IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DELANO D. DA VIS, 

Plaintiff, 

v. 

MULTNOMAH COUNTY, et al. 

Defendant. 

JONES, Judge: 

Portland Division 

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3: 14-cv-01815-JO 

OPINION AND ORDER 

Plaintiff Delano Davis, acting prose, brought this action under 42 U.S.C. § 1983 alleging 

that defendants violated his civil rights by using excessive force while booking him and by 

depriving him of medical care during his incarceration. Davis seeks special damages, 

compensatoty damages, punitive damages, a mandatoty injunction, and the fees and costs of 

litigation.· In an order issued February 8, 2016, the court dismissed several defendants because 

Davis failed to serve them, including the Multnomah County Sheriffs Office, the Oregon 

Depatiment of Conections, and all John Does. [Doc #40] The remaining defendants now move 

for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and ask the comi 

to dismiss all of Davis's claims. [Doc #35]. For the following reasons, defendants' motion· is 

GRANTED. 

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BACKGROUND 

On March 10, 2014, Gresham Police Officers atTested Davis for weapons charges and 

menacing, and transpmied him to the Multnomah County Detention Center ("MCDC"). [Doc 

#37-1] At the time of his atTest, Davis possessed a sho1i barreled rifle, glass pipes with 

methamphetamine residue, and ammunition. He was verbally hostile toward the atTesting 

officers and provided a false name. At MCDC, Davis reportedly became combative and had to 

be restrained by multiple deputies while he was searched. Officers then placed him in an 

isolation cell. [Doc #37-1at3] 

On March 11, 2014, a Community Health Nurse interviewed Davis in the isolation cell. 

Davis told her that he had no medical problems and that he was able to advocate for himself. 

[Doc #36-2 at 2] Davis did not report any medical issue or request medical services until May 

14, 2014, when he complained of pain on the right side of his body and a MCDC nurse treated 

him with ibuprofen. [Doc #36-2 at 2] The next day, Davis complained that the pain had 

worsened, repmiing "Severe Rt back, neck, shoulder & rib pain since 5/14/14. Do not bump!" 

Davis told the nurse he "[did] not have any idea what could be causing the discomfort." [Doc 

#36-2 at 3] On May 17, 2014, Davis first claimed that his right-sided pain started "a few days 

after coming to jail" when he was "taken to the ground by police" and landed on his right side. 

[Doc #36-2 at 5] 

On May 19, 2014, Davis told an examining doctor that when he first came to jail, officers 

had slammed him to the ground on his right side while handcuffed. He said the pain in his low 

back and neck had started three to four days before speaking with the doctor. [Doc #36-2 at 5] 

Davis also complained of difficulty with bowel and bladder control, but the doctor concluded 

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Case 3:14-cv-01815-JO Document 53 Filed 05/16/16 Page 2 of 9
that the objective findings were inconsistent with Davis's alleged symptoms. [Doc #36-2 at 6] 

The doctor treated Davis with Tylenol and Flexeril. [Doc #36-2 at 6] There is no evidence that 

Davis sought fu1iher medical treatment from MCDC. 

Davis sets fotih two claims under 42 U.S.C. § 1983. First, he alleges that Multnomah 

County correctional officers, including Deputy Rosa and Sergeant Shaut who he named as 

defendants, used excessive force against him during the booking process, and did so in 

accordance with the official policy, custom, and practice of Defendant Multnomah County. 

Second, Davis alleges that Defendant Multnomah County and unnamed MCDC medical 

personnel were deliberately indifferent to his medical needs resulting from the excessive force 

used against him. 

In their motion for summary judgment defendants contend: 

(1) The comi must dismiss Davis's claims under section 1983 because Davis failed to 

exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 

U.S.C. § 1997e(a); 

(2) The court must dismiss claims against defendants Sergeant Shaut and Deputy Rosa 

because Davis presented no factual basis from which to infer that they pmiicipated in the alleged 

use of force against him; 

(3) The comi must dismiss claims against Multnomah County because Davis does not 

allege that the County itself caused a constitutional violation, the County cannot be liable in an 

action under 42 U.S.C. § 1983 based on a theory of respondeat superior for the actions of its 

deputies, and the undisputed facts show that Multnomah County's policies, procedures, and 

practices did not violate Plaintiffs civil rights. 

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LEGAL STANDARD 

The district court should grant summary judgment if there are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56( c ). If the moving paiiy shows that there are no genuine issues of material fact, the nonmoving paiiy must go beyond the pleadings and designate facts showing an issue for trial. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A scintilla of evidence, or evidence that 

is merely colorable or not significantly probative, does not present a genuine issue of material 

fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989). 

Reasonable doubts as to the existence of a material factual issue are resolved against the moving 

party. T. W. Elec. Serv. v. Pacific Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1987). 

Inferences drawn from facts are viewed in the light most favorable to the non-moving party. 

T. W. Elec. Serv., 809 F.2d at 630-31. 

DISCUSSION 

I. Exhaustion of Remedies 

The PLRA requires a prisoner to exhaust available administrative remedies before 

commencing an action under section 1983: 

[ n ]o 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). 

Its tetms are unambiguous. A prisoner cannot bring a claim into couti before exhausting 

all available remedies. Jones v. Bock, 549 U.S. 199, 211 (2007); Porter v. Nussle, 534 U.S. 516, 

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524 (2002). Exhaustion is a mandatory prerequisite and not a discretionaiy matter for the comi. 

}vfcKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). 

Failure to exhaust under the PLRA is "an affitmative defense the defendant must plead 

and prove." Jones v. Bock, 549 U.S. at 204. The defendant has the burden to prove that there 

was an available administrative remedy which the prisoner failed to exhaust. Albino v. Baca, 

747 F.3d 1162, 1172 (9th Cir. 2014). Once the defendant has can-ied that burden, the prisoner 

must produce evidence demonstrating that "the local remedies were ineffective, unobtainable, 

unduly prolonged, inadequate, or obviously futile." Williams v. Paramo, 775 F.3d 1182, 1191 

(9th Cir. 2015) (internal citations and quotation marks omitted). The ultimate burden of proof 

rests with the defendant. Williams, 775 F.3d at 1191. 

At all times relevant to Davis's claims, Multnomah County had a grievance process in 

place allowing inmates at MCDC to address complaints about the conditions of their 

confinement. The process is explained in an Inmate Manual available to all inmates at MCDC. 

[Doc #37 at 3; Doc# 37-5 at 7-9). At all relevant times, Multnomah County Corrections Health 

had in place a similar Grievance Mechanism for Health Complaints, allowing inmates at MCDC 

to address complaints about health services. This process is also explained in the Inmate 

Manual. [Doc #36 at 3; Doc #36-1 at 12-16] Furthermore, the record shows that Davis 

understood and used the grievance process for other umelated complaints. [Doc #37-4] Davis's 

grievance log shows, however, that he filed no grievance regarding either the alleged use of 

force against him or the alleged failure to provide health services at any time during the 

incarceration at MCDC that began on March 10, 2014. [Doc #37-4] 

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Davis appears to argue that he could not exhaust administrative remedies because 

defendants withheld the identity of the John Doe defendants who allegedly used excessive force 

against him. [Doc #48 at 7] This argument cannot be sustained because defendants provided 

Davis with the discovety he requested and because the MCDC grievance procedure does not 

require an inmate to state the name of an alleged violator of his rights when submitting a 

grievance. [Doc #37-5 at 7-9] Generally, a grievance is sufficient if it contains enough 

information to alett the prison to the nature of the wrong for which redress is sought. Griffin v. 

Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Here there is no issue regarding the sufficiency of 

Davis's grievance because he simply failed to utilize the grievance procedure at all. 

Accordingly, Davis failed to satisfy the exhaustion requirement of the PLRA and his claims must 

be dismissed. 

II. Defendants Shaut and Rosa 

Davis named MCDC Sergeant Shaut and Deputy Rosa in the caption of his amended 

complaint. [Doc #1 at 1] He did not make specific allegations against them, however. [Doc #1] 

During his deposition, Davis conceded that defendant Shaut had done nothing physical during 

the alleged use of force against him on March 10, 2014. [Doc #38-2 at 7] He said that defendant 

Rosa did not do anything and conceded that he could not see her during the alleged use of force, 

but that she was present and assisted other officers who were "wrassling [him] down." [Doc 

#38-2 at 4-6] The MCDC roster of employees for the shift during which Davis was booked into 

MCDC and allegedly subjected to excessive use of force shows that neither defendant Shaut nor 

defendant Rosa worked during that shift. [Doc #37-3] Accordingly, Davis has failed to present 

any issue of material fact to be resolved at trial regarding the participation of defendants Shaut or 

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Rosa in the alleged use of force against him. The claims against Shaut and Rosa must be 

dismissed. 

III. Defendant Multnomah County 

Multnomah County cannot be liable in an action under 42 U.S.C. § 1983 based on the 

actions of deputies who used force against Davis or on the actions of personnel who allegedly 

failed to provide medical services. See J'vfonell v. Dep't of Soc. Serv., 436 U.S. 658, 694 (1978) 

(no respondeat superior liability under section 1983); Canton v. Harris, 489 U.S. 378, 388 

(1989) (same). 

Multnomah County can be liable for alleged excessive use of force in an action under 

section 1983 only if Davis shows that the county itself caused the constitutional violation 

through its policy or custom or widespread practice. Bd of Cnty. Comm 'rs of B1yan Cnty. v. 

Brown, 520 U.S. 397, 403-404 (1997). Undisputed evidence shows that the Multnomah County 

Corrections Division Operational Policy and Procedures Manual includes guidelines for using 

force, documenting its use, and reviewing all use of force incidents. [Doc #37-7] These 

guidelines prohibit the use of excessive force, and authorize physical force only when and to the 

extent it is necessmy to maintain order and security in the facility. [Doc #37-7 at 3-4] In 

addition, Multnomah County's policy and procedures require corrections personnel to participate 

in annual continuing in-service training including training in the appropriate use of force. [Doc 

#37-8] 

In light of this evidence of Multnomah County's policy, Davis must designate facts 

showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. at 322-23. Davis failed to present 

evidence of a policy statement, ordinance, regulation, decision, practice, or custom under which 

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Multnomah County authorized or encouraged or condoned the excessive use of force by 

corrections personnel. Davis had adequate time to obtain evidence from defendants regarding 

MCDC policies, customs, and procedures regarding the use of force as well as any historical 

record of use of force incidents at MCDC. Davis has simply failed to present a genuine issue of 

material fact regarding the role Multnomah County's policies, procedures, or customs played in 

the alleged excessive use of force against him in March 2014. 

Multnomah County can be liable for the alleged deliberate indifference to Davis's 

medical needs if Davis can prove that the County acted with deliberate indifference by 

promulgating or failing to promulgate ce1iain policies or procedures which in tum caused his 

irtjury. Gibson v. Cty of Washoe, 290 F.3d 1175, 1184 (9th Cir. 2002). To show deliberate 

indifference, Davis must show that the County disregarded a known or obvious consequence of 

its actions. Connick v. Thompson, 563 U.S. 51, 61-62 (2011). Thus, Davis must show that the 

county (1) had a policy that posed a substantial risk of serious harm; and (2) knew that its policy 

posed this risk. Gibson, 290 F.3d at 1188. 

Undisputed evidence shows that Multnomah County has a policy described in the 

Co11·ections Health Administrative Manual under which all inmates have the oppmiunity to 

request health care on a daily basis. The policy provides for treatment on a timely basis, in a 

clinical setting, by qualified medical professionals. [Doc #36-1] Undisputed evidence also 

shows that MCDC ColTections Health persoilllel acted in accordance with this policy by 

providing Davis with medical services when he requested them. [Doc #38-1] 

Davis has not come forward to designate facts showing a factual issue regarding 

Multnomah County's colTections health policies or procedures. Despite ample time to seek 

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discovery from defendants, Davis has simply failed to provide any evidence of deliberate 

indifference to his medical needs. 

CONCLUSION 

For all the foregoing reasons, Defendants' motion for summaty judgement[Doc #35] is 

GRANTED. Any remaining pending motions are DENIED as moot. 

IT IS SO ORDERED 

DATED this /~"day ofMay, 2016. 

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