United States District Court, D. Oregon
RICHARD S. DAVIS, Plaintiff,
THE OREGON DEPARTMENT OF CORRECTIONS, et al, Defendants.
OPINION AND ORDER
ACOSTA, MAGISTRATE JUDGE.
an inmate at the Santiam Correctional Institution, brings
this civil rights action pro se. Currently before
the Court is Defendants' FRCP Rule 12 Partial Motion to
Dismiss (ECF No. 18). On January 8, 2020, due to a clerical
error, this Court issued a Findings and Recommendation (ECF
No. 23) recommending that the Court should GRANT IN PART and
FIND MOOT IN PART Defendants' Motion. In fact, all
parties to this action have consented to allow a Magistrate
Judge to enter final orders and judgment in this case in
accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c).
Accordingly, the January 8, 2020, Findings and Recommendation
is hereby STRICKEN, and replaced with this Opinion and Order.
alleges claims of deliberate indifference to a serious
medical need, medical malpractice, and negligence against
Defendants based upon his alleged release from custody
without his prescribed anti-anxiety medication or
instructions of where and how to continue his treatment.
Plaintiff alleges he thereafter suffered a mental breakdown
and was re-arrested within 19 days of his release. Defendants
move to dismiss Plaintiffs claims against Defendant Oregon
Department of Corrections as well as Plaintiffs claims of
medical malpractice and negligence against Defendants Elliott
courts are courts of limited jurisdiction, and generally have
jurisdiction as authorized by the Constitution or by statute.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Courts presume that a case "lies
outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction." Id. Rule 12(b)(1) of the Federal
Rules of Civil Procedure allows a defendant to challenge
subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1) (2019).
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) may be either "facial" or
"factual." Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack on
subject-matter jurisdiction the court resolves the motion as
it would a motion to dismiss under Rule 12(b)(6). Leite
v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014);
Savage v. Glendale Union High Sch, 343 F.3d 1036,
1039 n.1 (9th Cir. 2003). The court accepts the factual
allegations of the complaint as true and draws all reasonable
inferences in the plaintiffs favor, and "determines
whether the allegations are sufficient as a legal matter to
invoke the court's jurisdiction." Leite,
749 F.3d at 1121. "If the court determines at anytime
that it lacks subject-matter jurisdiction, the court must
dismiss the action." Fed.R.Civ.P. 12(h)(3) (2019).
well-pleaded complaint requires only "a short and plain
statement of the claim showing that the pleader is entitled
to relief." Fed.R.Civ.P. 8(a)(2) (2019). A federal
claimant is not required to detail all factual allegations;
however, the complaint must provide "more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do." Bell Ail. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). "Factual allegations must be enough to raise a
right to relief above the speculative level."
Id. While the court must assume all facts alleged in
a complaint are true and view them in a light most favorable
to the nonmoving party, it need not accept as true any legal
conclusion set forth in the complaint. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Additionally, a
plaintiff must set forth a plausible claim for relief- a
possible claim for relief will not do. "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. U.S.
Secret Service, 572 F.3d 962, 969 (9th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678).
Defendant Oregon Department of Corrections
move to dismiss Plaintiff s claims against the Oregon
Department of Corrections based upon sovereign immunity,
i. e., that the Eleventh Amendment deprives federal
courts of subject matter jurisdiction over claims brought by
private parties against a state, state agencies, or state
officials acting in their official capacities unless the
state has unequivocally consented to suit or Congress has
expressly abrogated the state's Eleventh Amendment
immunity. See Will v. Dept. of State Police, 491
U.S. 58, 71 (1989); Edelman v. Jordan, 415 U.S. 651,
673 (1974). However, on September 10, 2019, District Judge
Marco A. Hernandez issued an Order to Dismiss in Part
dismissing Plaintiffs claims against Defendant Oregon
Department of Corrections based on sovereign immunity.
Accordingly, the Court should FIND MOOT Defendants'
Motion to Dismiss on this basis.
Medical Malpractice and Negligence Claims
noted, in addition to a claim of deliberate indifference,
Plaintiffs Amended Complaint alleges claims of negligence and
medical malpractice against Defendants Elliott and Hanson.
However, mere negligence or malpractice is not a proper basis
for § 1983 liability. Daniels v. Williams, 474
U.S. 327 (1986); Davidson v. Cannon,474 U.S. 344
(1986). To the extent Plaintiff seeks to allege a claim for
negligence as an ancillary state law claim under the Oregon
Tort Claims Act ("OTCA"), his claims against the
defendants are barred by the Eleventh Amendment. The OTCA
provides that the "sole cause of action for any tort of
officers, employees or agents of a public body acting within
the scope of their employment duties ... is an action against
the public body." Or. Rev. Stat. § 30.265(3). Thus,
the State of Oregon must be substituted as the proper
defendant in negligence claims against the individual
defendants, and the Eleventh Amendment bars plaintiff from
suing the State in this court. See Hale v. Arizona,993 F.2d 1387, 1398 (9th Cir. 1993); Olson v. Or. Univ.
Sys. ex rel. Pernsteiner, No. CV 09-167-MO, 2009 WL
1270293, at *6-7 (D.Or. May 6, 2009) (holding that the
plaintiffs negligence claim was barred because "Oregon
must be substituted for the ...