IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

EDWIN BURL MAYS, JR. and BILLY 

VANCE MAYS, as Personal Representative 

of the Estate of Edwin Burl Mays III, 

Plaintiffs, 

v. 

DESCHUTES COUNTY, by and through 

the Deschutes County Sheriffs Office, a 

Political Subdivision of the State of Oregon; 

LARRY BLANTON, Deschutes County 

Sheriff; BRIAN BISHOP, Sergeant; JESSE 

HURLEY, Deputy; AMANDA PARKS, 

Deputy; DAVID CHAMBERS, Deputy; 

RICK BENITEZ, Deputy; RANDY 

THOMPSON, Deputy; JOSEPH TOMAN, 

DEPUTY; and MARSHALL LOONEY, 

Deputy, 

Defendants. 

AIKEN, Judge: 

No. 6:15-cv-00898-AA 

ORDER 

In December 2014, decedent Edwin Burl Mays III was arrested in Deschutes County on a 

heroin possession charge. Decedent died while in the custody of the Deschutes County Sheriffs 

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Office later that night. In this lawsuit, plaintiff Billy Vance Mays, as personal representative of 

decedent's estate, alleges staff of the Deschutes County Sheriffs Office denied decedent adequate 

and timely medical care, in violation of his rights under the Eighth and Fourteenth Amendments to 

the United States Constitution. Plaintiff' also asserts state-law claims of negligence and wrongful 

death. Plaintiff now moves to amend the complaint to add claims, clarify claims, and add facts and 

admissions established in discovery. Pis.' Mot. File First Am. Comp!. at 2 ( doc.48). For the reasons 

set forth below, plaintiff's motion is granted in part and denied in part.2 

Defendants ask this Court to deny plaintiff's motion for leave to amend in its entirety on the 

ground that plaintiff failed to meet the conferral requirements of Local Rule 7-1. Having reviewed 

the declarations accompanying plaintiff's motions, I am satisfied that plaintiff's counsel complied 

with the local rnle 's conferral and certification requirements. 

Defendants also oppose plaintiff's addition of a claim for injunctive relief on the ground of 

futility. 3 Federal Rule of Civil Procedure 15(a) directs courts to "freely give leave [to amend] when 

justice so requires." Id.; see also Sonoma C11ty. Ass '11 of Retired Emps. v. Sonoma Cnty., 708 F.3d 

1 At the time the motions addressed in this order were filed, there were two plaintiffs in 

this lawsuit: Vance Mays and Eddie Mays, Jr., decedent's father. As explained in footnote 2 

below, Mays, Jr. is being dismissed as a plaintiff. For the sake of simplicity, this order uses the 

singular "plaintiff' even though the motions were filed on behalf of two plaintiffs. 

2 Plaintiff also moves to dismiss with prejudice all claims against defendants Rick 

Benitez, Randy Thompson, Joseph Toman, and Marshall Looney and to dismiss with prejudice 

the only claim asserted by plaintiff Eddie Mays, Jr. Id.; Docs. 46 & 47. Defendants filed no 

response to plaintiff's motions to dismiss, and those motions are accordingly granted. The 

proposed amended complaint contains the changes proposed in the motions to dismiss. 

3 Defendants also mention undue delay in their response, but offer no argument on this 

point. Arguments made in passing and inadequately briefed are waived. Halicki Films, LLC v. 

Sa11de1'so11 Sales & Mktg., 547 F.3d 1213, 1230 (9th Cir. 2008). 

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Case 6:15-cv-00898-AA Document 57 Filed 11/16/16 Page 2 of 4
1109, 1117 (9th Cir. 2013) ("In general, a court should liberally allow a party to amend its 

pleading."). The Ninth Circuit has cautioned that a coutt may 

decline to grant leave to amend only ifthere is strong evidence of"undue delay, bad 

faith or dilat01y motive on the part of the movant, repeated failure to cure 

deficiencies by amendments previously allowed, undue prejudice to the opposing 

party by virtue of allowance of the amendment, [or] futility of amendment, etc." 

Id. (alteration in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 

Defendants argue that plaintiff, who brings claims in this lawsuit only in his capacity of 

personal representative of decedent's estate, lacks standing to seek prospective relief. Defs.' Resp. 

in Opp. to Pis.' Mot. File First Arn. Comp!. at 3 (doc. 51 ). Plaintiff concedes "the ability to get 

preliminary injunctive relief for a dead person is problematic," but contends the new material in 

proposed amended complaint should remain because the complaint requests injunctive and 

declaratory relief. Pis.' Reply at 7 (doc. 54). 

Under the heading "SEVENTH CLAIM FOR RELIEF: Injunctive Relief," the proposed 

amended complaint asserts that: 

Plaintiff is entitled to injunctive and declaratoty relief where necessary to correct and 

prevent Constitutional deprivations. If the changes requested by Plaintiff are not 

ordered there is a substantial risk of immediate harm to other inmates and those held 

in the Deschutes County jail particularly where the cunent sheriff has indicated his 

supp01t and endorsement of the conduct of the defendants on the night of Eddie Mays 

[sic] death. 

Pis.' Mot. File First Am. Comp!. Ex. 1 i1i1110-12. The proposed amended complaint goes on to ask 

the Court to order defendants to "make ... changes to jail policy and procedures," including changes 

to officer training and to policies for holding arrestees who are suspected of drng use. Id. if 112. 

Despite the passing reference to declaratoty relief, paragraphs 110 through 112 of the 

proposed amended complaint plainly seek only injunctive relief. These paragraphs do not contain 

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any reqnest for this Court to make a declaration regarding defendants' violation of plaintiff's rights; 

they ask for policy changes expressly aimed at protecting the rights of individuals who are not parties 

to this lawsuit. Because decedent is no longe1: alive, changes to jail policy and training cannot 

redress his injuries. This Court therefore lacks subject matter jurisdiction to consider any claim for 

injunctive relief, and amendment to add such a claim would be futile. The motion to amend the 

complaint is denied with respect to the claim for injunctive relief. 

Plaintiff's motion for leave to amend the complaint (doc. 48) is DENIED with respect to the 

claim for injunctive relief (paragraphs 110 through 112 of the proposed amended complaint) and is 

othe1wise GRANTED. Plaintiff's motions to dismiss (docs. 46 & 47) are GRANTED. The parties' 

request for oral argument is DENIED as unnecessaiy. 

IT IS SO ORDERED. 

Dated this~ day of November 2016. 

~~ Ann Aiken 

United States District Judge 

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