IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ANDREW PAUL ROSHONE, 

Plaintiff, 

v. 

HARRISON; HICKEY; BROOKS; 

COLLETTE PETERS; M. GOWER; 

S. SHELTON; J. RUSSELL; 

L. WILLIAMSON; MARK NOOTH; 

V. RODRIGUEZ; J. MORDHORST; 

K. NEFF; N. JOHNSON; 

R. WHITE; G. GULICK; 

DR. PETERSON; POWELSON; 

HUGHES; BUGHER; and JASON 

BELL, 

Defendants. 

ANDREW PAUL ROSHONE 

1995 Amazon Parkway 

Eugene, OR 97404 

Plaintiff, Pro Se 

1 - OPINION AND ORDER 

2:14-CV-01576-BR 

OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 1 of 32
ELLEN F. ROSENBLUM 

Attorney General 

VANESSA A. NORDYKE 

Senior Assistant Attorney General 

1162 Court Street N.E. 

Salem, OR 97301-4096 

(503) 947-4700 

Attorneys for Defendants 

BROWN, Judge. 

This matter comes before the Court on Defendants' Motion 

(#55) for Summary Judgment. For the reasons that follow, the 

Court GRANTS Defendants' Motion. 

BACKGROUND 

The following facts are taken from Plaintiff's Complaint and 

the parties materials related to Defendants' Motion for Summary 

Judgment and are viewed in the light most favorable to Plaintiff. 

At all relevant times Plaintiff Andrew Paul Roshone was an 

inmate at Snake River Correctional Institution (SRCI). 

On August 26, 2013, Defendant Corrections Officer Kraig 

Brooks was delivering supplies to inmates housed in the Intensive 

Management Unit (IMU) of SRCI. When Officer Brooks reached 

Plaintiff's cell, he dropped the cuff port 1 to pass supplies to 

Plaintiff's cell. Plaintiff told Officer Brooks that he wanted 

1 A cuff port is a "port or windown into a cell through 

which items such as food, toilet paper, and other supplies are 

passed to inmates. Plaintiff's cuff port was 16 inches wide by 

six inches high. 

2 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 2 of 32
to speak with a sergeant about being denied a shower. Officer 

Brooks advised Plaintiff that he could speak to a sergeant when 

the sergeant made rounds. When Officer Brooks began to close the 

cuff port, Plaintiff "suddenly" pushed the cuff port open and 

"thrust his arms" through the cuff port in what Officer Brooks 

perceived as an attempt to grab and/or to hit him. 2 Officer 

Brooks called for backup. Defendant Correctional Officer Chad 

Hickey responded to Officer Brook's call for backup, took hold of 

Plaintiff's arms, and tried to push them back into the cell. 

Officers Brooks and Hickey ordered Plaintiff to pull his arms 

back into his cell, but Plaintiff refused to do so. Officers 

Brooks and Hickey then disengaged and waited for more security 

staff to arrive. "Soon after" Sergeant Johnson arrived with 

other correctional officers. Sergeant Johnson had a hand-held 

video camera with him recording his contact with Plaintiff. 

Sergeant Johnson ordered Plaintiff to pull his arms back into his 

cell. Plaintiff complied with Sergeant Johnson's order. 

Plaintiff also complied with Sergeant Johnson's "cuff up" order. 

When Plaintiff was secured with restraints, he was "escorted from 

the unit" to the Segregated Housing Unit (SHU) . 

When he reached SHU on August 26, 2013, Plaintiff was seen 

by Nurse Judy Bradford, who noted Plaintiff had red marks on his 

2 In his Complaint Plaintiff refers to this as taking "the 

cuff port hostage." 

3 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 3 of 32
right forearm. Plaintiff, however, was able to wiggle all of his 

fingers "easily," to lift and to lower his wrists, to make 

circles with his wrists, and to turn the palms of his hands up 

and down without any indication of pain. 

At some point on August 26, 2013, after Plaintiff's arrival 

at SHU, Defendant Lieutenant Jerry Mordhorst advised Plaintiff 

"that at no time, should he ever reach out of the cuff port at 

staff. We view this as an attempted assault and staff will 

react." Deel. of Jerry Mordorst, Ex. 1 at 2. 

On August 27, 2013, Plaintiff was seen by Nurse Judy 

Williams and denied any further injury. Nurse Wi.lliams advised 

Plaintiff to return to sick call as needed. 

On August 31, 2013, Defendant Corrections Officer Stuart 

Harrison asked Plaintiff whether he needed any supplies. Officer 

Harrison testifies in his Declaration that Plaintiff told him 

that he needed supplies, "but [he] began cursing and threatening 

[Officer Harrison] with harm if he were to use the cuff-port 

device." 3 Deel. of Stuart Harrison at t 7. Nevertheless, 

Officer Harrison used the cuff-port device and provided Plaintiff 

with the supplies he requested "without incident." Id. 

Plaintiff alleges in his Complaint that on August 31, 2013, 

he asked Officer Harrison to place Plaintiff's dinner in the 

3 Officer Harrison also refers to this as the "cuff-port 

restriction device" and explains only that it is "on a rolling 

cart." 

4 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 4 of 32
cuff-port restriction device "by [Plaintiff's] door rather than 

the one by [his] next door neighbor's cell, since he was being 

accused of throwing feces at a CO." Compl. at '![ 9. Plaintiff 

alleges Officer Harrison refused and denied him dinner. 

Plaintiff, therefore, asked Officer Harrison to call the Sergeant 

"so we could resolve this issue several times but he refused to, 

so at about 6:30 p.m. [Plaintiff] took the cuff port and the 

restriction device hostage." Compl. at '![ 10. Officer Harrison 

testifies in his Declaration that at dinner time on August 31, 

2013, he ordered Plaintiff to stand against the back wall of his 

cell, and he prepared to use the cuff-port device to provide 

Plaintiff with his evening meal. Plaintiff, however refused to 

comply with Officer Harrison's order. Plaintiff, therefore, was 

not provided with his evening meal and "continued with his 

cursing and threatening behavior." Id. 

Later on August 31, 2013, when Officer Harrison was alone in 

Plaintiff's unit, Plaintiff began kicking his door and screaming 

that he needed toilet paper. Officer Harrison contacted the 

"sub-control officer," Officer Beaumont, and notified him that 

Officer Harrison was going to deliver a roll of toilet paper to 

Plaintiff. Officer Harrison asked Officer Beaumont to "keep an 

eye on [Plaintiff] as a result of his pattern of behavior . 

[and] history of violence towards staff and inmates." Harrison 

Deel. at '![ 8. Officer Harrison describes the events in his 

5 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 5 of 32
Declaration as follows: 

I utilized the cuff-port device and opened the 

cuff port, after having directed [Plaintiff) to 

get against the back wall. The moment the cuff 

port was opened, [Plaintiff) quickly dove to the 

port with sufficient force to cause the cuff-port 

restriction device . . to move backwards far 

enough for [Plaintiff) to get his arms thru [sic] 

the port and begin grabbing at me. 

* * * 

I grabbed ahold of [Plaintiff's) right arm and 

stepped to his left and to the side of the cuff 

port. At this same time the sub-control officer 

notified staff that I was engaged in an 

altercation with an inmate and that backup 

officers were required. There was . . a short 

delay in the response of back up and while I 

waited for other corrections staff to arrive, I 

maintained control of [Plaintiff's) arm [using) 

. a "reverse wrist lock'', which meant holding 

[P)laintiff's arm against his body (but not 

against the edge of the cuff port) and rotating 

[Plaintiff's) forearm to the right slightly. This 

wrist lock was intended to control [Plaintiff), 

not to cause injury to [Plaintiff). I used 

the wrist lock so that I could control 

[Plaintiff's) arm with one hand, leaving my other 

hand free to access my cap-stun (chemical pepper 

spray) . 

I accessed my chemical pepper spray with the 

intention of delivering a short blast to the face 

of [Plaintiff) to prevent him from continuing to 

struggle and fight with the backup officers when 

they arrived and removed him from his cell. As I 

brought my capstun towards the cuff port, 

[Plaintiff) saw the canister and screamed "NO'' and 

pulled back with great force. I pulled back 

in the opposite direction to prevent my arm from 

going inside the cell, because I believed 

[Plaintiff) would cause serious injury to my arm 

if he had access to it inside his cell. It 

was at this moment that I heard a loud "pop", 

which I surmised was [Plaintiff) 's arm breaking. 

6 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 6 of 32
Harrison Deel. at ~~ 9-11. 

After the incident on August 31, 2013, Plaintiff was seen by 

Nurse Erin Enunert, who splinted Plaintiff's right arm to 

inunobilize it while he was transported to the hospital. 

On August 31, 2013, Plaintiff was admitted to the emergency 

room of the Saint Alphonsus Medical Center. X-rays of 

Plaintiff's arm showed Plaintiff had a spiral fracture of the 

"mid to distal right humerus with mild displacement and without 

dislocation at the shoulder." Jason Wilhemsen, M.D., ordered 

Plaintiff to keep his arm in a splint and inunobilized and to 

follow-up with an orthopedic surgeon within four to five days. 

Plaintiff was discharged with instructions to take Norco (an 

acetaminophen-Hydrocodone combination) every six hours as needed. 

On September 1, 2013, at 12:05 a.m. Plaintiff returned to 

SRCI. Plaintiff's discharge instructions were given to Inmate 

Health Services and Plaintiff was provided with pain medication. 

At 12:30 p.m. Plaintiff reported to Nurse Megan Ashton that the 

pain medication he had received was effective. 

On September 3, 2013, Defendant Garth Gulick, M.D., saw 

Plaintiff, who complained of breakthrough pain on Norco. 

Dr. Gulick prescribed MS Cantin twice a day for pain and ordered 

an appointment for Plaintiff with Defendant Randolph Peterson, 

M.D., to evaluate Plaintiff's arm to determine whether surgery 

7 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 7 of 32
and "open reduction internal fixation (ORIF) 4 would be 

necessary." Deel. of Garth Gulick at ! 11. 

On September 4, 2013, Dr. Peterson reviewed Plaintiff's 

August 31, 2013, x-ray and diagnosed Plaintiff with a spiral 

fracture to his right humerus. Dr. Peterson noted "the medial 

shaft is in an excellent position" and directed Plaintiff to 

continue wearing the splint and to keep his arm immobilized. 

Dr. Peterson ordered Plaintiff to undergo follow-up x-rays in 1-2 

weeks and noted it would require surgery to repair if Plaintiff's 

fracture "displaced." Gulick Deel. at ! 12 and Ex. 1 at 8. 

Plaintiff was seen by various doctors and other medical 

staff at SRCI for treatment related to his right-arm fracture at 

least 14 times between September 2013 and May 2014. Plaintiff 

underwent x-rays of his right arm four separate times between 

September 2013 and May 2014. All of his x-rays showed normal 

healing with only "slight malalignment" within acceptable medical 

parameters. 

On October 6, 2014, Plaintiff filed a pro se Complaint in 

this Court pursuant to 42 U.S.C. § 1983 in which he alleges 

during his time as an inmate at SRCI, Defendants (1) violated 

Plaintiff's Fourteenth Amendment rights when they did not allow 

Plaintiff "due process before assaulting and subjecting him to 

4 ORIF involves implanting "fixators" such as bone screws, 

metal plates, pins, and/or rods to repair a broken bone. 

8 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 8 of 32
serious pain and injury," (2) violated the First Amendment to the 

United States Constitution when they did "not call[] a supervisor 

when Plaintiff asked . and . retaliat[ed] against 

Plaintiff for attempting to exercise his [F]irst Amendment rights 

with the use of excessive force," and (3) were deliberately 

indifferent to his serious medical needs in violation of the 

Eighth Amendment when they denied him appropriate medical care. 

On January 22, 2016, Defendants filed a Motion for Summary 

Judgment as to all of Plaintiff's claims. 

On January 25, 2016, the Court issued a Summary Judgment 

Advice Notice to Plaintiff advising him that if he did not submit 

evidence in opposition to Defendants' Motion, summary judgment 

would be entered against him if appropriate. 

On May 2, 2016, Plaintiff filed a Response to Defendants' 

Motion for Summary Judgment. The Court took this matter under 

advisement on May 19, 2016. 

STANDARDS 

Summary judgment is appropriate when "there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law." Washington Mut. Ins. v. United 

States, 636 F.3d 1207, 1216 (9'" Cir. 2011). See also Fed. R. 

Civ. P. 56(a). The moving party must show the absence of a 

dispute as to a material fact. Rivera v. Philip Morris, Inc., 

9 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 9 of 32
395 F. 3d 1142, 1146 (9th Cir. 2005). In response to a properly 

supported motion for summary judgment, the nonmoving party must 

go beyond the pleadings and show there is a genuine dispute as to 

a material fact for trial. Id. "This burden is not a light one 

The non-moving party must do more than show there is 

some 'metaphysical doubt' as to the material facts at issue." In 

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) 

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence 

is such that a reasonable jury could return a verdict for the 

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F. 3d 

1054, 10 61 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986)). The court must draw all 

reasonable inferences in favor of the nonmoving party. Sluimer 

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary 

judgment cannot be granted where contrary inferences may be drawn 

from the evidence as to material issues." Easter v. Am. W. Fin., 

381 F. 3d 948, 957 (9th Cir. 2004) (citation omitted). A "mere 

disagreement or bald assertion" that a genuine dispute as to a 

material fact exists "will not preclude the grant of summary 

judgment." Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011) 

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 

1989)). When the nonmoving party's claims are factually 

10 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 10 of 32
implausible, that party must "come forward with more persuasive 

evidence than otherwise would be necessary." LVRC Holdings LLC 

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted). 

The substantive law governing a claim or a defense 

determines whether a fact is material. Miller v. Glenn Miller 

Prod., Inc., 454 F. 3d 975, 987 (9th Cir. 2006). If the 

resolution of a factual dispute would not affect the outcome of 

the claim, the court may grant summary judgment. Id. 

DISCUSSION 

Defendants move for summary judgment on all of Plaintiff's 

claims on the grounds that (1) Plaintiff has failed to allege 

personal involvement by Defendants Nooth, Neff, Mordhorst, 

Johnson, Shelton, Williamson, Peters, Gower, White, and Bell; 

(2) Plaintiff has not established Defendants violated his right 

to due process; (3) Plaintiff has not established Defendants used 

excessive force; and (4) Plaintiff has not established he 

received inadequate medical care. 

I. Personal Involvement 

As noted, Defendants move for summary judgment on 

Plaintiff's claims against Defendants Nooth, Neff, Mordhorst, 

Johnson, Shelton, Williamson, Peters, Gower, White, and Bell on 

the ground that Plaintiff has failed to establish these 

Defendants personally participated in the conduct underlying 

11 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 11 of 32
Plaintiff's claims. 

The Ninth Circuit has made clear that "'[l]iability under 

§ 1983 must be based on the personal involvement of the 

defendant. There is no respondeat superior liability under 

section 1983.'" Shallowhorn, 572 F. App'x at 546 (quoting Taylor 

v. List, 880 F.2d 1040, 1045 (9ili Cir. 1989)). Plaintiff does 

not allege or establish any facts that suggest Nooth, Neff, 

Mordhorst, Johnson, Shelton, Williamson, Peters, Gower, White, or 

Bell personally participated in the alleged deprivation of 

Plaintiff's medical care. 

Accordingly, the Court grants Defendants' Motion for Summary 

Judgment as to Plaintiff's claims against Nooth, Neff, Mordhorst, 

Johnson, Shelton, Williamson, Peters, Gower, White, and Bell. 

II. Plaintiff's Claim for Denial of Due Process 

Plaintiff alleges Defendants violated his Fourteenth 

Amendment right to due process "by not allowing Plaintiff due 

process before assaulting and subjecting him to serious pain and 

injury" and "by establishing an unwritten policy allowing 

officers to use 'reactionary force' instead of following 

procedures." 

Plaintiff does not specifically state in his Complaint 

whether he is alleging a claim for substantive or procedural due 

process. The Court, however, infers Plaintiff intends to assert 

a claim for procedural due process based on the allegations in 

12 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 12 of 32
his Complaint. 

The Supreme Court has made clear that the Due Process Clause 

of the United States Constitution "encompasses . a guarantee 

of fair procedure." Zinermon v. Burch, 494 U.S. 113, 125 (1990). 

Accordingly, an inmate may bring an action for a violation of 

procedural due process. "In procedural due process claims, 

[however,] the deprivation by state action of a constitutionally 

protected interest in life, liberty, or property is not in itself 

unconstitutional; what is unconstitutional is the deprivation of 

such an interest without due process of law." Id. (quotation 

omitted) (emphasis in original) . 

The constitutional violation actionable under 

§ 1983 is not complete when the deprivation 

occurs; it is not complete unless and until the 

State fails to provide due process. Therefore, to 

determine whether a constitutional violation has 

occurred, it is necessary to ask what process the 

State provided, and whether it was constitutionally adequate. This inquiry would examine 

the procedural safeguards built into the statutory 

or administrative procedure of effecting the 

deprivation. 

Id. at 126. 

Contrary to the allegation in Plaintiff's Complaint that 

Defendants have established an "unwritten" policy allowing the 

use of reactionary force, Oregon Department of Corrections (ODOC) 

has a number of regulations permitting the use of reactionary 

force and governing its use. Specifically, Oregon Administrative 

Rule 291-013-0010(21) defines Reactive Use of Force as "[t]he use 

13 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 13 of 32
of force in situations where time and circumstances do not permit 

approval by higher ranking employees, or consultation or 

planning." Rule 291-013-0080(1) and (2) provide: 

(1) Reactive use of force will be allowed for 

situations where time and circumstances do not 

permit approval by a supervisor or consultation or 

planning. 

(2) Employees may use any available equipment or 

weapons to prevent the loss of life or serious 

bodily injury, if no other reasonable alternative 

or time is available. 

Accordingly, ODOC Regulations specifically permit the use of 

reactive force when "time and circumstances do not permit" an 

officer to obtain approval of or consultation with a supervisor 

before using force. In his Declaration Captain Thomas Jost 

testifies at the time of the August 31, 2013, incident that 

it was common knowledge amongst SRCI correctional 

officers that inmates can do many things to cause 

harm or endanger an officer via the cuff-port. 

While not a completely inclusive list, the 

following has occurred at SRCI via inmate 

cuff-ports: (1) Inmate stabbing or attempting to 

stab an officer; (2) Inmates "poking" at officers 

with other items in an attempt to injury the 

staff; ( 3) Grabbing a correction officer's arm and 

drawing the arm in to the cell in an attempt to 

break the officer's arm; ( 4) throwing i terns at the 

officer through the cuff-port, such as filling a 

plastic baggie or cup with human waste and then 

tossing it through the cuff-port at an officer in 

an attempt to soil them or infect them with 

various types of diseases. 

10. Correctional officers carry a variety of 

tools on their duty belts that could be seized by 

an inmate. These tools include: hand cuffs, cuff 

keys, facility keys, Q.C. (or cap-stun) spray, 

radios and what is referred to as ''the pipe''. 

14 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 14 of 32
11. The pipe is a device that resembles a small 

baton and is used by correctional staff to 

document their tier-check times via a scanning 

device implanted in the "pipe". While not as 

dangerous as a full-sized police baton, the item 

could be used to injury others. 

12. O.C. or "cap-stun'' spray can be used to 

incapacitate a staff member. 

13. Cuffs can be used as both impact and stabbing 

weapons, cuff keys secreted by inmates could be 

used for escape attempts and the like, as could 

facility keys and a radio can easily be used as an 

impact weapon or additionally as a method to 

gather Intel on tactics which may be about to be 

deployed against said inmate. 

14. Cuff-ports like the one on [Plaintiff's] cell 

posed safety risks to correctional officers. For 

instance, an inmate could crash the door of his 

cell and impart force on the restriction device 

resting against it, thereby causing the device to 

push back from the cuff port and allow the inmate 

to reach through and grab at the officer, try to 

steal items off the officer's duty belt, or throw 

something at the officer. 

Deel. of Thomas Jost at ~~ 9-14. Captain Jost also testifies: 

[I]t was common knowledge among SRCI correctional 

officers that [Plaintiff] had attempted to attack 

or grab Officers Brooks and/or Hickey during a 

previous encounter . . as a result of the 

"cuff-port restriction" notation on the cell 

placard [and due to] daily [staff briefings] 

During these briefings, the issues 

surrounding [Plaintiff's] propensity for violence 

and the cuff-port restriction were discussed. 

Jost Deel. at~ 7. Officer Harrison testifies he had been 

briefed on Defendant's "attempted assault" of Officers Brooks and 

Hickey on August 26, 2013, and he was 

aware that [Plaintiff] had been previously charged 

with Staff Assault for assaulting Officer Olive on 

15 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 15 of 32
August 11, 2010. I was also aware of six previous 

disciplinary rule violations by [Plaintiff] for 

Inmate Assault, two of which ended in a medical 

trip for the inmate that [Plaintiff] assaulted. 

Deel. of Stuart Harrison at !! 5-6. The record also reflects at 

the time that Plaintiff reached out of the cuff port and 

attempted to grab Officer Harrison, Officer Harrison was alone on 

the floor and did not have ready access to a supervisor to 

consult regarding Defendant's actions. Officer Harrison 

testifies he "truly believed that [Plaintiff] was attempting to 

either injure him or trying to grab a possible weapon from [his] 

duty belt." Harrison Deel. at ! 10. Thus, the record reflects 

Harrison was aware of Plaintiff's August 26, 2013, interaction 

with Officers Brooks and Hickey as well as several prior charges 

against him for assaulting officers and inmates; Officer Harrison 

believed Plaintiff was attempting to either injure Officer 

Harrison or to grab a potential weapon; and, as noted, Officer 

Harrison was alone on the floor. Viewing this record in the 

light most favorable to Plaintiff, the Court concludes the fact 5 

Officer Harrison used reactive force against Plaintiff was in 

accordance with ODOC regulations, and, therefore, Plaintiff's Due 

Process claim fails as a matter of law. 

Accordingly, the Court grants Defendants' Motion for Summary 

5 The degree to which Officer Harrison's conduct may have 

involved unconstitutionally excessive force in violation of the 

Eighth Amendment is not affected by this determination. 

16 - OPINION AND ORDER 

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Judgment as to Plaintiff's Due Process Claim. 

III. Plaintiff's First Amendment Claim 

Plaintiff alleges in his Complaint that Defendants violated 

the First Amendment when they did "not call[] a supervisor when 

Plaintiff asked . . and . . retaliat[ed] against Plaintiff 

for attempting to exercise his [F]irst Amendment rights with the 

use of excessive force." Defendants do not address Plaintiff's 

First Amendment claim and analyze his claim only under the rubric 

of the Eighth Amendment as one for excessive force. 

Nevertheless, the Court concludes on this record that Plaintiff 

has not established a claim for violation of the First Amendment. 

The Ninth Circuit has held 

[w]ithin the prison context, a viable claim of 

First Amendment retaliation entails five basic 

elements: ( 1) An assertion that a state actor 

took some adverse action against an inmate 

(2) because of (3) that prisoner's protected 

conduct, and that such action (4) chilled the 

inmate's exercise of his First Amendment rights, 

and (5) the action did not reasonably advance a 

legitimate correctional goal. 

Rhodes v. Robinson, 408 F.3d 559, 567-68 (9'h Cir. 2004) 

(citations omitted). 

Plaintiff alleges in his Complaint that on August 26, 2013, 

he "asked for Officer Brooks to call the Sergeant so I could talk 

to him about being denied a shower. When Brooks refused, I took 

the cuffport 'hostage' so he would have to call the Sgt., but 

instead he slammed the door on my hand . . and called for 

17 - OPINION AND ORDER 

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Hickey's assistance." In his Declaration in support of his 

Opposition to Defendant's Motion, however, Plaintiff does not 

testify that he asked to speak to a Sergeant and only states he 

"was denied a shower." 

Officer Brooks testifies on August 26, 2013, Plaintiff was 

denied a shower and he "indicated to [Officer Brooks] that he 

wished to speak with a sergeant." Brooks Deel. at ! 3. Officer 

Brooks "told [Plaintiff that if] he needed [to, he] could speak 

to a sergeant when the sergeant made their [sic] rounds." Id. 

Plaintiff also alleges in his Complaint that on August 31, 

2013, he asked Officer Harrison to place Plaintiff's dinner in 

the cuff-port restriction device "by [Plaintiff's] door rather 

than the one by [his] next door neighbor's cell, since he was 

being accused of throwing feces at a CO." Compl. at ! 9. 

Plaintiff alleges Officer Harrison refused and denied him dinner. 

Plaintiff, therefore, asked Officer Harrison to call the Sergeant 

"so we could resolve this issue several times but he refused to, 

so at about 6:30 p.m. [Plaintiff] took the cuff port and the 

restriction device hostage." Compl. at ! 10. 

Officer Harrison testifies in his Declaration that at dinner 

time on August 31, 2013, he ordered Plaintiff to stand "against 

the back-wall of the cell and [he] prepared to use the 

cuff-port device. [Plaintiff,] however, refused to comply. As a 

result, he was not provided with his evening meal due to his 

18 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 18 of 32
refusal to follow directives." Officer Harrison does not 

indicate whether Plaintiff asked to speak with a sergeant. 

Assuming without deciding that requesting to speak with a 

sergeant is protected conduct under the First Amendment, 

Plaintiff has not established there is any genuine issue of 

material fact as to whether Defendants injured Plaintiff because 

of his request to speak with a sergeant. As noted, Plaintiff 

concedes he took the cuffport "hostage" on August 26 and 31, 

2013, by putting his arms through the cuff port. The Court finds 

it was not a constitutionally unreasonable response to this 

undisputed conduct for Officers Brooks and Harrison to perceive 

Plaintiff's actions as an attempt to grab them or to reach 

various items on their persons. In addition, Plaintiff refused 

to comply with the Officers' orders to pull his arms out of the 

cuff port and back into his cell. 

The Court concludes on this record that Plaintiff has not 

established any issue of material fact that Defendants took any 

adverse action against him because of his request to speak with a 

sergeant and, in fact, the record reflects Defendant Officers 

were reacting to Plaintiff taking the cuff-port hostage and did 

so in the manner permitted under ODOC Regulations. 

Accordingly, the Court grants Defendants' Motion for Summary 

Judgment as to Plaintiff's First Amendment Claim. 

19 - OPINION AND ORDER 

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IV. Plaintiff's Eighth Amendment Claim 

Although it is not entirely clear, it appears Plaintiff 

seeks to assert a claim for excessive force in violation of the 

Eighth Amendment arising from the events of August 26, 2013, 

and/or August 31, 2013. 

A. Standards 

"'[T]he unnecessary and wanton infliction of pain 

constitutes cruel and unusual punishment forbidden by the Eighth 

Amendment."' Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting 

Whitley v. Albers, 475 U.S. 312 (1986)). When prison officials 

are accused of using excessive physical force . . in violation 

of the Eighth Amendment, "the core judicial inquiry" is "'whether 

force was applied in a good-faith effort to maintain or restore 

discipline, or maliciously and sadistically to cause harm. ou 

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson, 503 U.S. 

at 7) . 

The Ninth Circuit has held courts should consider five 

factors when determining whether the use of force was wanton and 

unnecessary: 

(1) the extent of injury suffered by an inmate; (2) the 

need for application of force; (3) the relationship 

between that need and the amount of force used; (4) the 

threat reasonably perceived by the responsible 

officials; and (5) any efforts made to temper the 

severity of a forceful response. 

Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (citing 

Hudson, 503 U.S. at 7). "[C]ourts[, however,] must accord prison 

20 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 20 of 32
administrators wide-ranging deference in the adoption and 

execution of policies and practices to further institutional 

order and security." Bell v. Wolfish, 441 U.S. 520, 547 (1979). 

See also Jeffers v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001) 

(same). 

B. August 26, 2013, Incident 

To the extent that Plaintiff asserts a claim for 

violation of the Eighth Amendment related to the events that 

occurred August 26, 2013, Defendants move for summary judgment on 

the grounds that Plaintiff's injury was de minimis and the force 

used by Officers Brooks and Hickey was not excessive. 

When prison officials maliciously and sadistically use 

force to cause harm, "'contemporary standards of decency always 

are violated . . whether or not significant injury is evident. 

Otherwise, the Eighth Amendment would permit any physical 

punishment, no matter how diabolic or inhuman, inflicting less 

than some arbitrary quantity of injury.'" Id. (quoting Hudson, 

503 U.S. at 9). Nevertheless, the Supreme Court has made clear 

that the absence of serious injury is not irrelevant and that 

''t]he extent of injury suffered by an inmate is one factor that 

may suggest whether the use of force could plausibly have been 

thought necessary in a particular situation." Id. at 38 

(quotation omitted). 

As we stated in Hudson, not "every malevolent 

touch by a prison guard gives rise to a federal 

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Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 21 of 32
Id. 

cause of action." 503 U.S. at 9, 112 S. Ct. 995. 

"The Eighth Amendment's prohibition of 'cruel and 

unusual' punishments necessarily excludes from 

constitutional recognition de minimis uses of 

physical force, provided that the use of force is 

not of a sort repugnant to the conscience of 

mankind." Ibid. (some internal quotation marks 

omitted). An inmate who complains of a "push or 

shove" that causes no discernible injury almost 

certainly fails to state a valid excessive force 

claim. Ibid. (quoting Johnson v. Glick, 481 F.2d 

1028, 1033 (2d Cir.1973)). 

Injury and force, however, are only imperfectly 

correlated, and it is the latter that ultimately 

counts. An inmate who is gratuitously beaten by 

guards does not lose his ability to pursue an 

excessive force claim merely because he has the 

good fortune to escape without serious injury. 

Accordingly, the Court concluded in Hudson that 

the supposedly "minor" nature of the injuries 

"provide[d] no basis for dismissal of [Hudson's] 

§ 1983 claim." 

The undisputed record reflects Plaintiff suffered only 

bruising and scratches on his arm from the incident on August 26, 

2013. A number of district courts in the Ninth Circuit, 

including courts in this district, have held injuries such as 

those suffered by Plaintiff on August 26, 2013, are de minimus 

and, as such, do not support a claim for violation of the Eighth 

Amendment. See, e.g., Jordan v. Edwards, No. CV 15-3125 DOC 

(FFM), 2016 WL 2753389, at *5 (C. D. Cal. Apr. 18, 2016) ("A shove 

and rough handcuffing are relatively minor uses of force and are 

far from 'repugnant to the conscience of mankind.'"); Taylor v. 

Johnson, No. C 12-3424 CRB (PR), 2015 WL 6735309, at *3 (N.D. 

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Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 22 of 32
Cal. Nov. 4, 2015) (loss of an artificial tooth on a partial 

dental plate and a chip on a different artificial tooth were de 

minimum injuries that did not support an Eighth Amendment claim); 

Anthony v. Shackmann, No. 07-CV-698-HU, 2009 WL 1065071, at *4 

(D. Or. Apr. 17, 2009), vacated on other grounds, 402 F. App'x 

207 (9th Cir. 2010) (prison guard's open-handed blow to the 

plaintiff's temple did not violate the Eighth Amendment); Swift 

v. Iramina, No. 08-00100 JMS-KSC, 2008 WL 1912470, at *3 (D. Haw. 

Apr. 29, 2008) (allegation that prison guard pushed plaintiff in 

response to question did not state Eighth Amendment violation) 

This Court likewise concludes the amount of injury Plaintiff 

suffered on August 26, 2013, was de minimus. Although the extent 

of injury is not dispositive of Plaintiff's Eighth Amendment 

claim, the Court finds that factor weighs in favor of Defendants. 

The undisputed record also reflects the second factor 

regarding the need for application of force also weighs in favor 

of Defendants. As noted, Defendants have established the 

potentially serious dangers and concerns of corrections officers 

that arise when inmates reach through the cuff-port door or take 

the cuff port "hostage" as Plaintiff did on August 26, 2013. As 

Captain Jost explained in his Declaration, the threats reasonably 

perceived by corrections officers generally and Officers Brooks 

and Hickey specifically are numerous and include an inmate 

"crash[ing] the door of his cell and impart[ing] force on the 

23 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 23 of 32
' ' 

restriction device resting against it, thereby causing the device 

to push back from the cuff port and allow[ing] the inmate to 

reach through and grab at the officer, try to steal items off the 

officer's duty belt, or throw something at the officer." Jost 

Deel. at ~ 14. In addition, Officers Brooks and Hickey attempted 

to temper the severity of their response. They ordered Plaintiff 

to pull his arms out of the cuff port and back into his cell. 

When it became clear that Plaintiff was not going to comply, 

Officers Brooks and Hickey stepped to the side of the cuff port 

where Plaintiff could not reach them and waited for assistance 

from Sergeant Johnson. 

On this record the Court concludes Plaintiff has not 

established any issue of material fact as to whether Defendants 

used excessive force in violation of the Eighth Amendment on 

August 26, 2013. 

C. August 31, 2013, Incident 

Defendants also move for summary judgment as to 

Plaintiff's excessive-force claim related to the August 31, 2013, 

incident on the ground that the force used by Officer Harrison 

was not excessive. 

Defendants do not assert Plaintiff did not suffer a 

serious injury when his arm was broken during the August 31, 

2013, incident. Defendants, however, point out that Officer 

Harrison was aware of Plaintiff's prior interactions with 

24 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 24 of 32
Officers Brooks and Hickey as well as Plaintiff's six previous 

disciplinary rule violations for Inmate Assault. In addition, as 

noted Officer Harrison was aware of the potentially severe risks 

associated with inmates reaching out of the cuff port, and 

Officer Harrison ~truly believed that [Plaintiff] was attempting 

to either injure him or trying to grab a possible weapon from 

[his] duty belt.n Harrison Deel. at ! 10. Officer Harrison was 

alone on the floor and did not have backup immediately available 

to assist him when Plaintiff reached out of the cuff port and 

attempted to grab him. The record reflects Plaintiff also 

grabbed Officer Harrison's arm and appeared to be attempting to 

pull Office Harrison's arm into his cell, an event that Officer 

Harrison had been trained to recognize as extremely dangerous for 

a corrections officer. Even when viewed in the light most 

favorable to Plaintiff, the Court concludes the record 

establishes Officer Harrison reasonably perceived a serious 

threat when Plaintiff reached out of the cuff port and grabbed at 

him, which indicates there was a reasonable need for the 

application of force. Moreover, Plaintiff has not introduced any 

evidence from which a rational trier of fact could find 

otherwise. Accordingly, on this record the Court concludes 

Plaintiff has not established any issue of material fact that the 

force used against him by Officer Harrison on August 31, 2013, 

was excessive. 

25 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 25 of 32
Accordingly, the Court grants Defendants' Motion for 

Summary Judgment as to Plaintiff's Eighth Amendment claim for 

excessive force. 

V. Plaintiff's Claim for Inadequate Medical Care 

As noted, Plaintiff contends Defendants were deliberately 

indifferent to his serious medical needs in violation of the 

Eighth Amendment when they failed to provide him with sufficient 

medical treatment and pain medication for his broken arm and when 

they failed to provide him with sufficient mental-health 

treatment. 

Deliberate indifference to serious medical needs is a 

cognizable claim for violation of the Eighth Amendment 

proscription against cruel and unusual punishment. Estelle v. 

Gamble, 429 U.S. 97, 104 (1976). See also Colwell v. Bannister, 

763 F.3d 1060, 1066 (9th Cir. 2014) (same). 

To sustain [a] deliberate indifference claim, [a 

plaintiff must] meet the following test: "First, 

the plaintiff must show a serious medical need by 

demonstrating that failure to treat a prisoner's 

condition could result in further significant 

injury or the unnecessary and wanton infliction of 

pain. Second, the plaintiff must show the 

defendant's response to the need was deliberately 

indifferent." 

Peralta v. Dillard, 704 F.3d 1124, 1127 (9th Cir. 2013) (quoting 

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). To satisfy 

the second prong (i.e., that defendant's response to the need was 

deliberately indifferent), a plaintiff must show there was "'(a) 

26 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 26 of 32
a purposeful act or failure to respond to a prisoner's pain or 

possible medical need and (b) harm [was] caused by the 

indifference.'" Id. (quoting Jett, 439 F.3d at 1096). 

Deliberate indifference may be established by showing that prison 

officials have denied, delayed, or intentionally interfered with 

medical treatment or by the way prison officials have provided 

medical care. Jett, 439 F.3d at 1096. 

"Mere negligence in diagnosing or treating a medical 

condition, without more, does not violate a prisoner's Eighth 

Amendment rights." Toguchi v. Chung, 391 F. 3d 1051, 1057 (9th 

Cir. 2004) (citation omitted). See also Wilhelm v. Rotman, 680 

F. 3d 1113, 1122 (9th Cir. 2012) ("Medical malpractice does not 

become a constitutional violation merely because the victim is a 

prisoner.") . In addition, "a plaintiff's showing of nothing more 

than a difference of medical opinion as to the need to pursue one 

course of treatment over another [is] insufficient, as a matter 

of law, to establish deliberate indifference." Wilhelm, 680 F.3d 

at 1122 (quotation omitted). 

A. Medical Care and Pain Medication 

Plaintiff alleges he was denied adequate medical care 

and pain medication after his arm was broken. Plaintiff asserts 

his humerus is bent inward and occasionally still causes him 

pain. As noted, the undisputed facts show the following: 

Plaintiff was admitted to the emergency room of the 

27 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 27 of 32
. ' ' . 

Saint Alphonsus Medical Center on August 31, 2013, after his arm 

was broken. Dr. Wilhemsen ordered Plaintiff to keep his arm in a 

splint and immobilized and to follow-up with an orthopedic 

surgeon within four to five days. Plaintiff was discharged with 

instructions to take Norco (an acetaminophen-Hydrocodone 

combination) every six hours as needed. 

On September 1, 2013, at 12:05 a.m. Plaintiff returned 

to SRCI. Plaintiff's discharge instructions were given to Inmate 

Health Services, and Plaintiff was provided with pain medication. 

At 12:30 p.m. Plaintiff reported to Nurse Megan Ashton that the 

pain medication he had received was effective. 

was kept immobilized in a splint. 

Plaintiff's arm 

On September 3, 2013, after Plaintiff complained of 

breakthrough pain, Dr. Gulick prescribed MS Cantin twice a day. 

Dr. Gulick also ordered an appointment for Plaintiff with 

Dr. Peterson to evaluate Plaintiff's arm to see whether surgery 

ORIF was necessary. 

On September 4, 2013, Dr. Peterson noted Plaintiff's 

medial shaft was in "an excellent position° and directed 

Plaintiff to continue wearing the splint and to keep his arm 

immobilized. Dr. Peterson also ordered Plaintiff to undergo 

follow-up x-rays in 1-2 weeks. 

The record reflects Plaintiff was seen by various 

doctors and other medical staff at SRCI for treatment related to 

28 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 28 of 32
' ' . ' 

his right-arm fracture at least 14 times between September 2013 

and May 2014. Plaintiff underwent x-rays of his right arm four 

separate times between September 2013 and May 2014. All of his 

x-rays showed normal healing with only "slight malalignment" 

within acceptable medical parameters. Plaintiff's final x-ray on 

May 15, 2014, showed 

fusion of the oblique fracture of the middiaphysis 

with smooth cortical lines and only slight 

malalignment (acceptable alignment of a humeral 

shaft fracture is considered to be 3 centimeters 

of shortening, 30 degrees of varus/valgus 

angulation (bowing of the bone), and 20 degrees of 

anterior/posterior angulation). There was no 

periostitis seen and no osseous destructive 

lesions noted. The shoulder and elbow 

articulations were intact. 

Gulick Deel. at ~ 42; Ex. 1 at 12. 

Similarly, Plaintiff's narcotic pain medications were 

reviewed and renewed numerous times until January 29, 2014, when 

corrections officers found a "cache" of discontinued medications 

hidden in the toilet in Plaintiff's cell. After January 29, 

2014, Plaintiff was prescribed Tylenol and anti-inflammatories 

for pain regularly. 

Viewing the evidence in the light most favorable to 

Plaintiff, the Court concludes a reasonable juror could not find 

on this record that Defendants were deliberately indifferent to 

Plaintiff's serious medical needs with respect to the treatment 

of his broken arm and the administration of medication. 

Plaintiff, therefore, has not established Defendants violated 

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Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 29 of 32
Plaintiff's rights under the Eighth Amendment. 

B. Mental-Health Treatment 

In his Complaint Plaintiff also alleges Defendant 

Richard Powelson was deliberately indifferent to his serious 

mental- health needs when he did not authorize a "BHS radio" for 

Plaintiff following surgery. Specifically, Plaintiff alleges in 

his Complaint that he advised Powelson that he could not read due 

to the narcotics he was taking for pain, and he could not write 

or "move around" due to pain. Plaintiff alleges Powelson 

"promised to have the Inmate Program Committee or Security 

authorize . a BHS radio." Compl. at 'lI 27. Powelson, 

however, never asked for a radio. 

Powelson testifies in his Declaration that he was a 

qualified mental-health specialist for the Behavior Health 

Services (BHS) unit at SRCI during the relevant period. On 

September 1, 2013, he met with Plaintiff, who told Powelson that 

he was "not doing well, apparently due to his . loss of 

privileges." Deel. of Richard Powelson at 'lI 2. Plaintiff "asked 

BHS to approve a radio 'or there is going to be some real 

trouble.'" Powelson Deel. at 'lI 2. Powelson notes in his 

Declaration that Plaintiff had an MP3 player at the time of his 

request for a radio. Powelson testifies radios are distributed 

by SRCI security staff "as a reward or incentive to inmates in 

exchange for reaching a certain level and/or maintaining a period 

30 - OPINION AND ORDER 

Case 2:14-cv-01576-BR Document 74 Filed 07/01/16 Page 30 of 32
of good conduct." Id. Powelson asked security about getting 

Plaintiff a radio, but "they were not in favor of it because of 

his recent misconduct. [Plaintiff], like other inmates, had the 

ability to get a radio so long as he followed the rules and 

completed requisite programming to earn a radio." Id. 

As noted, in order to sustain a claim for deliberate 

indifference in violation of the Eighth Amendment, Plaintiff 

"must show a serious medical need by demonstrating that failure 

to treat a prisoner's condition could result in further 

significant injury or the unnecessary and wanton infliction of 

pain." Peralta, 704 F.3d at 1127. Viewing the evidence in the 

light most favorable to Plaintiff, the Court concludes Plaintiff 

has not established any issue of material fact as to whether the 

failure to provide him with a radio could result in a significant 

injury to him or in the unnecessary or wanton infliction of pain. 

Plaintiff, therefore, has not established Defendants violated 

Plaintiff's rights under the Eighth Amendment when Powelson 

failed to provide Plaintiff with a radio. 

Accordingly, the Court grants Defendants' Motion for Summary 

Judgment. 

CONCLUSION 

For these reasons, the Court GRANTS Defendants' Motion 

(#55) for Summary Judgment and DISMISSES this matter with 

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prejudice. 

IT IS SO ORDERED. 

DATED this 1st day of July, 2016. 

ANNA J. BROWN 

United States District Judge 

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