UN=TEJ STATES DISTRICT COUR~ 

DISTRICT OF OREGON 

Elric Shelby, 

p:;_aintiff, 

v. 

Sheriff Sk~ah, et al., 

Defendar:.ts. 

Coffin, Magistrate Judge. 

1:15-cv-01457-TC 

FINDINGS AND 

RECOMMENDI\TION 

Plair.tiff filed a comDlaint U::.lder 42 U.S.C. § 1-983 

alleging violations of his constit0tional rights arising out 

of his incarceration in the Klamath County Jail. 

CefendanLS new move for surrunary judgment(#62) 

~he relevant facts are set forth in the Declarations of 

Jeanette Davison, Woody Lugo, Joni Stewart, Jason Klien, and 

Gerald Warren submitted in support of defendants' motion. 

Although plaintiff has submitted various doc~ments as exhibits 

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in support of his claims, the exhibits are not authenticated 

and contain inadmissible hearsay, and are insufficient to 

create a genuine issue as to any material fact before the 

court. 

As a preliminary matter, plaintiff has not alleged that 

defendants Skrah or Davidson personally participated in the 

conduct giving rise to his claims and he apparently seeks to 

hold them liable on a theory of respondeat superior. 

To establish a § 198 3 claim against an individual 

defendant, a plaintiff must establish personal participation 

by the defendant in the alleged constitutional deprivation. 

Ashcroft v. Igbal, 556 U.S. 662 (2009); Ivy v. Board of 

Regents, 673 F.2d 266 (9c:h Cir. 1982). 

It is well settled that respondeat superior is not a 

proper basis for liability under 42 U.S.C. § 1983. Monell v. 

New York City Dept. Of Social Services, 436 U.S. 658 (1978); 

Padway v. Patches, 665 F.2d 965 (9th Cir. 1982) Absent an 

allegation that the named state officials were personally 

involved in the alleged deprivation of constitutional rights, 

a complaint under 42 U.S.C. § 1983 does not state a claim. 

Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981); Johnson v. 

Puffy, 588 F.2d 740, 743 (9th Cir. 1978). A supervisor may 

be liable based on his or her personal involvement in the 

alleged deprivation, or if there is a sufficient causal 

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connection between the supervisor's alleged wrongful conduct 

and the alleged deprivation, Hansen v. Black, 885 F.2d 642, 

64 6 (9th Cir. 198 9) , but a "supervisor is only lia0le for 

constitutional violations of his subordinates if the 

s~pervisor participated in or directed the violations, or knew 

of the violations and failed to act to prevent them." Tavlor 

v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), citing Ybarra v. 

Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 

(9th Cir. 1984). 

Plaintiff has not alleged any facts that would support a 

respondeat superior claim against defendants Skr2h or 

Davidson. Therefore, they are entitled to judgment as a matter 

of law as to plaintiff's claims against them. 

In his first claim for relief, plaintiff alleges that his 

due process rights were violated when he was moved to 

administrative segregation after he yelled and threatened 

another inmate. 

Inmates have no liberty interest in being free from 

disciplinary segregation. Sandin v. Conner, 515 U.S. 472 

(1995). Summary judgment is proper where, as here, an inmate's 

placement in segregation is due to a legitimate security 

concern. Lopez v. Skagit County Jail, 447 Fed Appx. 807 (9th 

Cir. 2011). 

In this case, it is undisputed that plaintiff was moved 

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to segregation after he yelled at and threatened another 

inmate. Plaintiff acknowledges that his statements could be 

construed as threats. He was only in segregation for six days 

and was eventually given a hearing. IJnder these 

circumstances, defendants had a legitimate penological reason 

for placing plaintiff in segregation and h.=_s due process 

rights were not violated. Plaintiff's due precess claims fails 

as a matter of law. 

In his second claim for relief plaintiff alleges that his 

Eighth Amendment rights were violated when he was not given 

Tylenol or aspirin for a headache. 

In order to prevail on a 42 U.S.C. § 1983 claim that 

medical treatment has been denied or inadequately rendered, a 

prisoner must establish that there has been a "deliberate 

indifference to [his] serious medical needs." Estell v. 

Gamble, 429 U.S. 97, 104 (1976); Lopez v. Smith, 203 F.3d 

1122, 1131 (9t" Cir. 2000); see also, Clements v. Gomez, 298 

F.3d 898, 904 (9t" Cir. 2002). 

A determination of "deliberate indifference" requires an 

examination of two elements: 1.) The seriousness of the 

prisoner's medical needs, and 2.) The nature of the 

defendant's response. McGuckin v. Smith, 974 F.2d 1050, 1059-

60 (9th Cir. 19 92) (overruled on other grounds by WMX Techs. , 

Inc v. Miller, 104 F.3d 1133 (9th Cir. 1997). To find 

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deliberate indifference, "[a] defendant must purposefully 

ignore or fail to respond to a petitioner's pain or possible 

medical need." Id. at 1060. 

Whether a medical condition is serious is ordinarily a 

question left to physicians, Brownell v. Figel, 950 F.2d 1285, 

1291 (7'=h Cir. 1991) De.vis v. Jones, 936 F.2d 971, 992 (7°h 

Cir. 1991), but in general 2 medical condition is serious if 

it is life threatening or poses a risk of needless pain or 

lingering disability if not treated at once. Id., 936 F.2d at 

972; see also, Farmer v. Brenn2n, 511 U.S. 825, 847 (1994). 

Plaintiff's alleged medical need was a headac~e. While 

annoying and perhaps painful, it is not a serious medical need 

of constitutional proportion. There is a minimis level of 

imposition with which the Constitution is not concerned. 

Canell v. Multnomah County, 141 F, Supp 1046 (D. Or. 2001). 

In this case, plaintiff claims he suffers from migraines, 

but there is no medical evidence of migraines. In any event, 

the need for aspirin for a headache would be a difference of 

opinion between plaintiff and the medical providers and as 

such would not support a constitutional claim. Toguchi v. 

Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). To prevail on a 

claim involving choices between alternative courses of 

treatment, a prisoner must show that the chosen course of 

treatment 'was medically unacceptable under the 

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circumstances,' and was chosen 'in conscious disregard of an 

excessive risk to [the prisoner's] health.'" Id, (quoting 

Jackson v. Mcintosh, 90 F.3d 330, 332 (9th Cir. 1996). 

Plaintiff has made no such showing in this case and defendants 

are entitled to judgment as a matter of law on plaintiff's 

second claim for relief. 

Plaintiff's third claim alleges that he was charged for 

something that he did not receive. The evidence suggests that 

the charges plaintiff complains of in his third claim were 

imposed as a result of negligence or oversight. Negligence 

does not give rise to a claim under 42 U.S.C. § 1983 Daniels 

v. Williams, 474 U.S. 327 (1986). 

In any event the money withdrawn from plaintiff trust 

account was refunded to him, so plaintiff was not harmed or 

damaged by defendants' alleged negligence and his due process 

claim fails as a matter of law. 

Plaintiff alleges that defendants violated his Eighth 

Amendment rights by failing to protect him from Inmate Wise. 

Prison officials have a duty to protect prisoners from 

violence at the hands of other prisoners. Farmer v. Brennan, 

511 U.S. 825, 833 (1994). Ordinarily an isolated or random 

incident of prison violence does not give rise to a claim for 

failure to protect. The Ninth Circuit has traditionally 

required some sort of notice (constructive or otherwise) of 

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impending harm before liability could be imposed under the 

Eight Amendment for failure to protect an inmate. See, Redman 

v. County of San D-iego, 942 F.2d 1435 (9ch, Cir. 1991); Leer v. 

Murphv, 844 F.2d 628 (9:ei Cir. 1998); Berg v. Kincheloe, 794 

F. 2 d 4 5 7 ( 9 cei Cir . 19 8 6) . 

In Farmer, the S~preme Court held that the appropriate 

standard to impose liability for failing to protect an inmate 

from an attack by another inmate was the functional equivalent 

to criminal recklessness, and described the necessary mens rea 

as follows: 

[A] prison official cannot be found liable under the 

Eighth Amendment for denying an inmate human 

conditions of confinement unless the official knows 

of and disregards an excessive risk to inmate health 

and safety; the official must both be aware of the 

facts from which the inference could be drawn that 

a substantial risk of serious harm exists, and he 

must also draw the inference. * * * [A]n official's 

failure to alleviate a significant risk that he 

should have perceived but did not, while no cause 

for commendation, cannot under our cases be 

condemned as the infliction of punishment. 

Farmer, 511 U.S. at 837-38. 

A viable Eighth Amendment claim also requires proof of 

harm, Wilson v. Seiter, 501 U.S. 294,298 (1991), and the harm 

must be more than de minimis. Hudson v. McMillian, 503 U.S. 

1 , 8 - 1 0 ( 1 9 9 2 ) ; Ingraham v . Wright , 4 3 0 U . S . 6 51. 6 4 7 ( 1 9 7 5 ) 

["There is a de minimis level of imposition of punishmentO 

with which the Constitution is not concerned.]. 

Plaintiff has failed to controvert the evidence submitted 

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by defendants that plaintiff was suddenly attacked without 

warning and that defendants had no reason to suspect that such 

an attack might occur. 

In addition, plaintiff has failed to establish that the 

harm he suffered was sufficiently serious to constitute the 

basis for a Constitutional violation. It is undisputed that 

plaintiff was hit twice by inmate Wise before plaintiff got on 

top of Wise and that plaintiff suffered no injuries from the 

incident. 

There is no genuine issue of material fact that plaintiff 

never informed any defendant that he feared an attack from 

Inmate Wise and plaintiff has not controverted the 

considerable evidence presented by defendants that they did 

not suspect and did not have any reason to suspect that 

plaintiff was at any risk (much less a "substantial risk") of 

harm from Inmate Wise or otherwise. Therefore, defendants are 

entitled to judgment as a matter of law at to plaintiff claim 

that defendants violated his rights by failing to protect him 

from Inmate Wise. 

Plaintiff alleges that defendants retaliated against him 

for complaining about unauthorized chargers on his inmate 

account by requiring plaintiff to sign express authorization 

for his commissary orders. 

A properly pleaded complaint which alleges retaliation 

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for the exercise of a constitutional right states a cause of 

action under 42 C.S.C. § 1983. Mt. Healthy City Bd. Of Ed. V. 

Doyle, 429 U.S. 274 (1977); McDonald v. Hall, 610 F.2d 16 (l3t. 

Cir. 1979); Bruise v. Hudkins, 584 F.2d 223 (rn Cir. 1978). 

The claim must include an allegation that the plaintiff 

engaged in conduct that is constitutionally protected and that 

the conduc~ was a substantial or motivating factor for the 

defendant's acticn. Mt. Healy, id., at p. 287. 

"A prisoner suing state prison officials under section 

1983 for retaliation must allege that he was retaliated 

against for exercising his constitutional rights and that the 

retaliatory action does not advance legitimate penological 

goals, such as preserving institutional order and discipline." 

Barnett v. Centoni, 31 F.3d 813, 815-16 (9~" Cir. 1994). The 

plaintiff bears the burden of pleading and proving the absence 

of legitimate correctional goals for the conduct about which 

he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 

1995). Courts should "afford appropriate defere~ce and 

flexibility to prison officials in the evaluation of proffered 

penological reasons for conduct alleged to be retaliatory. 

Id., at 807 (quoting Sandin v. Conner, 515 U.S. 472, 482 

( 1995)) . 

The nature of a retaliation claim requires that it be 

"regarded with skepticism, lest federal courts embroil 

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themselves in every disciplinary act that occu~s in state 

penal institutions." Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 

1994) . 

In this case, plaintiff complained about alleged 

unauthorized deductions from his trust account. Therefcre 

requiring plaintiff to specifically authorize (ie. Sign 

for)his commissary orders served an obvious penological 

objective of protecting plaintiff account and limiting 

potential liability for unauthorized purchases. 

Moreover, defendants did not take any "adverse action" 

against plaintiff. Requiring an inmate to sign a form is 

hardly burdensome or punitive. Plaintiff was simply asked to 

authorize commissary order to make sure his account was 

protected. Plaintiff's retaliation fails as a factual matter 

and as a matter of law. 

Plaintiff's sixth claim for "collateral car.sequences" 

appears to more in the nature of a request for damages and 

does not state an independent cause of action or state a 

cognizable claim. Plaintiff does not oppose defendants' 

motion for summary judgment as to that claim. 

Qualified immunity shields government officials from 

liability for damages when they make decisions that, even if 

constitutionally deficient, reasonably misapprehend the law 

governing the circumstances they confronted. Brosseau v. 

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Case 1:15-cv-01457-TC Document 90 Filed 01/10/17 Page 10 of 13
Haugen, 543 l1 .S. 194, 202 (2004); Harlow v. Fitzgerald, 457 

U.S. 800 (1982). 

An official should be denied qualified immunity cnly when 

"[t]he contours of the right are sufficiently clear that a 

reasonable official would understand that what he is doing 

violates that right. Anderson v. Creighton, 483 U.S. 635, 640 

(1987). Qualified immunity is immunity from suit, not merely 

a defense to liability. Mitchell v. Forsvth, 472 U.S. 511, 

526 (1985). Like absolute immunity, qualified irmnuni ty is 

effectively lost if a case is erroneously permitted to go to 

trial. Id. Consequently, the Court has repeatedly stressed 

the importance of resolving immunity qusetions at the earliest 

possible stage in litigation. See, Hunter v. Byrant, 502 U.S. 

224, 227 (1991) (per curiam Saucier v. Katz, 533 U.S. 194, 201 

(2001) . 

The United States Supreme Court has held: 

"An official is entitled to summary judgment on the 

ground of qualified immunity where his or her 

conduct 'does not violate clearly established 

statutory or constitutional rights of which a 

reasonable person would have known.' Har low v. 

Fitzgerald, 457 U.S. 800, 818 (1982). Until 

recently courts considering an official claim of 

qualified immunity followed the two-step protocol 

established in Saucier v. Katz, 533 U.S. 194 

(2001), which required us first to determine 

whether the defendant violated a constitutional 

right and then to determine whether that right was 

clearly established. See, Pearson v. Callahan, 555 

U.S. _, 129 S.Ct. 808, 818 (2009) (overturning 

Saucier in part). In Pearson v. Callahan, the 

Supreme Court reversed this earlier rule and gave 

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courts discretion to grant qualified irnmuni ty on 

the basis of the "clearly established" prong alone, 

without deciding in the first instance whether any 

right had been violated. Id. Thus, we may grant 

qualified immunity if 'the facts that a plaintiff 

has alleged or shown [do not] make out a violation 

of a cor.sti tutional right' or if 'the right at 

issue was [not] clearly established at the time of 

the defendant's alleged conduct.' Id. At 816, 818 

(internal citations omitted)." 

James v. Rowlands, 606 F.3d 646 (9th Cir. 2010). 

As set forth above, defendants alleged cond~ct did not 

violate any of plaintiff's clearly established constitutional 

rights. Even if some minimal encroachment did arguably occur, 

defendants are qualifiedly immune from liability for damages 

because they reasonably misapprehended the law governing the 

circumstances they confronted and their actions were 

reasonable under the circumstances. Brosseau, 543 U.S. 194, 

202; Harlow, 457 U.S. 800. 

Based on all of the foregoing, I find that there are no 

genuine issues of material fact remaining in this case and 

that defendants are entitled to Judgment as a matter of law. 

Defendants' Motion for Summary Judgment (#62) should be 

allowed. The Clerk of the Court should be directed to enter 

a judgment dismissing this case. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

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court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific writ.ten 

objections with the court. Thereafter, the parties have 

fourteen ( 14) days within which to file a response to the 

objections. Fai~ure to timely file objectior.s to any factual 

determinations of the Magistrate Judge will be ccnsidered a 

waiver of a party's right to de nova consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Any appeal. £rom an order adopting this Findings and 

Recommendation or judgment dismissing this case wou.ld be 

£rivo1.ous and not taken in good £aith. Therefore, pl.ainti££'s 

in form.a pauperis status shou.ld be revoked. 

1- --:::rti~~~·~ DATED this JQ_ day of s-ecember, 2016. 

Judge 

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