PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RICHARD ANTHONY JENKINS,

Plaintiff,

v.

MARK NOOTH, Superintendent Snake River 

Correctional Institution; MR. MIKE 

GOWER; MR. STEVE SHELTON; MS. 

JOEDEAN ELLIOT-BLAKESLEE 

(deceased); MR. STEVE ROBBINS; MS. 

AIMEE HUGHES; MS. ASHLEY 

CLEMENTS; MS. COLETTE PETERS; 

MR. GARTH GULICK; MS. JACKIE 

WICKS; MS. SHIRLEY HODGES; MR. 

MAX WILLIAMS; TLC COMMITTEE; 

MR. THOMAS BRISTOL; MR. JAMES 

TAYLOR; MR. KENNETH LITTLE,

Defendants.

Case No. 3:15-cv-0558-SI

OPINION AND ORDER

Richard Anthony Jenkins, Sid No. 8772908, 777 Stanton Boulevard, Ontario, OR 97914. Pro se

Plaintiff.

Ellen Rosenblum, Attorney General, and Vanessa A. Nordyke, Assistant Attorney General, 

Department of Justice, 1162 Court Street NE, Salem, OR 97301. Of Attorneys for State 

Defendants.

Timothy J. Helfrich, Yturri Rose, LLP, 89 SW Third Avenue, P.O. Box S, Ontario, OR 97914. 

Of Attorneys for Defendant Dr. Kenneth Little.
PAGE 2 – OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiff Richard Anthony Jenkins, a prisoner incarcerated at Snake River Correctional 

Institution (“SRCI”), brings this civil rights action pursuant to 42 U.S.C. § 1983 alleging that 

defendants Nooth, Gower, Shelton, Robbins, Hughes, Clements, Peters, Gulick, Wicks, Hodges, 

Bristol, and Taylor (the “State Defendants”) acted with deliberate indifference toward Plaintiff’s

medical needs and denied him due process.1Plaintiff has also named Dr. Kenneth Little as a 

defendant, but he has not properly been served. Currently before the Court are: (1) Plaintiff’s 

Motion for Temporary Restraining Order and Preliminary Injunction seeking specific medical 

care; (2) the State Defendants’ Motion for Summary Judgment; (3) Plaintiff’s Motion to Compel 

initial disclosures; and (4) Dr. Little’s Motion to Dismiss based on improper service and lack of 

personal jurisdiction.

Because many of the issues raised in Plaintiff’s motion for injunctive relief overlap with 

the issues raised in the State Defendants’ motion for summary judgment, Judge King stayed a 

decision on Plaintiff’s motion pending briefing on the summary judgment motion. After 

considering all the filings in this case, the Court denies Plaintiff’s motion for preliminary 

injunctive relief without prejudice, grants the State Defendants’ motion in part and defers ruling 

in part, denies Plaintiff’s motion to compel, defers ruling on Dr. Little’s motion, and appoints 

counsel for Plaintiff.

STANDARD

A. Motion for Temporary Restraining Order or Preliminary Injunction

In deciding whether to grant a motion for temporary restraining order (“TRO”), courts 

look to substantially the same factors that apply to a court’s decision on whether to issue a 

 

1

The previously assigned judge, Judge Garr King, dismissed several additional 

defendants.
PAGE 3 – OPINION AND ORDER

preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 

n.7 (9th Cir. 2001). A preliminary injunction is an “extraordinary remedy that may only be 

awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. 

Council, 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show 

that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer 

irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in favor of 

the plaintiff; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20 (rejecting the 

Ninth Circuit’s earlier rule that the mere “possibility” of irreparable harm, as opposed to its 

likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s 

alternative “serious questions” test. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 

(9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship balance 

that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other 

two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction may be 

granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going 

to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is 

in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) (citing Cottrell).

B. Motion for Summary Judgment

A party is entitled to summary judgment if the “movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine 

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view 

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in 

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th 
PAGE 4 – OPINION AND ORDER

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the 

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling 

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of 

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 

255 (1986). “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 Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

BACKGROUND

While Plaintiff was an incarcerated state prisoner, Dr. Little performed surgery on 

Plaintiff’s back on May 20, 2014. Plaintiff contends all pain management ceased by July 30, 

2014, that he experiences the same pain as before surgery, and that he struggles to walk, sit, 

stand, and sleep. He concedes that he now sees a new provider, Lisa Koltes, M.D. (who is not a 

defendant in this case). Plaintiff asserts, however, that Dr. Koltes, too, refuses to prescribe any 

medications to Plaintiff that provide him with pain relief. Instead, medical personnel have 

encouraged Plaintiff to exercise and take over-the-counter pain medications. He reports needing 

to use a cane for balance and to accommodate the needle-like pain and numbness in his right 

foot. Plaintiff concedes that Dr. Koltes prescribed Nortriptyline and other anti-depressants, but 

he disputes that these medications work and he complains that he should not be forced to walk 

(when it is painful to do so) to collect medications that do not work. Plaintiff further contends 

that SRCI’s medical providers “have been on a course of making Plaintiff try anti-depressants 

that are not guaranteed to reduce or remedy, diagnose symptoms or injuries with try this[/]try 

that in hopes something works months later while still suffering severe pains.” Pl.’s Mot. at ¶ 51 

(ECF 33 at 12-13).
PAGE 5 – OPINION AND ORDER

As relevant to his motion for a temporary restraining order, Plaintiff alleges Defendants 

have failed to examine him properly and have denied him adequate pain medication. He alleges 

that he has tried many different medications, all without any positive results, and he has not been 

approved to see a specialist such as a neurosurgeon or rheumatologist. Plaintiff alleges diagnoses 

of chronic pain, fibromyalgia, and myofascial pain syndrome.

DISCUSSION

A. Failure to Exhaust Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) states: “No action shall be brought with 

respect to prison conditions under section 1983 of this title, or any other Federal law, by a 

prisoner confined in any jail, prison, or other correctional facility until such administrative 

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA exhaustion 

requirement demands “proper exhaustion,” which means compliance with all deadlines and 

“other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90, 93 (2006). 

It is the defendants’ burden “to prove that there was an available administrative remedy, 

and that the prisoner did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 

1172 (9th Cir. 2014). The burden of production then shifts to the prisoner to “come forward with 

evidence showing that there is something in his particular case that made the existing and 

generally available administrative remedies effectively unavailable to him.” Id. The “ultimate 

burden of proof remains with the defendant[s].” Id. The court must view all material facts in the 

light most favorable to the non-moving party. Id. at 1173. “If undisputed evidence viewed in the 

light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to 

summary judgment under Rule 56.” Id. at 1166.

Grievances are processed in accordance with the Oregon Department of Corrections 

(“ODOC”) Administrative Rules for Inmate Communication and Grievance Review System. 
PAGE 6 – OPINION AND ORDER

Inmates are encouraged to talk to first line staff as their primary way to resolve disputes and, if 

not satisfied, to use a written inmate communication form. Or. Admin. R. (“OAR”) 291-109-

0100(3)(a). If this does not resolve the issue, the inmate may file a grievance. AR 291-109-

0140(1)(a).

Inmates may grieve: (1) the misapplication or lack of any administrative directive or 

operational procedure; (2) unprofessional behavior or action directed toward an inmate by an 

employee, contractor, or volunteer; (3) any oversight or error affecting an inmate; (4) a program 

failure; (5) the loss or destruction of property; and (6) sexual contact, solicitation, or coercion 

between an employee or contractor and an inmate. OAR 291-109-0140(2)(a)-(g). A grievance 

must be filed within 30 days of the incident. OAR 291-109-0150(2). An inmate must file a 

separate grievance for each ODOC employee regarding a single incident or issue. OAR 291-109-

1040(5).

An inmate may appeal a grievance response to the functional unit manager by completing 

a grievance appeal form and filing it with the grievance coordinator within fourteen days of 

receipt of the response. OAR 291-109-0170(1)(a) and (b). If still not satisfied, the inmate may 

appeal the functional unit manager’s decision by completing another grievance appeal form and 

filing it with the grievance coordinator within fourteen days of receipt of the response. OAR 291-

109-0170(2)(c). This final appeal is decided by an assistant director having authority over the 

issue, constituting the final administrative ruling. OAR 291-109-0170(2)(e) and (f).

Plaintiff failed to grieve any conduct of defendants Nooth, Gower, Robbins, Peters,

Wicks, Hodges, Bristol, or Williams. Decl. of James A. Taylor in Supp. of Mot. for Summ. J. 

¶ 47 (ECF 53 at 17). As a result, Plaintiff failed to exhaust his administrative remedies as to 

these individuals and they are dismissed.
PAGE 7 – OPINION AND ORDER

B. Eighth Amendment Deliberate Indifference

The treatment a prisoner receives in prison and the conditions of his confinement are 

subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). 

As the Supreme Court has explained,

The [Eighth] Amendment also imposes duties on these officials, 

who must provide humane conditions of confinement; prison 

officials must ensure that inmates receive adequate food, clothing, 

shelter, and medical care, and must take reasonable measures to 

guarantee the safety of the inmates[.] 

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citations and quotations omitted). A 

prison official violates a prisoner’s Eighth Amendment rights only when the claim satisfies both 

an objective and subjective inquiry. Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000).

To meet the objective element, in the context of a claim for failure to provide medical 

care, a plaintiff must establish a “serious medical need.” Estelle v. Gamble, 429 U.S. 97, 104 

(1976). A serious medical need is the kind of injury that “a reasonable doctor or patient would 

find important and worthy of comment or treatment; . . . that significantly affects an individual’s 

daily activities; or [causes] chronic and substantial pain.” Lopez, 203 F.3d at 1131 (citation 

omitted). The subjective inquiry requires a showing that corrections officers acted with 

deliberate indifference to a plaintiff’s serious medical needs. Id. at 1132. “[A] prison official 

cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of 

confinement unless the official knows of and disregards an excessive risk to inmate health or 

safety . . . .” Farmer, 511 U.S. at 837. 

a. Appointment to see an independent specialist

Plaintiff seeks an appointment with a specialist from outside the prison. Dr. Koltes opines 

that, after examining Plaintiff more than 30 times since February 2015, reviewing his medical 

records, watching him work, and talking with his housing unit officer, she does not believe an 
PAGE 8 – OPINION AND ORDER

order to see an outside specialist is supported by any clinical test results. Koltes Decl. ¶ 4, 38

(ECF 40 at 2, 9). “[A] difference of opinion between a physician and the prisoner—or between 

medical professionals—concerning what medical care is appropriate does not amount to 

deliberate indifference.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (quoting 

Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled in part on other grounds by 

Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)). Instead, “[t]o show deliberate 

indifference, the plaintiff ‘must show that the course of treatment the doctors chose was 

medically unacceptable under the circumstances’ and that the defendants ‘chose this course in 

conscious disregard of an excessive risk to the plaintiff’s health.’” Id. (quoting Snow, 681 F.3d 

at 988); see also Estelle, 429 U.S. at 107 (“A medical decision not to order an X-ray, or like 

measures, does not represent cruel and unusual punishment. At most it is medical malpractice, 

and as such the proper forum is the state court[.]”). On this record, Plaintiff has not shown that

Defendants acted with deliberate indifference by denying Plaintiff’s request to see a specialist.

Thus, Plaintiff’s motion for preliminary injunctive relief is denied with respect to this request,

and the State Defendant’s motion for summary judgment is granted.

b. Treatment of pain

Plaintiff also complains that Defendants have not properly treated his pain, and he seeks 

appropriate pain medications and physical therapy. Plaintiff does not attempt to dictate what pain 

medication he requires instead of those being offered him, he instead requests an alternative to 

the present course of “hope care.” Pl.’s Mot. at ¶ 52 (ECF 33 at 13). Plaintiff has been prescribed 

numerous anti-depressants, such as Elavil, Effexor, Bupropion, Celexa, Cymbalta, Divalproex, 

Nortriptyline, and Desipramine, some of which are known to help nerve pain, but none of which 

have successfully treated his pain. He has also taken other medications such as Tramadol, 

Valium, non-steroidal anti-inflammatories, and Tylenol.
PAGE 9 – OPINION AND ORDER

Dr. Koltes prescribed Doxeprin (an anti-depressant known to help nerve pain, stopped at 

Plaintiff’s request), and recently strongly encouraged Fluoxetine (another anti-depressant), which 

Plaintiff insisted would not work, and which he did not take regularly. Given Plaintiff’s history 

with anti-depressants not working to treat his pain, his skepticism at the recommendation to try 

yet another similar medication is not unreasonable.

Plaintiff’s previous physician apparently prescribed Ultram, a narcotic. That treatment 

occurred in 2013 before Plaintiff’s surgery. Dr. Koltes reports that narcotic pain medication is 

typically not prescribed for fibromyalgia, and that both she and the Therapeutic Level of Care 

Committee have concluded Plaintiff’s condition does not support a current need for narcotic pain 

medication. It is not apparent from the record that Plaintiff only suffers from fibromyalgia, 

particularly given his back surgery. The record appears to show that Plaintiff may suffer from 

other types of pain, and it is unclear whether other types of medications may be beneficial to that 

pain. Of note, however, courts have found that providing over-the-counter medication in lieu of 

narcotic pain medication, absent complicating factors, does not provide the basis for an Eighth 

Amendment claim. See Heilbrun v. Villanueva, 2016 WL 3200121, at *4 (D. Or. June 7, 2016); 

Jackson v. Multnomah Cty., 2013 WL 428456, at *6 (D. Or. Feb. 4, 2013); Fields v. 

Roberts, 2010 WL 1407679, at *4 (E.D. Cal. Apr. 7, 2010); but see Masden v. 

Risenhoover, 2013 WL 1345189, at *6, 17 (N.D. Cal. Mar. 29, 2013) (could not take 

nonsteroidal anti-inflammatory drugs due to liver problems). 

Plaintiff was also, however, previously prescribed Neurontin (a form of gabapentin), 

which is not a narcotic. This type of medication is commonly used to treat nerve pain and 

fibromyalgia. Plaintiff has apparently not been prescribed this medication since his surgery. The 

record is not clear why this type of medication has not been prescribed. 
PAGE 10 – OPINION AND ORDER

The Court has some concerns regarding the treatment of Plaintiff’s pain and defers ruling 

on the State Defendants’ motion for summary judgment on this issue until after counsel has been 

appointed, can review and further develop the record if needed, and can further argue this issue 

to the Court. The Court does not, however, find that the record supports the entry of preliminary 

injunctive relief at this time. On this record, Plaintiff fails adequately to show a likelihood of 

success on the merits or irreparable harm. The Court therefore denies Plaintiff’s motion for 

preliminary injunctive relief on this issue, without prejudice to renew after counsel has been 

appointed and the record has been more fully developed.

Regarding the State Defendants’ motion for summary judgment, after counsel has been 

appointed, Plaintiff may file a supplemental response brief in opposition to the motion for 

summary judgment relating to the treatment of Plaintiff’s pain and then the State Defendants 

may file a supplemental reply brief. The Court will also allow additional discovery, if needed. 

C. Motion to Compel

Plaintiff’s motion to compel the production of initial disclosures pursuant to Federal Rule 

of Civil Procedure 26(a)(1)(A) is denied. Because Plaintiff has been proceeding pro se, initial 

disclosures are exempt under Rule 26(a)(2)(B)(iv). 

D. Motion by Dr. Little

The Court defers ruling on Dr. Little’s motion to dismiss until after counsel has been 

appointed to represent Plaintiff. Plaintiff may then file a supplemental response brief in 

opposition to the motion, and may engage in limited discovery relating to jurisdiction, if needed.

1

Dr. Little will then be allowed to file a supplemental reply brief.

 

1

Plaintiff served Dr. Little through his attorney, who represents that he was not 

authorized to accept service on behalf of Dr. Little and thus Dr. Little moves to dismiss based on 

lack of proper service. The Court notes that given the extenuating circumstances of Plaintiff 

proceeding in forma pauperis and pro se and being a prisoner without access to the address of 
PAGE 11 – OPINION AND ORDER 

E. Scheduling 

After appointed counsel has accepted representation of Plaintiff, the parties shall confer 

on a schedule for discovery and the filing of the supplemental briefs. The parties shall file a 

proposed schedule with the Court. If the parties cannot agree on a proposed schedule, then the 

parties shall file a status report setting forth each party’s proposed schedule. 

CONCLUSION 

Plaintiff’s motion for a temporary restraining order or preliminary injunction (ECF 33) is 

DENIED WITHOUT PREJUDICE. The State Defendants’ motion for summary judgment 

(ECF 51) is GRANTED IN PART and DEFERRED IN PART. Plaintiff’s motion to compel 

(ECF 90) is DENIED. Dr. Little’s Motion Dismiss (ECF 70) is DEFERRED. The Clerk of the 

Court is directed to appoint pro bono counsel to represent Plaintiff. 

IT IS SO ORDERED.

DATED this 24th day of April, 2017.

/s/ Michael H. Simon 

Michael H. Simon 

United States District Judge 

Dr. Little, the Court will consider a request to extend the time to serve Dr. Little, as the Court has 

done in other cases involving pro se prisoner plaintiffs serving third party contractors with the 

prison, if counsel so requests.