United States District Court, D. Oregon
Wayne D. Landsverk, Michael Mohr, MILLER NASH LLP, Portland, Oregon, Attorneys for Plaintiff.
Ellen F. Rosenblum, ATTORNEY GENERAL, Michael R. Washington, SENIOR ASSISTANT ATTORNEY GENERAL, Department of Justice, Salem, Oregon, Attorneys for Defendant.
ORDER & OPINION
MARCO A. HERNANDEZ, District Judge.
Plaintiff Timothy Hatfield brings this 42 U.S.C. § 1983 action against the Oregon Department of Corrections and Lieutenant Rochelle Frost alleging a violation of his Eighth Amendment rights. His claim arises from an injury he sustained when he was ordered to move to a top bunk, despite medical conditions allegedly requiring a restriction to a bottom bunk.
Defendants move for summary judgment. At the time Defendants filed their motion, this case was assigned to Magistrate Judge Acosta who issued a Findings & Recommendation  on May 9, 2013, recommending that Defendants' motion be granted. In a September 23, 2013 Order , I declined to adopt the Findings & Recommendation. While I agreed with Judge Acosta that the Oregon Department of Corrections as a state agency could not be sued in this action because of Eleventh Amendment immunity, I disagreed with Judge Acosta that Eleventh Amendment immunity extended to the individual Defendant Frost. I also disagreed with his conclusion that on the merits, Plaintiff's claim failed as a matter of law.
As indicated in my September 23, 2013 Order, I had volunteer counsel appointed for Plaintiff who had been proceeding pro se. I allowed supplemental briefing by both parties and had the case reassigned to my chambers. Now, having considered the original motion and the briefing before Judge Acosta, as well as the supplemental briefing, I deny the summary judgment motion because when the facts are construed in favor of the non-moving party, they are capable of supporting Plaintiff's claim.
In February 2012, Plaintiff was incarcerated at the Deer Ridge Correctional Institution (DRCI). Before his October 2006 incarceration, he suffered more than one knee injury to his right knee, severely limiting his ability to bend that knee. Pl.'s Decl.  at ¶ 1. As a result, he cannot safely climb ladders, including bunk bed ladders. Id . His history of injuries causes him to walk with a visually apparent limp. Id . at ¶ 2. Plaintiff weighs approximately 330 pounds and this, combined with his right knee injury, has caused "significant wear-and-tear" to his left knee. Id . at ¶ 1.
Plaintiff also uses a CPAP machine while sleeping. Id . at ¶ 3. Plaintiff states that because of his permanently disabled knee and his use of a CPAP machine, he had requested and received numerous lower bunk restrictions during his incarceration. Id . He also requested and received a lower tier/bottom tier medical restriction, starting in November 2006. Id . at ¶ 4. According to Plaintiff, this required the prison to place him in a ground floor cell so he would not have to climb stairs. Id.
Medical records show that before February 2011, Plaintiff received orders restricting him to a lower bunk and/or lower tier on (1) November 6, 2006 while at Oregon State Penitentiary, (2) March 24, 2008 while at Three Rivers Correctional Institution, (3) November 13, 2009 while at Snake River Correctional Institution, and on (4) November 12, 2010, also while at Snake River Correctional Institution. Fuzi Decl. at ¶ 5; Attchmt. 2 to Fuzi Decl.
Plaintiff was transferred to DRCI on August 17, 2009. Attchmt. 1 to Fuzi Decl. at 2. He states that on February 3, 2012, he requested a renewal of his lower bunk restriction but was told by medical staff that an official restriction was unnecessary because no one would assign him to a top bunk while using a CPAP machine. Pl.'s Decl. at ¶ 5. The top bunks have no place to store the machine. Id.
According to Plaintiff, on February 5, 2012, Frost ordered him to use the top bunk during count time. Id . at ¶ 6. He told her it was unsafe for him to do so because his right knee prevented him from safely climbing the ladder to the top bunk and because he had a CPAP machine. Id . He states that Frost told him that she did not care if he got hurt climbing to the top bunk and that he would be sent to solitary confinement if he disobeyed her order. Id . Plaintiff further states that in attempting to climb up to the top bunk pursuant to Frost's order, he fell on the concrete floor of the cell and injured his shoulder. Id . at ¶ 7. He claims that the injury still causes him significant pain and restricts his activities. Id . Plaintiff asserts that after the fall and the shoulder injury, and still on the morning of February 5, 2012, Frost again ordered him to the top bunk. Id . at ¶ 8. He refused to follow her order because he was afraid he would further injure himself if he attempted to climb the ladder with his disabled knee. Id . As a result of not following her order, Plaintiff states that Frost ordered him to solitary confinement. Id.
Frost submits a Declaration in which she states that contrary to Plaintiff's assertions, on February 5, 2012 she worked in the Officer-in-Charge's office in the Administration Building, a building which is separate from the housing units, from 5:15 a.m. until 9:15 p.m. Frost Decl.  at ¶ 5. She recalls no contact or conversation with Plaintiff concerning his bunk assignment on or before February 5, 2012. Id . She also states she has no personal knowledge of Plaintiff's medical conditions. Id . at ¶ 8.
Frost states that on February 4, 2012, Plaintiff received a "72-hour conduct order" for failure to follow orders and for being in an unauthorized area. Id . at ¶ 11. Because Plaintiff had no active bottom bunk restriction at that time, the previous one having expired in November 2011, Plaintiff was reassigned to a "non-incentive" upper bunk as a consequence of the "72-hour conduct order" so that an eligible inmate could be assigned to the lower bunk that Plaintiff had occupied. Id . Frost explains that bottom bunks are given to inmates with a bottom bunk restriction and to other inmates as a reward for continuous good behavior. Id . at ¶ 9. Frost did not personally relate the top bunk reassignment to Plaintiff, although the record suggests that she issued the reassignment order. Id . at ¶ 11; Platiro Decl. at ¶ 6 (stating that he gave Plaintiff the order to move from a lower bunk to a top bunk and that he received ...