United States District Court, D. Oregon, Portland Division
JIM H. FRENCH Plaintiffs,
BRAD CAIN, Superintendent; SNAKE RIVER CORRECTIONAL INSTITUTION; AMY HUGHS [sic, Head Nurse; STEVE SHELTON, Director; HASSELBACH, RN; PIEKARZ, RN et al.; JANE DOE; Defendants.
OPINION AND ORDER ON MOTION FOR SUMMARY
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.
Jim H. French is proceeding pro se in this 42 U.S.C.
§ 1983 civil rights action. Mr. French is in the custody
of the Oregon Department of Corrections (“ODOC”)
and is incarcerated at the Snake River Correctional
Institution (“SRCI”). In his Second Amended
Complaint, which names Brad Cain, Aimee Hughes, Steve
Shelton, M.D., and Debra Hasselbach and Malica Piekarz as
defendants, Mr. French alleges a violation of his Eighth
Amendment right to be free from deliberate indifference to
his serious medical needs based on the denial of his
prescribed medication. Defendants move for summary judgment
on Mr. French's claims. For the reasons explained below,
I DENY Defendants' Motion for Summary Judgment  as
moot with respect to their Eleventh Amendment ground, GRANT
the Motion with respect to the three other grounds and
dismiss this case with prejudice.
French suffers from mental illness and controls his illness
by taking three medications, one of which is Hydroxyzine.
(Second Am. Compl. at 3, dkt. no. 14). Mr. French's
Second Amended Complaint raises two almost identical claims
of deliberate indifference to his serious medical needs in
violation of the Eighth Amendment. (Id. at 3-5).
Mr. French alleges defendant Hasslebach wrongly denied him
his Hydroxyzine on December 23, 2015, by drawing a line
through the medication chart showing it as discontinued even
though the medication was neither expired nor cancelled by a
doctor. (Id. at 3 and 5). Although he received his
Hydroxyzine as prescribed for the next few days, Mr. French
alleges defendant Piekarz again wrongfully denied his
medication on December 28, 2015. (Id.). According to
Mr. French, defendant Piekarz sent his Hydroxyzine back to
the pharmacy without any order from a doctor to do so.
(Id.). Mr. French also alleges that defendants
Hasslebach and Piekarz's failure to give him his
medication on those two dates caused him to engage in
misconduct at his job on December 30, which resulted in him
losing his job, losing his honors housing, and incurring
other discipline. (Id. at 3 and exhibit 6).
filed a Motion for Summary Judgment on September 8, 2017.
Defendants Cain, Hughes, and Shelton assert they are entitled
to summary judgment because Mr. French has failed to allege
their personal involvement in the alleged Eighth Amendment
violations. (Mot. Summ. J. at 7-9, dkt. no. 33). All
Defendants allege they are entitled to summary judgment on
the claims against them in their official capacity because
the Eleventh Amendment bars these claims. (Id. at
9-10). Defendants Hasselbach and Piekarz allege they are
entitled to summary judgment because Mr. French fails to
allege facts sufficient to establish an Eighth Amendment
violation. (Id. at 10-14). Finally, Defendant
Hasselbach and Piekarz argue, even if Mr. French has
established an Eighth Amendment violation, qualified immunity
shields them from liability. (Id. at 14-5).
September 11, 2017, the Court issued a Summary Judgement
Advice Notice and Scheduling Order. As well as setting
deadlines for Mr. French's Response, the Order explained
that, if granted, Defendants' Summary Judgment Motion
could end Mr. French's case and explained what Mr. French
needed to do to oppose the Motion. (Order, dkt. no. 35). Mr.
French filed a Response to Defendants' Motion on November
2, 2017. Then, Mr. French filed a “Motion to Extend
[the] Time to Refile Response to Motion for Summary Judgment,
” which I construed as a motion for an extension of
time to refile his Response. I allowed, but did not require,
Mr. French to refile his response and noted if he did not
refile a response, I would consider the November 2, 2017,
Response in deciding the summary judgment motion. (Order,
dkt. no. 43).
French did not refile his Response, but he did file exhibits
in support of his Response on December 5, 2017. The exhibits
Mr. French filed on December 5, 2017, largely mirror the
exhibits attached to his Second Amended Complaint. I accept
Mr. French's exhibits filed on December 5, 2017, and
consider them and his November 2, 2017, Response in deciding
Defendants' Summary Judgment Motion. Defendants did not
file a Reply.
summary judgment, the moving party bears the initial burden
of pointing out the absence of a genuine issue of fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
This burden is met either by “produc[ing] evidence
negating an essential element of the nonmoving party's
claim or show[ing] that the non-moving party does not have
enough evidence of an essential element to carry its ultimate
burden of persuasion at trial.” Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d
1099, 1103 (9th Cir. 2000). If the moving party carries its
burden, the burden shifts to the non-moving party to set
forth evidence to support its claim and to show there is a
genuine issue of fact for trial. Id. The court views
the record in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quotations and citation
omitted). This is especially true when the non-movant is a
pro se litigant. Garaux v. Pulley, 739 F.2d
437, 439 (9th Cir. 1984) (stating pro se pleadings
are liberally construed, particularly where civil rights
claims are involved). Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial."
Matsushita, 475 U.S. at 587 (quotations and citation
Motion for Summary Judgment Based on Eleventh
Response, Mr. French clarifies that he intended to sue
Defendants in their individual capacities. (Resp. at p. 16,
dkt. no. 39). Accordingly, I DENY Defendants' Motion for
Summary Judgment based on the Eleventh Amendment barring
claims against them in their official capacities as moot.
Motion for Summary Judgment on Claims against Defendants