IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOHN RAINS, 

Plaintiff, 

vs. 

DR. EDWARDS; DR. BUCKLER; 

CINDY WADSWORTH; A. ERIKSSON; 

DR. ADAMS; REBECCA YAZY; and 

DAN BERGER, 

Defendants. 

Jennifer L. Coughlin 

Hurley Re & Grueter 

747 S.W. Mill View Way 

Bend, OR 97701 

Michelle R. Burrows 

Michelle R. Burrows, PC 

420 S.W. Washington St., Ste. 300 

Portland, OR 97140 

Attorneys for plaintiff 

Page 1 - OPINION AND ORDER 

No. 3:15-cv-00915-CL 

OPINION AND ORDER 

Case 3:15-cv-00915-AA Document 38 Filed 04/17/16 Page 1 of 10
Robert E. Sullivan 

Heather J. Van Meter 

Assistant Attorneys General 

Oregon Department of Justice 

Trial Division 

1162 Court Street N.E. 

Salem, OR 97301 

Ronald J. Clark 

Heidi L. Mandt 

Bullivant Houser Bailey, PC 

300 Pioneer Tower 

888 S.W. Fifth Ave. 

Portland, OR 97204 

Attorneys for defendants 

AIKEN, Judge: 

In this prisoner civil rights action, plaintiff John Rains alleges defendant employees of the 

Oregon Youth Authority were deliberately indifferent to his serious medical need related to a lifethreatening adverse reaction to medications prescribed while he was incarcerated at the McLaren 

Youth Facility. Plaintiff contends defendants' actions violated his rights under the Eighth and 

Fourteenth Amendments to the United States Constitution. He also asserts a state medical 

malpractice claim ("state claim"). Defendants moved to dismiss the complaint. They argued 

plaintiff failed to plead facts sufficient to state an Eighth Amendment violation and contended 

Eleventh Amendment immunity barred the assertion of the state claim in federal court. 

Magistrate Judge Clarke issued his Report and Recommendation on November 20, 2015 

(doc. 25), concluding plaintiff adequately stated a claim for relief under the Eighth Amendment, but 

recommending dismissal of the state claim on the ground of Eleventh Amendment immunity. 

Plaintiff filed objections (doc. 27) to the Report and Recommendation and defendants filed responses 

(docs. 28 and 29). Plaintiffs objections focused only on the state claim. After reviewing plaintiffs 

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Case 3:15-cv-00915-AA Document 38 Filed 04/17/16 Page 2 of 10
objections, defendants' responses, and the parties' supplemental briefs on the Eleventh Amendment 

question, I decline to adopt Judge Clarke's recommendation regarding the state claim, and instead 

hold that claim survives defendants' motion to dismiss. 1 

STANDARD 

The Magistrates Act provides the district court may "accept, reject or modify, in whole or in 

part, the findings or recommendations made by the magistrate judge." 28 U.S. C. § 63 6(b )( 1 ). When 

a party objects to any portion of the Magistrate's Report and Recommendation, the district court 

must make a de novo determination of that portion of the magistrate judge's report. Fed. R. Civ. P. 

72(b)(3); see also McDonnell Douglas Corp. v. Commodore Bus. Machs. Inc., 656F.2d1309, 1313 

(9th Cir. 1981) (For dispositive motions, "the statute grants the broadest possible discretion to the 

reviewing district court."). 

DISCUSSION 

Defendants argue the Eleventh Amendment requires dismissal of plaintiffs state claim. In 

both their responses to plaintiffs objections and their supplemental briefs, defendants focus on 

whether the Oregon Tort Claims Act ("OTCA") waives Eleventh Amendment immunity. That focus 

is misplaced. I agree with defendants that nothing in the OTCA waives the State of Oregon's 

Eleventh Amendment immunity. See Estate of Pondv. Oregon, 322 F. Supp. 2d 1161, 1165 (D. Or. 

2004). But in this case, whether the state has waived Eleventh Amendment immunity is not the 

1 I agree with Judge Clarke that plaintiff adequately stated a claim for relief under the 

Eighth Amendment. I also agree plaintiffs Fourteenth Amendment claims should be dismissed 

to the extent they were intended to allege independent violations of plaintiffs due process rights. 

However, Eighth Amendment claims against state actors, as distinct from federal actors, must be 

asserted through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 239-40 (1972). 

Plaintiffs Fourteenth Amendment claims thus survive to the extent that they are the vehicle by 

which plaintiff asserts his Eighth Amendment claims. 

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Case 3:15-cv-00915-AA Document 38 Filed 04/17/16 Page 3 of 10
question; the question is whether Eleventh Amendment immunity applies at all. 

The Eleventh Amendment bars citizens from bringing suit against a state in federal court 

unless immunity is waived by the state or abrogated by Congress. Seminole Tribe of Fla. v. Florida, 

517 U.S. 44, 54 (1996). "Eleventh Amendment immunity extends to actions against state officers 

sued in their official capacities because such actions are, in essence, actions against the governmental 

entity of which the officer is an agent." Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982). 

State employees do not, however, enjoy Eleventh Amendment immunity when they are sued in their 

individual capacities, because in such a suit "the state is not the real party in interest." Stoner v. 

Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1125 (9th Cir. 2007). 

The distinction between individual capacity and official capacity is not whether the employee 

was acting within the official scope of his or her duties; it is whether the action "seeks damages from 

the individual defendants ratherthan the state treasury." Id. In Hafer v. Melo, 502 U.S. 21 (1991), 

the Supreme Court explained the difference between official-capacity and individual-capacity suits 

is "the capacity in which the state officer is sued, not the capacity in which the officer inflicts the 

alleged injury." Id. at 26. An official-capacity suit is a suit against the state itself. These suits are 

premised on the official acting as an agent of the state. As a result, to obtain damages in an officialcapacity suit against a state employee, a plaintiff must demonstrate some "policy or custom" of the 

governmental entity played a role in the violation. Id. at 25. The only defenses and immunities the 

defendant may assert in such a suit are those the governmental entity possesses. An individualcapacity suit, by contrast, is a suit against a state employee for individual action "taken under color 

of state law." Id. There is no requirement a plaintiff establish official policy or custom to prevail 

on such a claim. However, unlike official-capacity defendants, individual-capacity defendants may 

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Case 3:15-cv-00915-AA Document 38 Filed 04/17/16 Page 4 of 10
assert personal immunity defenses. For example, they may assert they reasonably relied on existing 

law. 

The State of Oregon is not named as a defendant in this lawsuit. The defendants are sued in 

their individual capacities. See Com pl. if 81 (acknowledging Eleventh Amendment immunity bars 

suit against the State of Oregon in federal court and discussing when it is permissible to sue state 

employees individually). Accordingly, the Eleventh Amendment is only available as a defense if 

something converts this individual-capacity suit into an official-capacity suit or a direct suit against 

the state. Defendants argue that conversion is accomplished by the OTCA. 

Two provisions of the OTCA are relevant to this analysis: Or. Rev. Stat. § 3 0.271 ("damages 

cap provision") and Or. Rev. Stat. § 30.265 ("substitution provision"). The damages cap provision 

limits the liability of the state and its "officers, employees and agents acting with the scope of their 

employment or duties." Or. Rev. Stat.§ 30.271. Although the amount of the cap has changed, this 

provision has been part of the OTCA since it was enacted in 1967. Clarke v. Or. Health Sc is. Univ., 

175 P.3d 418, 422 (Or. 2007). Before 1967, the State of Oregon could not be sued in tort in any 

court. The OTCA partially waived this immunity in state court only, subject to the monetary limits 

imposed through the damages cap provision. The 1967 version of the OTCA had no effect on suits 

against public officers, employees, or agents, who "remained personally liable for torts committed 

within the course and scope of their employment." Id. 

The substitution provision authorizes the substitution of the public body as the defendant in 

certain suits against a state officer, employee, or agent. Or. Rev. Stat. § 30.265(3). This provision 

was added to the OTCA in 1991. Clarke, 175 P.3d at 423. Upon a motion from the state, the 1991 

amendment mandated the substitution of the public body as the "sole" defendant in tort claims 

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brought against officers, employees, or agents of the public body acting "within the scope of their 

employment or duties." Id.; see also Or. Rev. Stat. § 30.265(1 )-(2). This "eliminated entirely any 

claim against any officer, employee, or agent fortheir work-related torts." Clarke, 175 P.3d at 423. 

In other words, it converted individual-capacity suits into suits against the State of Oregon. Once 

that substitution had taken place, the state could raise an Eleventh Amendment immunity defense, 

and federal courts were bound to dismiss the state tort claims. Lumbreras v. Roberts, 319 F. Supp. 

2d 1191, 1214 (D. Or. 2004). 

In 2007, the Supreme Court of Oregon held the damages cap and substitution provisions 

violated the Oregon Constitution to the extent they prevented plaintiffs from suing individual state 

employees for damages significantly in excess of the OTCA's cap. Clarke, 175 P.3d at 434. The 

Remedy Clause of the Oregon Constitution provides "every man shall have remedy by due course 

oflaw for injury done him in his person, property, or reputation." Or. Const. Art. I,§ 10. Oregon 

courts have interpreted this clause as "preserv[ing] for future generations, against legislative or other 

encroachment, the right to obtain a remedy for injury to interests in person, property, and reputation 

under circumstances in which Oregon law provided a remedy for those injuries when Oregon ratified 

its constitution." Clarke, 175 P.3d at432. The Remedy Clause does not "freeze[] in place commonlaw remedies" as they existed when the constitution was ratified; rather, the Oregon Legislature has 

the authority to fashion substitute remedies. Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 354 

(Or. 2001 ). In so doing, however, the legislature may not "substitute an 'emasculated remedy' that 

is incapable of restoring the right that has been injured." Id. (quoting Westv. Jalojf, 232 P. 642, 645 

(1925)). 

In Clarke, the applicable damages cap was $200,000. 175 P.3d at 421. The plaintiff, who 

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as a three-month-old baby "suffered prolonged oxygen deprivation causing him permanent brain 

damage" while in the surgical intensive care unit at the public-body hospital, sought more then $12 

million in economic damages. Id. The court held the "complete statutory elimination of [the 

individual employees'] liability" left the plaintiff with "an emasculated version of the remedy that 

was available at common law." Id. at 433-34. There was no parallel constitutional problem with 

limiting the liability of the public body, because it, unlike the individual defendants, "would have 

been entitled to sovereign immunity at common law." Id. at 434. 

In 2011, in response to Clarke, the Oregon Legislature amended the OTCA. Johnson v. 

Gibson, 918 F. Supp. 2d 1075, 1078 (D. Or. 2013). The legislature amended the law in three ways. 

First, it dramatically increased the level at which damages are capped. See Or. Rev. Stat. § 

30.271(2). Second, it altered the substitution provision. The OTCA now provides for substitution 

of the public body only where the complaint "alleges damages in an amount equal to or less than the 

damages" permitted under the damages cap provision. Id. § 30.265(3 ). If a plaintiff alleges damages 

in excess of the statutory cap, "the action may be brought and maintained against an officer, 

employee or agent of a public body, whether or not the public body is also named as a defendant." 

Id. § 30.265(4). The action against the individual employee remains subject to the damages cap 

provision. Id. Third, the legislature enacted a provision that would permit a constitutional challenge 

to the new damage-cap levels to proceed directly to the Supreme Court of Oregon, bypassing the 

Oregon Court of Appeals. Id. § 30.274. 

Here, plaintiff alleged $3 million in damages. The applicable cap for this action is, at most, 

$2 million. See id. § 30.271(2)(e) ($1.9 million cap for causes of action arising during state fiscal 

year 2014); id. § 30.271(2)(£) ($2 million cap for causes of action arising during state fiscal year 

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Case 3:15-cv-00915-AA Document 38 Filed 04/17/16 Page 7 of 10
2015). Accordingly, the OTCA, as amended in 2011, provides no mechanism for substituting the 

public body as a defendant. 

Defendants argue this nonetheless remains a suit against the state because the same damages 

cap applies whether or not the public body is substituted as a defendant. But they have not explained 

how application of the same damages cap converts this individual-capacity suit into a suit against 

the state. The Oregon Legislature could decide to limit damage awards in all medical malpractice 

cases.2 But such a law would not grant private physicians access to an Eleventh Amendment 

immunity defense even if the damages cap were set at a level equal to the damages cap for tort 

claims against the state. 

The plain text of the OTCA applies the damages cap provision to two different groups of 

defendants: substituted public bodies, through Or. Rev. Stat. § 30.265(3), and individual state 

employees, through Or. Rev. Stat. § 30.265( 4). The existence of the two separate provisions strongly 

suggests the legislature intended to create a meaningful difference between suits against the public 

body and suits against the individuals. Legislative history confirms that suggestion: subsection 

30.265( 4) was added to the OTCA to "respond to the apparent concerns of ... [the Clarke court] that 

because the substitution provision completely eliminates an injured person's right to sue an 

individual, ... in very high damages cases, that provision may leave the claimant with an inadequate 

remedy in violation of the Oregon Constitution." Doc. 35 at 10 (emphasis in original) (remarks of 

OHSU vice president and general counsel to the Oregon Senate Committee on the Judiciary 

regarding the 2011 amendments to the OTCA). The 2011 amendments were specifically designed 

2 Of course, under Clarke, such a law would run afoul of the Remedy Clause in a case 

involving damages significantly in excess of the cap. 

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to revive suits against individual employees when a plaintiff alleges damages in excess of the 

statutory cap. In these revived individual-capacity suits, state employees simply do not possess 

Eleventh Amendment immunity. 3 

Defendants argue the Oregon Legislature never intended the amendments to the OTCA to 

waive the state's Eleventh Amendment immunity in federal court. As explained, however, the issue 

here is not waiver of Eleventh Amendment immunity but applicability of that immunity. The 

Oregon Legislature may prefer for the state never to be haled into federal court to defend its 

employees against state tort claims. It could achieve that goal by eliminating the damages cap 

provision in the OTCA and reinstating the substitution provision for all cases. But that is not the law 

the legislature enacted. This is a suit against defendants in their individual capacity, and individualcapacity defendants cannot assert an Eleventh Amendment immunity defense. Accordingly, 

plaintiffs state claim survives the motion to dismiss. 

CONCLUSION 

I ADOPT IN PART and DO NOT ADOPT IN PART Judge Clarke's Report and 

Recommendation (doc. 25) as follows: ( 1) I adopt the portion of the Report and Recommendation 

regarding defendants' motion to dismiss the Eighth and Fourteenth Amendment claims; and (2) I do 

not adopt the portion of the Report and Recommendation regarding defendants' motion to dismiss 

3 Oregon law requires the state to indemnify its employees for acts and omissions 

"occurring the performance of duty." Or. Rev. Stat. § 30.285(1). However, this does not change 

the Eleventh Amendment analysis, because it is well-established that individual-capacity suits 

against state actors do not violate the Eleventh Amendment even if the state has an 

indemnification policy. Stoner, 502 F.3d at 1125. Moreover, the state's obligation to indemnify 

an employee is itselflimited by the damage cap provision. Or. Rev. Stat. § 30.285(6). If the 

Supreme Court of Oregon were to authorize a damage award above the cap level, it is not at all 

clear the state would be statutorily obligated to pay the damages in excess of the cap. 

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the state malpractice claim. Defendants' motions to dismiss (docs. 17 & 18) are GRANTED as to 

any independent Fourteenth Amendment due process claims and DENIED in all other respects. 

IT IS SO ORDERED. 

Dated this qtJtof April 2016. 

Ann Aiken 

United States District Judge 

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