United States District Court, D. Oregon
DERRICK T. TOLIVER, Plaintiff,
CORIZON HEALTH, SHARON BRENNAN, MANDY, and CRAIG ROBERTS, Defendants.
FINDINGS AND RECOMMENDATION
Honorable Paul Papak, United States Magistrate Judge.
plaintiff pro se Derrick T, Toliver filed this
action against defendants identified as Sharron Brennan,
Clackamas County Jail, Corizon Health ("Corizon"),
and Mandy (collectively with Brennan and Corizon, the
"Corizon defendants") on October 21, 2016. Toliver
amended his complaint effective June 26, 2017, abandoning his
claims to the extent alleged against Clackamas County Jail,
and adding as a defendant Craig Roberts, the Sheriff of
Clackamas County. By and through his amended complaint,
Toliver alleges that at material times he was incarcerated in
the Clackamas County Jail (the "CCJ"), where he was
exposed to mold and/or mildew which impaired his ability to
breathe, apparently by exacerbating a preexisting asthma
condition. Toliver further alleges that while he was
incarcerated in the CCJ, he complained about difficulty
breathing and received inadequate medical care in response to
those complaints from Brennan and Mandy, each an employee of
Corizon (which is contracted to provide medical and mental
health services to CCJ inmates). Arising out of the
foregoing, Toliver alleges all defendants' liability,
apparently under 42 U.S.C. § 1983, for the violation of
his unspecified Eighth Amendment and/or Fourteenth Amendment
rights, and under Article I, Section 13 of the Oregon
Constitution. This court has federal-question jurisdiction
over Toliver's Section 1983 claims pursuant to 28 U.S.C.
§ 1331, and may properly exercise supplemental
jurisdiction over his state constitutional claims pursuant to
28 U.S.C. § 1367.
before the court are Roberts' motion (#40) to dismiss
Toliver's Section 1983 claim against him and the Corizon
defendants' motion (#49) to dismiss Toliver's Section
1983 claims against them. I have considered the motions and
all of the pleadings and papers on file. For the reasons set
forth below, Roberts' motion (#40) to dismiss should be
granted, the Corizon defendants' motion (#49) to dismiss
should be granted in part and denied in part, and
Toliver's Section 1983 claims should be dismissed without
prejudice to the extent alleged against defendants Roberts
and Corizon only.
survive dismissal for failure to state a claim pursuant to
Rule 12(b)(6), a complaint must contain more than a
"formulaic recitation of the elements of a cause of
action;" specifically, it must contain factual
allegations sufficient to "raise a right to relief above
the speculative level." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To raise a right to
relief above the speculative level, "[t]he pleading must
contain something more .. . than ... a statement of facts
that merely creates a suspicion [of] a legally cognizable
right of action." Id., quoting 5 C. Wright
& A. Miller, Federal Practice and Procedure § 1216,
pp. 235-236 (3d ed. 2004); see also Fed. R. Civ. P.
8(a). Instead, the plaintiff must plead affirmative factual
content, as opposed to any merely conclusory recitation that
the elements of a claim have been satisfied, that
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
citing Twombly, 550 U.S. at 556. "In sum, for a
complaint to survive a motion to dismiss, the non-conclusory
'factual content, ' and reasonable inferences from
that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief." Moss v. United
States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009),
citing Iqbal, 556 U.S. at 678.
ruling on a 12(b)(6) motion, a court may generally consider
only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice." Swartz v. KPMG LLP, 476 F.3d
756, 763 (9th Cir. 2007). In considering a motion to dismiss,
this court accepts all of the allegations in the complaint as
true and construes them in the light most favorable to the
plaintiff. See Kahle v. Gonzales, 474 F.3d 665, 667
(9th Cir. 2007). Moreover, the court "presume[s] that
general allegations embrace those specific facts that are
necessary to support the claim." Nat'l Org. for
Women v. Scheidler, 510 U.S. 249, 256 (1994),
quoting Liijan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992). The court need not, however, accept legal
conclusions "cast in the form of factual
allegations." Western Mining Council v. Watt,
643 F.2d 618, 624 (9th Cir. 1981).
Toliver is an incarcerated prisoner currently housed at the
Snake River Correctional Institution who at all material
times was housed in the Clackamas County Jail.
Roberts is the Sherriff of Clackamas County.
Corizon is a privately-held correctional health care
corporation providing medical and mental health services to
CCJ inmates under contract with Clackamas County. Defendant
Brennan is Corizon's head nurse at the CCJ. Defendant
Mandy is a nurse employed by Corizon at the CCJ.
Toliver's Allegations in Support of His
Toliver was incarcerated at the CCJ, he was exposed to mold
and mildew in the shower area. See Amended Complaint
at IV(I). Toliver reported the presence of mold and mildew
and was advised that no "dangerous" mold was
present. See Id. It is Toliver's belief that CCJ
personnel determined that the mold and mildew that he
observed was not dangerous, and on that basis disregarded its
presence in the shower area. See Id. Toliver became
ill as a result of exposure to the mold and mildew in the CCJ
shower area, specifically suffering symptoms of impaired
ability to breathe. See Id. It appears that
Toliver's theory of defendant Roberts' liability is
premised solely on Roberts' supervisory responsibility
for conditions at the CCJ in his capacity as the Sheriff of
Clackamas County. See id., passim.
Toliver became ill, lie sought medical treatment from
Corizon, See Id. at IV(I). Corizon employees treated
Toliver's symptoms chiefly with a "nebulizer
breathing treatment." Id. On one occasion,
Brennan discontinued the nebulizer breathing treatment
"for a few days." Id. Additionally,
Brennan refused to prescribe prednisone for treatment of
Toliver's symptoms notwithstanding that, approximately
one month later, after Toliver had been transferred to
another correctional facility, another doctor opined that
Toliver should receive prednisone. See id.
"several occasions" Mandy refused to provide
Toliver with the nebulizer breathing treatment upon his
request. Id. On one additional occasion, Mandy told
Toliver she would bring him his "asthma pump" in
"about" five minutes, but did not in fact bring him
the pump. Id.. Instead, another Corizon employee
brought Toliver the pump after a delay of approximately two
hours, after Toliver had complained about Mandy's failure
to bring it earlier. See id.
symptoms worsened as a result of the medical care he received
at the CCJ. See id.
alleges that his theory of Corizon's liability is
premised on its status as Brennan's and Mandy's
employer. See Id.
Toliver's Assertions of Fact Not Alleged by and through
His Amended Complaint
pleading stage of these proceedings, Roberts and the Corizon
defendants do not challenge Toliver's ability to
establish the truth of his allegations through evidence, but
rather challenge whether his allegations themselves, on the
assumption that they will ultimately be proven true and
construed in the light most favorable to him, are sufficient
to state a claim upon which this court can grant relief. It
is accordingly appropriate for this court to disregard
evidence or assertions of fact ...