UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

BRIAN S. NICKEL, 

Plaintiff, 

v. 

MULTNOMAH COUNTY, et al., 

Defendants. 

Mcshane, District Judge. 

3:14-cv-01744-MC 

ORDER 

Plaintiff, an inmate in the custody of the Oregon 

Department of Corrections filed a complaint under 42 u.s.c. § 

1983 alleging claims arising out of injuries he sustained 

during an assault by another inmate on February 1, 2012 while 

he was in the custody of the Multnomah County Department 

Corrections. 

The Oregon Defendants 1 now move for summary judgment 

(#43). The Oregon defendants were not named in plaintiff's 

original complaint pro se complaint . They were added as 

1Jeff Premo, Steven Shelton, Ole Hansen, and Carrie Coffee. 

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Case 3:14-cv-01744-MC Document 66 Filed 09/11/16 Page 1 of 8
defendants in a First Amended Complaint (#31) filed by pro 

bono counsel. 

Plaintiff's First Amended Complaint (#31) alleges claims 

for deliberate indifference to a serious medical need (First 

Claim for Relief), cruel and unusual punishment (Second Claim 

for Relief), and an Oregon Common law claim (Third Claim for 

Relief) . 

Plaintiff conceded that the moving defendants are 

entitled to summary judgment as to the claims alleged in his 

First Claim for Relief. Response in Opposition (#53) p. 2. 

Plaintiff's Second Claim for relief contends that 

defendants violated his rights under the Eighth Amendment by 

subjecting him to "prolonged confinement in administrative 

segregation." Response in Opposition #53) p. 4. 

The Eighth Amendment proscribes punishments which 

involve the "unnecessary and wanton infliction of pain," are 

grossly disproportionate to the severity of the crime for 

which the inmate was imprisoned, or are totally without 

penological justification. Rhodes v. Chapman, 452 U.S. 337, 

347 (1981); Gregg v. Georgia, 428 U.S. 153, 173 (1976). 

In order to establish liability under the Eighth 

Amendment, a plaintiff must prove two distinct components: 1.) 

that the plaintiff actually suffered an extreme deprivation or 

was placed at a substantial risk of suffering a significant 

2 - ORDER 

[ 

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injury; and 2) that the defendants acted with a sufficiently 

culpable state of mind (deliberate indifference). Farmer v. 

Brennan, 511 U.S. 825 (1994); Wilson v. Sieter, 501 U.S. 294, 

298 (1991); LeMaire v. Mass, 12 F.3d 1444, 1451 (9th Cir. 

1993); May v. Bladwin, 109 F.3d 557, 565 (9th Cir. 1997). 

The Eighth Amendment does not apply to every deprivation 

or even every unnecessary deprivation, suffered by a prisoner, 

but only that narrow class of deprivation "serious injury 

inflicted by prison officials acting with a culpable state of 

mind." Hudson v. McMillian, 503 U.S. 1 (1992). 

The Supreme Court decided decades ago that segregation is 

not, without more, cruel and unusual punishment. Hewitt v. 

Helms, 459 U.S. 460, 468 (1983); Bell v. Wolfish, 441 U.S. 

520, 546-67 (1979); see also Toussaint v. McCarthy, 801 F.2d 

1080 (9~ Cir. 1986). 

Moreover, pursuant to the Prison Litigation Reform Act 

("PLRA"), 42 U.S.C. § 1997e(e), "no federal civil action may 

be brought by a prisoner confined in a jail, prison, or other 

correctional facility, for mental or emotional injury while in 

custody without a prior showing of physical injury." In the 

Ninth Circuit, the PLRA "requires a prior showing of physical 

injury that need not be significant but must be more than de 

minimis. 11 Oliver v. Keller, 298 F3d 623, 627 (9th Cir. 2002). 

Plaintiff's Second Claim for relief alleges that his 

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Case 3:14-cv-01744-MC Document 66 Filed 09/11/16 Page 3 of 8
placement in segregation caused "tremendous mental anguish, 

suffering and pain," First Amended Complaint (#31) , 143, but 

does not allege that plaintiff suffered any physical injury as 

a result of his confinement in Administrative Segregation, and 

therefore fails to state a claim. 

Plaintiff (counseled) Response in Opposition does not 

address the merits of defendants arguments but rather seeks 

further discovery. Plaintiff argues that he is "entitled to 

discovery information regarding why he was placed in 

Administrative Segregation and whether his placement there was 

retaliation for his repeated demands that he receive adequate 

medical care for his serious medical condition. Mr. Nickle 

believes that additional discovery will reveal that his 

placement in solitary confinement caused more than de minimis 

harm and also may have been motivated by a desire to iate 

against plaintiff for his continued efforts to obtain proper 

medical care." Response in Opposition (#53) p. 4. 

As a preliminary matter, plaintiff has not presented an 

affidavit to continue the summary judgment proceeding as 

required by Fed. R. Civ. P. 56(d). Generally, "[A] district 

court should continue a summary judgment motion upon a good 

faith showing by affidavit that the continuance is needed to 

obtain facts essential to preclude summary judgment." 

California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). 

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Case 3:14-cv-01744-MC Document 66 Filed 09/11/16 Page 4 of 8
Moreover, defendants' possible mo ti vat ion for plaintiff's 

assignment to administrative segregation is irrelevant to 

whether the conditions therein violated the Eighth Amendment. 

Plaintiff's speculation that his placement in Administrative 

Segregation "caused more than de minimis harm" is also 

immaterial without some allegation of physical injury. 

Plaintiff has not identified any "essential facts" that 

he could obtain through further discovery that would preclude 

summary judgment in this case. 

Plaintiff's Third Claim for Relief purports to be based 

on a "Violation of Oregon Common Law Declaratory Judgment 

Against ODOC." First Amended Complaint (#31) p. 20. However, 

the precise nature of the claim is not clear. Plaintiff 

alleges tha the drafted a statement on or about April 13, 2015 

that "releases ODOC and all its correctional facilities for 

any future claims, known or unknown, arising from any future 

injury to plaintiff (and that) Plaintiff drafted the under 

duress." (Sic) First Amended Complaint (#31) p. 20. 

Defendants argue that plaintiff's Third Claim is barred 

by the Eleventh Amendment. 

The Supreme Court has repeatedly stated that a state or 

its officials or agencies may not be sued by private 

individuals in federal court unless the state has 

unequivocally consented to that action, or Congress has 

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Case 3:14-cv-01744-MC Document 66 Filed 09/11/16 Page 5 of 8
unequivocally expressed its intent under the Fourteenth 

Amendment to waive the immunity of the States. Board of 

Trustees of University of Alabama v. Garrett, 531 U.S. 356 

(2001); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 

(1996); see also, Quern v. Jordan, 440 U.S. 332 (1979); 

Edleman v. Jordan, 415 U.S. 651, 673 (1984); Pennhurst State 

School and Hospital v. Halderman, 465 U.S. 89 (1984). The 

Eleventh Amendment otherwise bars any such action regardless 

of the nature of the relief sought. Cory v. White, 457 U.S. 

85 (1982); Brooks v. Sulpher Springs Valley Elec. Co-Op, 951 

F. 2d 1050, 1053 (9th Cir. 1991) . 

Individual defendants share in the Eleventh Amendment 

immunity afforded states and state agencies where the 

individuals are sued in their official capacities because such 

suits "are, in essence, actions against the government entity 

of which the officer is an agent." Mitchell v Los Angeles 

Community College Dist., 861 F.2d 198, 201-02 (9th Cir. 1999). 

Under the "arm of the state" doctrine, a state entity and its 

officers in their official capacities share the state's 

sovereign immunity because "'the state is the real party in 

interest and is entitled to invoke its sovereign immunity from 

suit even though individual officials [or state entities] are 

nominal defendants.'" Durning v. Citibank, N .A., 950 F. 2d 

1419, 1423 (9th Cir. 1991) (quoting Ford Mtor Co. v. Dep't of 

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Case 3:14-cv-01744-MC Document 66 Filed 09/11/16 Page 6 of 8
Treasury, 323 U.S. 459, 464 (1945)). A suit against a state 

officer in his official capacity is effectively considered a 

suit against the official's office, and therefore, it "is no 

different than a suit against the State itself." Will v. 

Michigan Dep't of State Police, 419 U.S. 58, 71 (1989). 

Plaintiff responds "to the extent that plaintiff's Third 

Claim for Relief fails to state a claim, this court should 

allow him leave to amend to allege a claim for declaratory 

relief under federal law and to name individual defendants." 

Response (#53) p. 4. Plaintiff "expects that discovery will 

reveal the name of the corrections officers who required (him) 

to draft a release waiving future claims as a condition of his 

release from solitary confinement." Id. 

Amending to allege his Third Claim under federal law 

would do nothing to cure plaintiff's Eleventh Amendment 

immunity problem. Naming individual defendants (assuming they 

could be identified) would also be unavailing because all 

individuals named in the First Amended Complaint are named in 

their official capacities. Amending to allege that the 

presently unknown individuals acted in their individual 

capacities when they allegedly coerced plaintiff to sign the 

release might arguably solve the jurisdictional issue. 

However the court finds that plaintiff's Third Claim 

fails to satisfy the basic federal jurisdictional "case or 

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Case 3:14-cv-01744-MC Document 66 Filed 09/11/16 Page 7 of 8
controversy" standing requirement. 

Article II, Sec. 2, Clause 1 fo the United States 

Constitution prohibits federal courts from issuing advisory 

opinions or hearing cases that are unripe - meaning that the 

controversy has not arisen. In order to satisfy this 

requirement, plaintiff must establish that he has suffered a 

"concrete and particularized injury" and "actual or imminent, 

not conjectural or hypothetical. 11 Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-561 (1992) i see also, 

Hollingsworth v. Perry, 133 S.Ct. 786, 579 U.S. (2012) i 

Spokeo v. Robins, 578 U.S. (2016). 

I find that plaintiff might seek damages from ODOC for 

"any future injury to plaintiff" is too speculative to 

constitute concrete and particularized injury for purposes of 

the case or controversy jurisdictional requirement. 

Based on the foregoing, I find that there are no genuine 

issues of material fact remaining as to plaintiff's claims 

against the Oregon Defendants and that they are entitled to 

judgment as a matter of law. 

The Oregon Defendants' Motion for Summary Judgment (#43) 

is allowed. 

DATED this ll_ day of September, 2016. 

\,.. . l __ _ 

Michael Mcshane 

United States District Judge 

8 - ORDER 

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