I 00 FIRES LAW PC 

Jose Cienfuegos 

Attorney at Law 

4500 Kruse Way, Suite 390 

Lake Oswego, OR 97035 

503-548-1593 

jose@ lOOfireslaw.com 

IN TH E UN ITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BILLY GOSTEVSKYH, 

Case No. 6: l 5-cv-02336-TC 

Plaintiff, 

v. 

JASON MEYERS AND 

MARION COUNTY, 

PLAINTIFF'S RESPONSE TO 

DEFENDANT'S OBJECTIONS 

TO MAGISTRATE JUDGE 

COFFIN'S FINDINGS AND 

RECOMMENDATIONS 

REGARDING SUMMARY 

Defendants JUDGMENT 

OBJECTION TO MAGISTRATE'S REPORT AND RECOMMENDATION 

GRANTING SUMMARY .JUDGMENT 

Plaintiff responds to the Defendant's Objections To Magistrate Judge Coffin's Findings 

and Recommendations Regarding Summary .Judgment in the above captioned matter wherein 

Judge Coffin denied Defendant's summary judgment motion. This Objection is fil ed pursuant to 

Fed. R. Civ. P 72(b) and 28 U.S.C.636(b)( I). 

De Novo Review 

As a preliminary matter, under Fed. R. Civ. P. 72(b), the district judge must consider any 

objections to a Magistrate 's Findings & Recommendations ("F&R'') de novo "The districtjudge 

must dete1mine de novo any part of the magistrate judge's disposition that has been properly 

I -PLAI NTIFF' S RESPONSE TO DEFENDANT ' S OBJECTION TO MAGISTRATE JUDGE OFFIN ' S 

FINDINGS AND RECOMMENDATIONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 1 of 11
objected to" . 28 U.S.C. 636(b)(l ). Any parts of the Magistrate's Findings which are not 

objected to may be either (I) approved if they are free of error, or (2) not reviewed at all . See 

generally, 28 U.S.C. 636(b)(l). Rule 72 requires any objections be specific and de novo review 

be given only for the parts of the disposition that have been "properly objected to" . 

Defendant has not objected to the finding of facts as laid out in the Findings and 

Recommendations by Judge Coffin, nor did the Defense indicate that there were any errors in 

those finding of facts. Defendant has made clear her succinct objections and enumerated them 

in her objections, as stated below. As such, the facts should be approved as stated by Judge 

Coffin. 

SUMMARY OF OBJECTIONS BY DEFENDANT 

A. Failing to sh(ft the burden to Plaint([[ to provide spec(ficfacts lo support his claims. 

In support of his response, Plaintiff has attached the entirety of the transcript from the 

oral arguments on Defendant's Motion for Summary Judgement as Exhibit 1, which was held 

on July 3, 2019, at the United States District Court fo r the District of Oregon, Eugene Division. 

The Defense claims that she had met her initial burden of proving that there was no genuine 

issue as to any material fact. The reality is that the Defense had failed to meet its initial burden 

as the moving party and failed to prove that the initial facts found by Magistrate Judge Coffin 

did NOT demonstrate that there were genuine issues of material facts that go directly to the 

Plaintiffs claims. 

B. Improperly relying on material that would not be admissible in evidence and.facts 

not subject to properjudicial notice as the basisfor their determination. The Defense concocts 

an issue fo r her motion by claiming that the Judge relied on facts from a story he told the parties 

during oral arguments. There is nothing from the story that the Magistrate told the parties in the 

courtroom during oral arguments that appears in the Finding and Recommendations suggesting 

2 - PLAINTIFF' S RESPONSE TO DEFENDAN T' S OBJECTION TO MAG I STRATE JUDGE OFFIN ' S 

FINDINGS AND RECOMM ENDATIONS REGARDI NG SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 2 of 11
that any part of that personal story was relied upon by Magistrate Judge Coffin when cone! uding 

that the Defendant's Motion fo r Summary Judgment should be denied. 

PROCEDRUAL POSTURE 

Plaintiff s law suit was fil ed on December 15, 2015. Depositions of several employees 

of Marion County were taken by the Plaintiff, including Sheriff Meyers, several guards whom 

transported, observed, and had direct contact with Plaintiff, persons who provide medical care 

for Plaintiff, including nurses and Dr. Vitells, the onl y physician at Marion County Jail. 

Discovery was asked for and received, including some policies. Marion County objected to 

and failed to provide all of what was requested by Plaintiff. Material generated from 

discovery, as well as declarations from Plaintiff, notes from Plaintiff, and the actual requests 

for medical care (Medical Request Forms, or MRFs) and ltmrnte Grievance Forms, medical 

notes from care providers, declarations from county counsel, Sheriff Meyer, Deputy Tad 

Larson, and some policies were presented to the bench by both parties during the Summary 

Judgment proceedings. It is from this material that Magistrate Judge Coffin based his finding 

of facts upon in his Findings and Reconu11endations, and, correctly fo rmed the basis for his 

decision to deny Defendant's Motion for Summary Judgment. 

ST ANDA RD OF REVIEW 

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment 

"shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and 

admissions on fil e, together with the affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to a judgment as a matter of law." 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248,(1986). By its very terms, this standard 

provides that the mere existence of some alleged factual dispute between the parti es will not 

3 - PLAI NTI FF' S RESPONSE TO DEFENDANT ' S OBJECT I ON TO MAGISTRATE JUDGE OFFIN' S 

FINDINGS AND RECOMMEN DATIONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 3 of 11
defeat an otherwise properly supported motion for summary judgment; the requirement is that 

there be no genuine issue of material fact. 

"As to materiality, the substantive law will identify whi ch facts are material. Only 

disputes over facts that might affect the outcome of the suit under the governing law will 

properly preclude the entry of summary judgment. Factual disputes that are irrelevant or 

unnecessary will not be counted.'. See generally lOA C. Wright, A. Miller, & M. Kane, Federal 

Practice and Procedure 2725, pp. 93-95 (1983) as quoted in Anderson at 248. The court must 

draw all reasonable inferences from the evidentiary record in favor of the non moving party. 

T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Asso., 809 F.2d 626, 630 (9111 Cir. 1987). 

A moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); 

Celotex Corp. v. Catrett, 477 U.S. 3 17, 322-24 (1986); US v. Diebold, Inc., 369 U.S. 654, 655 

(1962) (stating that on summary j udgment the inferences to be drawn from the underlying facts 

contai ned in the documents submitted must be viewed in the light most favorable to the party 

opposing the motion). What should be noted initially is that the Defendant moved for summary 

judgment supported by only some conclusory declarations and the complaint. The "facts" set 

forth in the initial motion did not reference any of the extensive depositions or the medical 

record, but instead provided a carefoll y managed and cherry picked version of the case. It is this 

very behavior that is the focus of Magistrate Judge Coffin's critical Findings and 

Recommendations. 

Plaintiff responded to the initial motion with contrary facts, fl eshed out the entire story 

supported by the depositions, medical records and other evidence admissible under rule 56. And 

while counsel for the Defense takes issue with the fact that Magistrate Judge Coffin gave 

Plaintiff additional time to supplement his response, it should be noted that if a party has 

4 -PLAI NT IFF' S RES PONSE TO DE FENDANT ' S OBJECTION TO MAGISTRATE J UDGE OFFIN ' S 

FINDINGS AND RECOMMENDATIONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 4 of 11
somehow fai led to comply with the fo rmalities of Rul e 56, a court may choose to be somewhat 

lenient in the exercise of its discreti on to deal with the deficiency. The non-moving party, who 

receives the benefit of all factua l interpretation and inferences, is allowed a greater discretion in 

its submissions that the movant. School District No. IJ Multnomah County Orv AcondSi Inc., 5 

F.3d 1255 (9111 Cir. 1993), citing to Schc11.fv. United States Attorney General 597 F.2d 1240, 

1243 (9111 Cir. l 979); Celotex Corp v. Catrett, 477 U.S. 3 17, 324 (l 986). Affidavits and 

declarations of the party opposing summary judgment ·'should be indulgently treated" . Do.ff'v. 

Burnswick Corp., 372 F.2d 801, 804 (9111 Cir. 1966). As to comments from the Defense on the 

sufficiency of Plaintiffs evidence, It should also be noted that it is improper at this stage of the 

proceeding for the court to make credibility findings or to rule on the admissibility of the 

evidence. If the evidence is presented by the Plaintiff shows that it is of the type which could be 

admitted at trial then it can be considered by the court to determine whether issues of fact exist. 

A declaration of a party is admissible and can be used to construe factua l differences. 

As to the Magistrates Findings and Recommendations, after a review of all facts 

and evidence presented by Plaintiff and the Defendant, and viewed in the light most favorable to 

the non moving party, the Plaintiff, the bench made a finding of facts, which conclusively set 

forth several issues that indicate not only questions of material facts, but those that go directly to 

Plaintiffs case. Exhibit 2, pg 3. Specifi cally, and importantly, Magistrate Judge Coffin fo und 

from the facts presented that the Plaintiff suffered from seri ous medical needs and that the 

county's actions and inactions, via its policy created deli berate indifference; " It is undisputed 

that the Plaintiff s transfer to the Transition Center and its effect on his medi cal care needs was 

pursuant to an official policy of the Jai l or Marion County." See Exhibit 2, pg 11. 

While Magistrate Judge Coffin found against the Plaintiff in several of his theories of 

misconduct and deliberate indifference by Marion County and its' employees, he did narrow the 

5 - PLAI NTIFF' S RESPONSE TO DEFENDANT ' S OBJECTION TO MAGISTRATE J UDGE OFFIN ' S 

FINDI NGS AND RECOMMENDATIONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 5 of 11
issue as to what he be! ieved set forth questions of material facts that would effect the outcome of 

the suit under governing law, that being deliberate indifference via Marion County's policies, 

that is the transfer of the Plaintiff to the Transition Center. Exhibit 2, pg 9. A reading of the 

Magistrate 's opinion on this issue shows a strong concerns and very clear findings of facts going 

directly to Plaintiffs theory of his case. 

It is important to unpack the evidence that Magistrate Judge Coffin was presented with 

prior to arguments on Summary Judgment that caused him this alarm and concern, and 

ultimately created an issue that should go to the factfinder. Plaintiffs injury occurred on 

December 2 1, 2013. An appointment was then scheduled to see the j ail doctor, Dr. Aaron 

Vitells. On December 30, after a nine day delay and several urgent request from the Plaintiff, 

Dr. Vitells was presented with a chronic injury to Plaintiffs eye that the doctor admitted was 

beyond his expertise and that his clinic lacked the proper tools to treat. As such, Dr. Vitel ls 

ordered that Plaintiff see a specialist, an ophthalmostat, "as soon as possible". Plaintiff was then 

transferred, only I 0 days into his 180 sentence, the day after Dr. Vite lls ordered Plaintiff see a 

specialist, to the Transition Center, where an inmate is subject to a seven day blackout period. 

While at the Transition Center Plaintiff could not go anywhere or contact anyone during the 

blackout period. After said blackout period he was then responsible for his own medical care, 

both in scheduling and financially. Plaintiff was then transferred back to the jail, 3 days later, for 

unknown reasons. During this time Plaintiff made several requests fo r medical care, filled out 

grievance fo rms, and even on the day of the transfer, plead with j ail staff for treatment to his 

deteriorating eye injury and ongoing Trigeminal Neuralga. Per jail policy, this transfer was done 

"Voluntarily". 

A reading of the transcript from oral arguments gives important insight into the issue at 

hand. Magistrate Judge Coffin was presented with a factual scenario from the evidence 

6 - PLAINT I FF' S RESPONSE TO DEFENDANT ' S OBJ ECTION TO MAGISTRATE JUDGE OFFI N' S 

FINDINGS AND RECOMMENDAT IONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 6 of 11
presented by Plaintiff that gave rise to several questions o f material facts that go directly to the 

question of Pla intiff's case of c la iming an injury due to deliberate indifference via an offi cial 

county poli cy. Why was he transferred a day after being seen by the doctor for what was 

considered a serious and chronic medi cal condition to a facility where this appointment would 

not be made e ither timely or fac ilitated by the j ail ? Why place an individual who is suffering an 

injmy such as this in a fac ility where he will be subject to a week long ·'Blackout Period"? Why, 

if this is supposedly a "voluntary" transfer by the Plaintiff, would he ··choose" this option if he 

has done nothing but repeatedly request immediate medical care for painful and deteriorating eye 

injury? Why was he transfetTed to the Transition Center only 10 days into his sentence of 180 

days? Why was he transferred when Dr. Vittels had ordered Plaintiff see a specialist at the 

expense of the County just a day before? These are materi al questions of fact that the Defendant 

did not address in her Motion for Summary Judgment. The answers to these questions were not 

forthcoming in discovery, nor were they fo rthcoming in oral arguments when posed to counsel 

for Defendant. In fact Magistrate Judge Coffin we nt so fa r as to say that the defense was being 

"evasive" in its answers. The answers to these questions are not ones that will readily come from 

Defendant, a nd are solely within the control of the Defendant. Only a factfinder will be able, 

after hearing from the Defendant herself, to determi ne if answers to these many questions, if 

given, are credible or not, and if based on the totality of the evidence, that Plaintiff has made its 

case. 

"The movant has the burden of showing that there is no genuine issue of fact, but the 

Plaintiff is not thereby relieved of his own burden of producing in turn evidence that would 

support a jury verdict. Rule 56(e) itself provides that a party opposing a properly supported 

motion for summary judgment may not rest upon mere all egation or deni als of his pleading, but 

must set fo rth specific facts showing that there is a genuine issue fo r tri al." Anderson at 256. 

7 - PLAINTIFF' S RESPONSE TO DE FENDANT ' S OBJECTION TO MAGISTRATE JUDGE OFFIN ' S 

FINDINGS AND RECOMMENDATIONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 7 of 11
Before the hearing started, and upon the pleadings and evidence submitted, Magistrate Judge 

Coffin was presented with enough evidence submitted by the Plaintiff that shows clearly that 

there are several material issues at play that support a jury verdict fo r the plaintiff. These facts 

presented are not simply allegations, but rather indicate deliberate indifference via Marion 

County's policy and procedures. Defendant, the moving party, was given ample opportunities to 

attempt to meet its burden of showing that there were no material issues of fact in this case, and 

they had lost before they started. Simply put, the Defense never met its burden initially to prove 

that there were NO genuine issues of fact. 

The "Red Flag" scenario that is discussed in the transcript and that is so "Troubling" to 

the bench in this case suggest that there was an improper reason for the transition of the Plaintiff 

to the Transition Center, based on policy and procedure of the County, and that the treatment of 

the Plaintiff via this policy constituted deliberate indifference of his seri ous medical needs. The 

discussion between counsel for Defendant and the bench demonstrates two things: 1) That the 

infonnation that would answer these questions is entirely within the possession and control of the 

Defendants; 2) That as such, the only proper way to answer these questions is to proceed to trial 

to let a jury determine these issues. 

Prisoners are entitled to medical care during their custodial time at the same level as 

that which is provided in the community. Denial of access to standard of care medical 

treatment or delay in treatment constitutes de liberate indifference to the prisoner's protected 

constitutional rights. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (intentionally denying or 

delaying access to medical care); Page v. Norvell, 186 F. Supp. 2d 11 34, (D. Or. 2000)(delay of 

treatment causing some harm); Delker v. Maass, 843 F. Supp. 1390, 1400-01 (D. Or. 1994) and 

Wood v. Su1m, 865 F. 2d 982, (9th Cir. l 988)(faili ng to respond to pain and other problems); 

McGuickin v. Smith, 974 F.2d 1050, (91h Cir. l 982)(defendants repeatedly fa iled to treat inmates 

8 - PLAINTI FF' S RESPONSE TO DEFEN DANT' S OBJECT I ON TO MAGISTRATE J UDGE OFFIN' S 

FI NDI NGS AND RECOMMEN DATIONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 8 of 11
properly or single egregious event strongly suggests deliberate indifference). Even where 

medical care is eventually provided to the prisoner, the prison authorities may be held to have 

violated the deli berate indifference standard if there is evidence of delay of medical care. 

McElligott v. Foley, 182 F. 3d 1248, (1 1

111 Cir. 1999); Caldwell v. District of Columbia, 20 1 F. 

Supp. 2d 27, (D.DC 200 l)(deliberate indifference fo und where treatment delayed for substantial 

periods of time despite repeated grievances and delay caused condition to worsen). 

"We repeat, however, that the plaintiff, to survive the defendant's motion, need only 

present evidence from which a j ury might return a verdict in his favor. If he does so, there is a 

genuine issue of fact that requires a trial." Anderson at 257. "More important for present 

purposes, summary judgment will not lie if the dispute about a material fact is "genuine," that is, 

ifthe evidence is such that a reasonable jury could return a verdict fo r the nonmoving party. In 

First National Bank of Arizona v. Cities Service Co., 39 1 U.S. 253, ( 1968)." Anderson at 248. 

The burden on the movant is to provide sufficient infonnation to demonstrate they are 

entitled to a judgment as a matter of law. Only disputes over facts that might affect the outcome 

of the suit under the governing law will properly preclude the entry or summary judgment. 

Factual disputes that are irrelevant or unnecessary will not be counted. See generally 1 OA C. 

Wright, A. Miller, & M. Kane, Federal Practice and Procedure§ 2725, pp. 93-95, (1983). 

Summary judgment will not lie if the dispute about a materi al fact is "genuine," that is, if the 

evidence is such that a reasonable jury could return a verdict for the nonmoving party. 

Anderson at 248. 

Magistrate Judge Coffin properly made finding of facts that alone create facts that affect 

the outcome of the suit under the governing law regarding Plaintiff's case. These facts are not 

iITelevant or unnecessary and are in fact evidence that a reasonable jury could return a verdict 

for the Plaintiff. As the Magistrate states in his Findings and Recommendations, '· ... justice is 

9 - PLAINTIFF' S RESPONSE TO DEFENDANT ' S OBJECTION TO MAG I STRATE JUDGE OFFI N' S 

FI NDINGS AND RECOMMEN DATIONS REGARDING SUMMARY JU DGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 9 of 11
not served by concluding this case at summary judgment when evidence has not been forth 

coming" . Exhibit 2, pg 13. 

As to Defendant's second objection. A reading of the Findings and Recommendations 

attached as Exhibit 2 makes it clear that Magistrate Judge Coffin did not rely on any part of, or 

any facts from, his personal story related to the parties in oral arguments. 

In fact, reading the transcript, Exhibit 1. it is clear to any reader that the bench was 

simply responding to one of Counsel for Defendant's answers to the bench's questi ons about 

the facts of the case. Starting on pg 23 of the transcript the discussion between counsel fo r the 

County and the bench turns on Mr. Glaccum's interpretation of the words " as soon as possible" 

from Dr. Vitells records. Mr. Glaccum stated that this wording did not imply an " emergent 

situation" . The bench, in responding, stated that he disagreed with counsel, and then gave the 

story about his son, and his son's eye inj ury, and what it may mean when a doctor says that 

someone needs to be seen soon. What is clear at this point is that the purpose of the story is to 

indicate that specialists are hard to schedule, and that when doctors say that someone needs to 

be seen soon by a specialist, it does not mean that it is not an emergency. It just happens that 

the story about scheduling a specialist involved an injury to his son's eye. 

There is nothing in the record of the Findings and Recommendations that hint to, state, 

or even suggest that Magistrate Judge Coffin used any of the facts from his personal story in his 

analysis of Findings and Recommendations. r n fact, on pg 7 of the Findings and 

Recommendations Exhibit 2. the Magistrate clearly states that '· ... the Plaintiffs sworn 

statements themselves are adequate to establish the existence of a seri ous medical need," and 

" .. . the County's own medical records establish the se riousness of his medical conditions." 

Clearly this is an attempt to fabricate an issue where there is none. There is no 

indication that any of the facts from the story were relied upon by the Magistrate at all in his 

IO -PLAI NTIFF' S RESPONSE TO DEFENDANT' S OBJECTION TO MAGI STRATE JUDGE OFFI N' S 

FINDINGS AND RECOMMEN DATIONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 10 of 11
conclusions about this moti on. What is clear is that the Defendant has been caught with very 

bad facts that they cannot escape and try to elude by claiming impermissible burden shifting. 

The Defense never met it burden, eluded answers, was evasive and not fo rthcoming. 

For the reasons set forth in this response and based on Magistrates Judge Coffin's 

Finding and Recommendations, we respectfully ask this Court to follow the recommendation 

that Defendant's Motion for Summary Judgment be denied. 

Dated this 271h day of August, 201 9. 

Respectfully submitted, 

ls/Jose Cienfuegos 

Jose Cienfuegos OSB 0 10280 

Attorney fo r Plaintiff 

II -PLAI NTIFF' S RESPONSE TO DEFENDANT ' S OBJECTION TO MAGISTRATE JUDGE OFFIN ' S 

FINDINGS AND RECOMMENDATIONS REGARDING SUMMARY JUDGMENT 

Case 6:15-cv-02336-TC Document 89 Filed 08/27/19 Page 11 of 11