United States District Court, D. Oregon
THOMAS M. COFFIN, Magistrate Judge.
Plaintiff, an inmate in the custody of the Oregon Department of Corrections filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging that defendant violated his rights under the Eighth Amendment by acting with deliberate indifference to his serious medical needs. Plaintiff further alleges that defendants retaliated against him for filing grievances against medical staff.
Defendants now move for summary judgment on the following grounds:
(1) claims are barred by the statute of limitation; (2) claims brought under 42 U.S.C. § 1983 must be based on an individual's personal involvement in depriving a constitutional right and cannot succeed under a respondeat superior theory; (3) Plaintiff's claims against defendants in their official capacity are barred by the Eleventh Amendment; (4) Defendants did not violate Plaintiff's Eighth Amendment rights; (5) Defendants did not violate Plaintiff's Fourteenth Amendment rights depriving him access to the courts; (6) Plaintiff's First Amendment retaliation claim is not valid and should be dismissed as a matter of law; and (7) Defendants are shielded from liability by the doctrine of qualified immunity."
Defendants' Motion for Summary Judgment (#66), p. 2.
The relevant facts are as follows. At all times relevant to his complaint, plaintiff was an inmate at EOCI, OSP, and OSP. Since September 200, plaintiff has had a series of health ailments which allegedly cause "debilitating, often intractable pain." Complaint (#3) p. 10. He has been under the care of a neurologist, an orthopedic surgeon, a neurosurgeon, a primary care physician and nurse practitioners all whom have allegedly determined that plaintiff suffers from conditions that require "effective and aggressive pain management." Id., p. 10-11. Plaintiff has been provided with numerous medications but plaintiff alleges those medications do not treat his underlying conditions. Plaintiff has consistently requested further diagnostic testing and surgery.
As noted above, plaintiff alleges that defendants have violated his rights under the Eighth Amendment by failing to provide him with adequate medical care and have retaliated against him for filing inmate grievances in violation of the First and Fourteenth Amendments.
Statute of limitations: Defendants argue that plaintiff's claims are barred by the 2 year statute of limitations applicable to actions under 42 U.S.C. § 1983 because plaintiff alleges that he has suffered from health ailments "since 2000." Defendants argue that plaintiff's claims therefore accrued in 2000.
Defendants argument is correct to the extent a 2 year statute of limitations applies to plaintiff's claims. Plaintiff filed his complaint on August 9, 2012. Thus any alleged conduct or incident that occurred prior to August 9, 2010, would be time barred. However, plaintiff has specifically alleged he was denied adequate treatment on November 16, 2010 [Complaint (33) p. 13], and after his surgery on December 5, 2011. Plaintiff further alleges that his requests for "more comprehensive pain management" were denied "[t]hroughout 2011." Id. p. 14. Plaintiff alleges he filed grievances on July 5, 2010, May 22, 2011, and December 19, 2011, and his transfer to OSP on December 2, 2010 was in retaliation for filing those grievances.
Thus, although any incident or conduct prior to August actionable conduct within the limitations period.
Respondeat superior : Plaintiff apparently seeks to hold defendants Premo, Gower, and Courtney liable under a theory of respondeat superior.
It is well settled that respondeat superior is not a proper basis for liability under 42 U.S.C. § 1983. Monell v. Dept. of Social Services of City of New York , 436 U.S. 658, 691-694 (1978); Rizzo v. Goode , 423 U.S. 362, 375-76 (1976); King v. Atiyeh , 814 F.2d 565, 568 (9th Cir. 1987). To establish a § 1983 claim against an individual defendant, a plaintiff must establish personal participation by the defendant in the alleged constitutional deprivation. Ashcroft v. Iqbab , 129 S.Ct. 1937 (2009).
A "supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989), citing Ybarra v. Reno Thunderbird Mobile Home Village , 723 F.2d 675, 680-81 (9th Cir. 1984). See also, Shaw v. Stroud , 13 F.3d 791, 799 (4th Cir. 1994) (supervisory liability only when a) actual or constructive knowledge of a pervasive and unreasonable risk of injury; b) deliberate indifference to or tacit authorization of the practice; and c) an affirmative causal link between inaction and the injury). Supervisory officials may also be liable if they "implement a policy so deficient that the policy itself is a repudiation of constitutional rights' and is the moving force of the constitutional violation.'" Redman v. County of San Diego , 924 F.2d 1435, 1446 (9th Cir. 1991), cert. denied, 112 S.Ct. 972 (1992).
Plaintiff has not alleged any facts that would establish defendants Premo, Gower or Coursey personally participated in the alleged conduct he complains of or any facts ...