.) The Court disagrees with the State Defendants' assertion that Flores' claims are limited to events in March and April 2020. Flores alleges that he continued to receive inadequate care through May 2021 and beyond. (See FAC Ex. 2 at 7, explaining that ODOC “never followed its own orders and medical recommendations”; see also FAC Ex. 4 at 2.) For example, Flores appears to allege inadequate medical care by Maney, Scott, J. Peterson, Rhodes, Walsborn, Henderson, and Bradshaw in April 2021. (FAC Ex. 4 at 2.) Flores' claims based on events from March 30, 2021, onward are not time barred. However, his claims based on pre-March 30, 2021 events are time barred because Flores has not alleged a series of acts related closely enough to constitute a continuing violation by any of those State Defendants individually. See Herrington v. Bristol, No. 20-35288, 2022 WL 1421442, at *1 (9th Cir. May 5, 2022) (“The mere fact that the testing and treatment decisions were related to the same medical condition does not establish a continuing violation.” (citing, inter alia, Bird, 935 F.3d at 748)).
Blewett was a party to Flores' state habeas case (see FAC Ex. 2 at 1), but as discussed further herein Flores has failed to allege Blewett's personal participation in any unlawful conduct.
Accordingly, the Court recommends that the district judge dismiss Flores' claims against Brown, Peters, Steward, Bugher, Rumsey, Ortiz, Ah yat, Garrett, Berg, Royer, Dewsnup, Johnston, Quick, Palmer, Louisiana, Gower, Thurmond, Coleman, Walker, Dieter, Hazen, Gulik, Falstich, Zavala, Aguiar, Johnson, C. Peterson, Battle, Beamer, Davies, Drollinger, Roberts, Koznek, Faria, Hanson, and Ninman with leave to amend if Flores can plead claims against them based on events within the limitations period. The Court recommends that the district judge deny the State Defendants' motion to dismiss Flores' claims against Maney, Scott, J. Peterson, Rhodes, Walsborn, Henderson, Bradshaw, and Blewett to the extent Flores bases his claims on events within the statutory period, and the Court recommends that the district judge grant the State Defendants' motion to dismiss Flores' claims against those eight defendants based on his medical care before March 30, 2021. See Cal. Ass'n for the Pres. of Gamefowl v. Cnty. of Stanislaus, No. 1:20-cv-01294-DAD-SAB, 2022 WL 358430, at *4 (E.D. Cal. Feb. 7, 2022) (granting the defendant's motion to dismiss the plaintiff's Section 1983 claims based on the statute of limitations with leave to amend so long as the plaintiff “can do so in good faith”); Monical v. Jackson Cnty., No. 1:17-cv-00476-YY, 2021 WL 1110197, at *6 (D. Or. Mar. 23, 2021) (concluding that the plaintiff had only alleged discrete acts in his Eighth Amendment claim and that the continuing violations doctrine did not apply); Ramachandran v. City of LosAltos, 359 F.Supp.3d 801, 813 (N.D. Cal. 2019) (granting the defendants' motion to dismiss the plaintiff's Section 1983 claims against three of the defendants based on the statute of limitations, over the plaintiff's invocation of the continuing violations doctrine, with leave to amend); Singhv. Washburn, No. 2:14-cv-01477-SB, 2016 WL 1039705, at *6 (D. Or. Feb. 5, 2016) (dismissing the plaintiff's Eighth Amendment claim based on exposure to toxic mold because the plaintiff had not alleged any exposure during the two-year statutory period), findings and recommendation adopted, 2016 WL 1045523 (D. Or. Mar. 15, 2016); cf. Evans, 2022 WL 20335877, at *10 (granting summary judgment on the plaintiff's Eighth Amendment claim based on the two-year statute of limitations in favor of one defendant where the plaintiff made no allegations of a constitutional violation within the two-year period but denying summary judgment where the plaintiff alleged another defendant's unconstitutional conduct within the two-year period); Herrington, 2019 WL 7598855, at *16-17 (granting summary judgment in favor of three defendants where “the most recent act alleged against [a defendant] is the inability to diagnose the condition” prior to the limitations period and “[t]hus, the requirement that at least one act must occur during the limitations period for the continuing violation doctrine to apply is not met”).
As discussed below, the Court nonetheless recommends dismissal of claims against those State Defendants for failure to state a claim.
If Flores files a second amended complaint, the Court notes that Flores may reference events from before the limitations period to the extent that they are relevant and informative of Flores' ongoing medical conditions and what individual defendants knew about his medical needs, so long as they do not form the basis for his claims. See, e.g., Stewart v. Aranas, 32 F.4th 1192, 1194 (9th Cir. 2022) (summarizing approximately three years of the plaintiff's medical history).
II. ELEVENTH AMENDMENT
The State Defendants argue that the Eleventh Amendment bars Flores' claims against ODOC. (Defs.' Mot. at 6-7.) The State Defendants also argue that the Eleventh Amendment bars Flores' state law claims. (Id. at 7.)
The State Defendants also ask for dismissal of Flores' claims “to the extent they are made against [the] State of Oregon.” (Defs.' Mot. at 7.) Flores has not named the State of Oregon as a defendant. (See generally FAC.)
A. Claims Against ODOC
“The Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state.” Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). Accordingly, “agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court.” Brown v. Cal. Dep't of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (citation omitted); see also Sato v. Orange Cnty. Dep't of Educ., 861 F.3d 923, 928 (9th Cir. 2017) (noting that state agencies' immunity in federal court from suits for private damages or injunctive relief “is well established”) (citation omitted).
Section 1983 permits suit against “persons,” which the U.S. Supreme Court has construed to mean “state officials sued in their individual capacities[.]” Hafer v. Melo, 502 U.S. 21, 23 (1991). “State agencies . . . are not ‘persons' within the meaning of § 1983, and are therefore not amenable to suit under that statute.” Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989)). Similarly, “[e]ven though the Oregon Tort Claims Act is a waiver of sovereign immunity, it does not waive Eleventh Amendment immunity.” Olson v. Allen, No. 3:18-cv-001208-SB, 2019 WL 1232834, at *5 n.3 (D. Or. Mar. 15, 2019) (quoting Ross v. Shelton, 2:18-cv-00045-YY, 2019 WL 846043, at *7 (D. Or. Feb. 21, 2019)).
The Court concludes that ODOC is immune from suit under the Eleventh Amendment, and neither Section 1983 nor the Oregon Tort Claims Act abrogate that immunity. The Court therefore recommends that the district judge grant the State Defendants' motion to dismiss Flores' claims against ODOC without leave to amend. See Flores v. Or. Dep't of Corr., No. 2:22-cv-01399-SB, 2023 WL 7280420, at *3 (D. Or. Nov. 3, 2023) (dismissing Flores' claims against ODOC pursuant to the Eleventh Amendment without leave to amend); Harpole v. Boston, No. 2:22-cv-01033-HZ, 2023 WL 5806250, at *4 n.3 (D. Or. Sept. 4, 2023) (concluding that “[a]s an arm of the state, ODOC is immune from suit in federal court for claims brought under state law”) (citation omitted).
B. State Law Claims
“[F]ederal courts lack[] jurisdiction to enjoin . . . state officials on the basis of . . . state law” absent a waiver of sovereign immunity. Pennhurst, 465 U.S. at 124-25; see also Johnson v. Brown, 567 F.Supp.3d 1230, 1257 (D. Or. 2021) (“The Eleventh Amendment bars federal courts from providing forward-looking relief against a state official based on state law.” (citing Pennhurst, 465 U.S. at 106)). The Eleventh Amendment “does not bar claims seeking prospective injunctive relief against state officials to remedy a state's ongoing violation of federal law.” Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 865 (9th Cir. 2016) (emphasis added) (citing, inter alia, Ex Parte Young, 209 U.S. 123, 149-56 (1908)). The Ninth Circuit has also “held that the Eleventh Amendment would not bar . . . pendent state claims seeking damages against a state official acting personally.” Ashker v. Cal. Dep't of Corr., 112 F.3d 392, 394-95 (9th Cir. 1997) (citing Pena v. Gardner, 976 F.2d 469, 472-74 (9th Cir. 1992)); see also Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (“The Eleventh Amendment bars claims for damages against a state official acting in his or her official capacity. It does not, however, bar claims for damages against state officials in their personal capacities.”) (citations omitted).
Here, Flores raises four claims in his first amended complaint and four additional claims in his supplemental complaint. (See FAC at 8-9; Supp. Compl. at 7-8.) For each claim, Flores alleges a violation of the Eighth Amendment, Fourteenth Amendment, and state law. (FAC at 89; Supp. Compl. at 7-8.) Flores seeks economic, non-economic, and punitive damages. (FAC at 9; Supp. Compl. at 8.) In addition, Flores seeks (i) injunctive relief prohibiting all defendants from retaliating against him and ordering Defendants to follow community standards of care set by the American College of Cardiology and the American Heart Association and (ii) declaratory relief finding that ODOC's policy restricting his albuterol to one refill every 120 days violates the Eighth Amendment and that ODOC's “policy of blood pressure control of at or below 140/90 is unconstitutional and does not meet the community standard of care.” (FAC at 9-10; Supp. Compl. at 9.)
To the extent that Flores seeks any injunctive relief pursuant to his state law claims alone, the Court agrees that sovereign immunity applies. However, none of Flores' claims arise under state law alone, and the Eleventh Amendment does not bar Flores' request for damages on his state law claims, nor his request for injunctive relief on his Eighth Amendment claims. (See FAC at 1, naming defendants in both their individual capacities and their official capacities “where/or if applicable”); see Doe v. Regents of the Univ. of Cal., 891 F.3d 1147, 1153 (9th Cir. 2018) (“Under the Ex parte Young exception to that Eleventh Amendment bar, a party may seek prospective injunctive relief against an individual state officer in her official capacity.” (citing Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000))); Ashker, 112 F.3d at 394-95 (explaining that the Eleventh Amendment does not bar individual capacity state law claims for damages); Mitchell, 818 F.3d at 442 (same). Thus, the Court recommends that the district judge deny the State Defendants' motion to dismiss Flores' state law claims on Eleventh Amendment grounds.
The State Defendants do not argue that the Younger abstention doctrine applies.
The Court nonetheless recommends dismissal of Flores' state law claims for failure to state a claim, as discussed below.
III. FAILURE TO STATE A CLAIM
A. Fourteenth Amendment
The State Defendants argue that the Court must dismiss Flores' Fourteenth Amendment claims alleging Defendants' deliberate indifference to his medical needs because Flores was not a pretrial detainee at any relevant time and because Flores has failed to state substantive due process claims. (Defs.' Mot. at 7-8.) Flores concedes that the Court should dismiss his Fourteenth Amendment claims. (See Pl.'s Resp. at 2.)
Accordingly, the Court recommends that the district judge dismiss Flores' Fourteenth Amendment claims. SeeCity of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (explaining that the Fourteenth Amendment provides the applicable standard for evaluating the medical care of pretrial detainees, while the Eighth Amendment provides the applicable standard for evaluating the medical care of AICs who have already been convicted).
B. Eighth Amendment
The State Defendants argue that the Court should dismiss Flores' Eighth Amendment claims because Flores has failed to allege each defendant's personal involvement in a constitutional violation. (Defs.' Mot. at 8-12.) Further, the State Defendants argue that Flores has not alleged that each defendant caused him harm. (Id.)
1. Applicable Law
To establish an Eighth Amendment claim, a plaintiff must demonstrate (1) an “objectively, sufficiently serious” deprivation and (2) that the defendants acted with a “sufficiently culpable state of mind,” i.e., “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (simplified). To recover damages, “plaintiffs alleging deliberate indifference must also demonstrate that the defendants' actions were both an actual and proximate cause of their injuries.” Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (citation omitted); see alsoWilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (“The second [Eighth Amendment] prong requires showing: (a) a purposeful act or failure to respond to a[n AIC]'s pain or possible medical need and (b) harm caused by the indifference.” (quoting Jettv. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006))); White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990) (explaining that a defendant's “conduct is an actual cause of [the plaintiff's] injury only if the injury would not have occurred ‘but for' that conduct” and a defendant's “conduct is not the proximate cause of [the plaintiff]'s alleged injuries if another cause intervenes and supersedes [the defendant's] liability for the subsequent events”) (citations omitted). “To establish a claim of deliberate indifference arising from delay in providing care, a plaintiff must show that the delay was harmful.” Reece v. Traquina, No. 2:10-cv-2949 JAM DAD, 2014 WL 1573036, at *4 (E.D. Cal. Apr. 18, 2014) (citing, inter alia, Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002)), aff'd, 639 Fed.Appx. 442 (9th Cir. 2016).
An official may be liable under Section 1983 “when culpable action, or inaction, is directly attributed to them.” Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). “A defendant may be held liable as a supervisor under § 1983 ‘if there exists either (1) [the defendant's] personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'” Id. at 1207 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). “The requisite causal connection can be established by setting in motion a series of acts by others, or by knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury.” Id. at 1207-08 (simplified). “[A] plaintiff may state a claim against a supervisor for deliberate indifference based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her subordinates.” Id. at 1207.
2. Analysis
The State Defendants argue that Flores has not alleged that each defendant personally participated in the deprivation of his rights. (Defs.' Mot. at 10-11.) Flores responds that all defendants were aware of his serious medical needs and “allowed the deprivations to continue.” (Pl.'s Resp. at 3.)
Although Flores has pled generally some of the State Defendants' involvement in his medical treatment within the limitations period (Maney, Scott, J. Peterson, Rhodes, Walsborn, Henderson, and Bradshaw), he has focused his pleadings on events from March and April 2020. His allegations in the first amended complaint related to events within the limitations period are vague, and the exact nature of the State Defendants' participation is unclear. For example, Flores notes “Cardio/Pulmonary” with Maney and J. Peterson on April 7, 2021, and “Optical” with Henderson the next day. (FAC Ex. 4 at 2.) Flores also notes that Rhodes was “Not Following Court Order for Bp/Pulmonary.” (Id.) The Court concludes that these brief notations fail to state a claim to relief that is plausible on its face against Maney, Scott, J. Peterson, Rhodes, Walsborn, Henderson, and Bradshaw. Further, Flores' pleadings indicate that the state court found in Flores' favor in his state habeas corpus case against Blewett (see generally FAC Ex. 2), but Flores has not specified in his pleadings any facts suggesting Blewett's personal involvement in an alleged constitutional violation. The Court therefore recommends that the district judge dismiss with leave to amend Flores' Eighth Amendment claims against Maney, Scott, J.
Neither party argues that the doctrines of claim or issue preclusion apply.
Peterson, Rhodes, Walsborn, Henderson, Bradshaw, and Blewett. See Swanson v. Dep't of Just., No. 6:22-cv-01304-MK, 2022 WL 19693710, at *3 (D. Or. Dec. 13, 2022) (dismissing the self-represented litigant's complaint where the plaintiff “failed to describe facts sufficient to demonstrate [two defendants'] personal involvement in a specific constitutional or statutory violation”), findings and recommendation adopted, 2023 WL 3168696 (D. Or. Apr. 28, 2023); Makoni v. Schroeder, No. 16-cv-2497-BEN (PCL), 2017 WL 818467, at *5 (S.D. Cal. Feb. 28, 2017) (“Plaintiff has not stated a[n Eighth Amendment] claim against [the defendant] because he has failed to allege facts regarding what actions were taken or not taken by the Defendant which caused the alleged constitutional violations.”) (citation omitted); Herrera v. Nguyen, No. 1:12 cv-01915 GSA PC, 2013 WL 1364691, at *2 (E.D. Cal. Apr. 3, 2013) (dismissing the plaintiff's Eighth Amendment claim regarding his treatment for high blood pressure and explaining that “the Court finds Plaintiff's allegations to be vague” where the plaintiff “sets forth generalized allegations regarding his health care, and identifies [the defendant]” but did not “describe what each defendant . . . did to violate the particular right”).
For similar reasons, the Court also recommends that the district judge dismiss Flores' state law claims for failure to state a claim. SeeDelaney v. Clifton, 41 P.3d 1099, 1106 (Or. Ct. App. 2002) (“To state a claim for intentional infliction of emotional distress, a plaintiff must allege 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.'” (quoting McGanty v. Staudenraus, 901 P.2d 841, 849 (Or. 1995))).
Defendants separately argue that Flores' claims in his supplemental complaint against Melise, New, and Wilson fail as a matter of law. (Defs.' Mot. at 11-12.) In his supplemental complaint, Flores alleges claims based on the lack of care he received in relation to his strokelike symptoms (Claim 1), a respiratory event on April 14, 2023 (Claim 2), failure to refer Flores to an ophthalmologist (Claim 3), and failure to achieve “durable control” over his hypertension (Claim 4). (Supp. Compl. at 7-8.) Flores seeks damages, declaratory relief, and injunctive relief. (Id. at 8-9.) Flores alleges that Melise refused to give him his hypertension medication, New told him that his blood pressure was normal and sent him away without treatment even though his blood pressure reading measured extremely high, and Wilson told him that a Transient Ischemic Attack was not a big deal and did not provide any further treatment. (Id. at 6.)
As to Claim 1, Flores has not alleged that Melise or New were aware of his mini-stroke or were otherwise personally involved in the response to his mini-stroke. Flores has not alleged that Wilson's failure to provide any further treatment caused him harm or, as to his request for injunctive relief, continues to put him at risk of harm. See Hass v. Cnty. of Sacramento Dep't of Support Servs., No. 2:13-cv-01746 JAM, 2014 WL 5035949, at *2 (E.D. Cal. Oct. 8, 2014) (“Actual injury-or a continuing risk of harm-is a necessary element of a . . . claim.” (citing, inter alia, Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166 (1993))). Although Flores alleges a respiratory event approximately two months after the mini- stroke, Flores has not alleged that the two conditions are related. The Court therefore recommends that the district judge dismiss Claim 1 with leave to amend. See Hernandez v. Paderes, 28 Fed.Appx. 728, 730 (9th Cir. 2002) (“Because no harm resulted from this alleged [conduct], no finding of deliberate indifference is possible.”) (citation omitted); Tucker v. Shepherd, No. 21-cv-00248-PHX-DGC-JFM, 2021 WL 2187018, at *3 (D. Ariz. May 28, 2021) (dismissing Eighth Amendment claim for money damages “because [the plaintiff] has not alleged he suffered any actual injury from Defendants[']” failure to act) (citations omitted); Jackson v. Pompan, No. 12-cv-6049-SI-PR, 2013 WL 1003603, at *3 (N.D. Cal. Mar. 13, 2013) (dismissing claim where “[t]he complaint does not suggest [the defendant]'s actions caused any actual harm”); Proffitt v. Redding Police Dep't, No. 06-cv-2144-FCD-KJM-P, 2007 WL 334265, at *3 (E.D. Cal. Jan. 31, 2007) (dismissing claim where the plaintiff failed to allege that defendants “harmed him or caused him unnecessary pain”).
As to Claim 2, Flores has not alleged Melise's, New's, Wilson's, or any other State Defendant's personal involvement in the April 14, 2023, respiratory event. The Court therefore recommends that the district judge dismiss Claim 2 with leave to amend.
As to Claim 3, Flores has not specified which State Defendant knew that Flores needed a referral to an ophthalmologist. Specifically, Flores has not alleged that Melise, New, or Wilson knew about his need for a referral and were deliberately indifferent to that need. The Court therefore recommends that the district judge dismiss Claim 3 with leave to amend.
As to Claim 4, Flores has not alleged that Wilson knew of his high blood pressure or failed to treat him. The Court therefore recommends that the district judge dismiss Claim 4 against Wilson with leave to amend.
Flores alleges that, after he missed medication line in the morning, he requested his prescribed blood pressure medication from Melise at the noon medication line and that Melise denied the request. Flores has not alleged that Melise knew that Flores had not received his medication that day, that Flores was suffering any symptoms, that Flores faced a serious risk of harm if he did not receive his medication for one afternoon, or that Flores suffered harm as a result. The Court concludes that Flores has failed to state a claim and recommends that the district judge dismiss Claim 4 against Melise with leave to amend. See Taylor v. Wuerth, No. 2:12-cv-01230 DAD P, 2014 WL 3895215, at *5 (E.D. Cal. Aug. 4, 2014) (dismissing the plaintiff's complaint with leave to amend where, although the “plaintiff alleges that [the defendant] ‘was well informed' at 6:00 a.m.... to release plaintiff from his cell to go to the medical care unit for a blood pressure check . . . and that [the defendant] failed to so release plaintiff between 6:00 a.m. and 8:00 a.m., the complaint alleges no facts from which [the defendant] could reasonably have inferred that the failure to promptly release plaintiff to the medical care unit during that two hour period posed a substantial risk of serious harm to plaintiff”); cf. Villaverde v. Aranas, No. 2:18-cv-00921-GMN-EJY, 2022 WL 943067, at *6 (D. Nev. Mar. 28, 2022) (“Plaintiff specifically claims that [the defendant] failed to respond to his requests for medical attention regarding his hypertension. Given Plaintiff's eye examination forms stating that he is a suspect for glaucoma, it is possible [that the defendant's] failure to respond could have caused Plaintiff to be a suspect for glaucoma.”) (citations omitted); Bond v. Knoll, No. EDCV 11-1929 PSG JC, 2014 WL 7076901, at *8 (C.D. Cal. Dec. 10, 2014) (granting summary judgment for the defendant, explaining that “[a]llegations that [the defendant] said nothing when plaintiff asked for medication on that date, even if true, do not raise a genuine dispute of material fact which suggests that . . . the defendant subjectively knew plaintiff faced a substantial risk of serious harm to his health at that moment much less purposefully ignored such risk”); Reece v. Traquina, No. 2:10-cv-2949 JAM DAD, 2014 WL 1573036, at *8 (E.D. Cal. Apr. 18, 2014) (granting summary judgment for the defendants where the “plaintiff ha[d] come forward with no evidence to show that his alleged inability to monitor his blood pressure on those dates was the actual or proximate cause of any injury which he suffered” (citing Leer v. Murphy, 844 F.2d 628 (9th Cir. 1988))), aff'd, 639 Fed.Appx. 442 (9th Cir. 2016).
Flores alleges that New measured his blood pressure at 163/115, told him that his blood pressure was normal, and sent him away without providing blood pressure medication or any other treatment. Flores has not alleged that New was aware that he had not received his blood pressure medication that day or that New's failure to provide treatment caused him harm. The Court concludes that Flores has failed to state a claim and recommends that the district judge dismiss Claim 4 against New with leave to amend. Cf. Johnson v. Cnty. of L.A., No. 2:22-cv-04968-SPG-GJS, 2023 WL 5504953, at *4 (C.D. Cal. Feb. 23, 2023) (denying, in part, the defendants' motion to dismiss where the AIC suffered from high blood pressure, repeatedly reported severe symptoms at the infirmary, the AIC's symptoms worsened, and “the FAC alleges that the . . . Defendants each ignored [the AIC's] needs and sent him ‘back to his cell without any referral to a specialist or monitoring his symptoms' or properly diagnosing and treating the symptoms that [the AIC] presented” and the AIC subsequently died) (citation omitted).
For similar reasons, the Court also recommends that the district judge dismiss Flores' state law claims against Wilson, Melise, and New for failure to state a claim. SeeDelaney, 41 P.3d at 1106 (“To state a claim for intentional infliction of emotional distress, a plaintiff must allege 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.'” (quoting McGanty, 901 P.2d at 849)).
The Court has held Plaintiff's motion for partial summary judgment in abeyance pending resolution of Defendants' motion to dismiss. (See ECF Nos. 40, 61.) The Court recommends that the district judge deny the motion as moot.
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Flores' motion for partial summary judgment (ECF No. 40) as moot and GRANT the State Defendants' motion to dismiss (ECF No. 58), as follows:
• GRANT WITHOUT LEAVE TO AMEND:
o the State Defendants' motion to dismiss Flores' claims against ODOC.
• GRANT WITH LEAVE TO AMEND:
o the State Defendants' motion to dismiss Flores' claims against all other State Defendants.
The Court further recommends that the district judge provide Flores thirty (30) days to file a second amended complaint, if he elects to do so. If Flores does not amend his complaint, the Court will dismiss without prejudice Flores' claims against the State Defendants.
Flores has not yet served Defendants D. Garin, T. Tarbet, Beata Sims, C. LeCloux, Sundstrom, R. Harmon, and Steven Evers.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.