IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

JOHN RAINS, 

Plaintiff, 

v. 

DR. EDWARDS, DR. BUCKLER, 

CINDY WADSWORTH, A. ERIKSSON, 

DR.ADAMS, REBECCA Y AZY, and 

DAN BERGER, 

Defendants. 

CLARKE, Magistrate Judge, 

Case No. 3:15-CV-00915-CL 

REPORT& 

RECOMMENDATION 

On May 29, 2015 Plaintiff John Rains filed his Complaint (#1), bringing this action 

against the defendants for violations of his Eighth and Fourteenth Amendment rights and for 

medical malpractice under Oregon law based on the medical treatment he received during his 

incarceration at McLaren Youth Facility. His incarceration at the facility is ongoing, and he is 

scheduled to be released in 20 15. The case comes before the Court on a Motion to Dismiss ( # 1 7) 

by defendant Dr. Buckler, and a Partial Motion to Dismiss (#18) by all other defendants. For the 

reasons below, each motion should be GRANTED in part and DENIED in part. 

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STANDARD 

Pursuant to Rule 12(b )( 1) of the Federal Rules of Civil Procedure (FRCP), the Court 

must dismiss a claim if the plaintiff fails to plead or establish subject-matter jurisdiction. Plaintiff 

has the burden to plead and establish that the court has subject-matter jurisdiction. Ass 'n of Am. 

Med. Coli. v. United States, 217 F.3d 770 (9th Cir. 2000). When deciding a motion to dismiss 

for lack of subject-matter jurisdiction under Rule 12(b)(l), the Court may consider affidavits or 

other evidence regarding the question of jurisdiction. Autery v. United States, 424 F.3d 944, 956 

(9th Cir. 2005). 

Pursuant to Rule 12(b)(6), a motion to dismiss will be granted where the plaintiff fails to 

state a claim upon which relief may be granted. In order to state a claim for relief, a pleading 

must contain "a short and plain statement of the claim showing that the pleader is entitled to 

relief." Fed. R. Civ. P. 8(a)(2). "A motion to dismiss under Federal Rule of Civil Procedure 

12(b )( 6) for failure to state a claim upon which relief can be granted 'tests the legal sufficiency of 

a claim."' Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Navarro 

v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). 

Dismissal under Rule 12(b )( 6) is proper "if there is a 'lack of a cognizable legal theory or 

the absence of sufficient facts alleged under a cognizable legal theory."' !d. (quoting Balistreri v. 

Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). To survive a motion to dismiss for 

failure to state a claim pursuant to Rule 12(b)(6) "a complaint must contain sufficient factual 

matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Shroyer 

v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating a 

motion to dismiss, the court must accept the allegations of material fact as true and construe 

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those allegations in the light most favorable to the non-moving party. Odom v. Microsoft Corp., 

486 F.3d 541, 545 (9th Cir. 2007) (internal citations omitted). 

DISCUSSION 

Plaintiff John Rains, an inmate at the McLaren Youth Facility, brings this action under 42 

U.S.C. § 1983 for violations ofthe Eighth and Fourteenth Amendments of the United States 

Constitution. He also asserts a claim for medical malpractice under Oregon law. Plaintiff 

contends that he was prescribed various medications for anxiety and depression while he was 

incarcerated. Plaintiff claims that the medications were not necessary and that, due to the 

conduct of the defendants, the medications in his body ultimately reached toxic levels and caused 

him to develop Systematic Inflammatory Syndrome, also known as Stevens-Johnson Syndrome, 

or DRESS (drug rash with eosinophilia and systemic symptoms). 

Defendant Robert Buckler, M.D. (Dr. Buckler) moves this Court for an Order dismissing 

Plaintiffs Complaint pursuant to Rule 12(b)(6) on the basis that Plaintiff John Rains has failed to 

state a claim against Dr. Buckler upon which relief can be granted as to his section 1983 claim 

under the Eight Amendment. Dr. Buckler further moves to dismiss plaintiffs state law medical 

malpractice claim on the basis that he is entitled to Eleventh Amendment immunity. 

Defendants Cindy Wadsworth, A. Eriksson, Rebecca Yazy, Dr. Adams, and Dan Berger 

("the remaining OYA defendants") raise essentially the same arguments in their motion 

regarding Plaintiffs medical malpractice claim and their own Eleventh Amendment immunity. 

Additionally, the remaining OY A defendants purport to join in the entirety of the motion by Dr. 

Buckler. Therefore, the Court will first address the issues holistically before making a 

recommendation on each specific motion. 

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I. Plaintiff's medical malpractice claim should be dismissed because all 

defendants are entitled to Eleventh Amendment immunity from tort claims 

brought in federal court. 

The Eleventh Amendment bars1 citizens from bringing suit in federal court against a state 

unless that immunity is waived by the state or abrogated by Congress. Seminole Tribe of Florida 

v. Florida, 517 U.S. 44, 54 (1996). The Oregon Torts Claim Act (OTCA) provides a limited 

waiver of the State of Oregon's sovereign immunity for the torts of its officers, employees and 

agents acting within the scope oftheir employment or duties. Or. Rev. Stat. § 30.265(1). It does 

not waive the State of Oregon's Eleventh Amendment immunity to suit in federal court. 

Pennhurst State Sch. & Hasp. v. Halderman, 465 U.S. 89,99 n. 9 (1984) (a state's general waiver 

of sovereign immunity in its own courts is not a waiver of Eleventh Amendment immunity to 

suit in federal court); Estate of Pond v. Oregon, 322 F.Supp.2d 1161, 1165 (D.Or. 2004) ("The 

[OTCA] is a waiver of sovereign immunity but does not waive Eleventh Amendment immunity. 

Thus, suits by private parties against the state must be brought in state court."); McVay v. Becker, 

No. 3:10-CV-1484-AC, 2012 WL 1890374, *9 (D. Or. Mar. 21, 2012) (same). Nor has the 

State of Oregon unequivocally consented to federal jurisdiction for claims brought under ORS § 

30.320. Webber v. First Student, Inc., 928 F. Supp. 2d 1244, 1269 (D.Or. 2013), appeal 

dismissed (July 26, 2013) citing Olson v. Or. Univ. Sys. ex ref. Pernsteiner, No. CV 09-167-

MO, 2009 WL 1270293, *6 (D.Or. May 6, 2009). 

The Plaintiff correctly asserts that ORS 30.265 has been amended to allow state actors to 

be sued individually for amounts over the OTCA damage caps. See Or. Rev. Stat. § 30.265(4). 

1

Because a state can waive its sovereign immunity, the Ninth Circuit treats Eleventh Amendment 

immunity as an affirmative defense rather than a jurisdictional bar. See Miles v. Cal., 320 F .3d 986, 988 

(9th Cir.2003). Accordingly, Eleventh Amendment immunity "must be proved by the party that asserts it 

and would benefit from its acceptance." Sornson v. Oregon Comm'n on Children, 887 F. Supp. 2d 1111, 

1115 (D. Or. 20 12). In this case, however, there is no dispute that the defendants are being sued for their 

actions as employees of the State of Oregon. Complaint~~ 2-8. 

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However, nothing in ORS 30.265 or in the OTCA more generally allows state actors to be sued 

in federal court. Without an explicit waiver of Eleventh Amendment immunity, those claims, 

even when asserted against an individual, must be brought in state court. Therefore, both 

motions should be granted as to Plaintiffs claims for medical malpractice under Oregon law, and 

those claims should be dismissed without prejudice to filing in state court. 

II. Plaintiff states a claim for relief under § 1983 for violation of his Eighth 

Amendment rights. 

"Traditionally, the requirements for relief under[§] 1983 have been articulated as: (1) a 

violation of rights protected by the Constitution or created by federal statute, (2) proximately 

caused (3) by conduct of a 'person' (4) acting under color of state law." Crumpton v. Gates, 947 

F.2d 1418, 1420 (9th Cir. 1991). Or, more simply, courts have required plaintiffs to "plead that 

(1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the 

Constitution or federal statutes." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). 

The Eighth Amendment prohibits the imposition of cruel and unusual punishments and 

"embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency." 

Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation and internal quotations omitted). "The 

Constitution 'does not mandate comfortable prisons."' Farmer v. Brennan, 511 U.S. 825, 832 

(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)); see also Hallett v. Morgan, 296 

F.3d 732, 745 (9th Cir. 2002). The Eighth Amendment is also not a mandate for broad prison 

reform or excessive federal judicial involvement. See Hallett, 296 F .3d at 7 45. The Ninth 

Circuit has held that in order to prevail on a claim under the Eighth Amendment, a plaintiff must 

demonstrate either that prison officials acted with deliberate indifference or that their conduct 

was so reckless as to be tantamount to a desire to inflict harm. Starr v. Baca, 652 F.3d 1202, 

1205 (9th Cir. 2011 ). Indeed, "deliberate indifference to a prisoner's serious illness or injury 

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states a cause of action under§ 1983." Estelle, 429 U.S. at 105; see also Jett v. Penner, 439 F.3d 

1091, 1096 (9th Cir. 2006); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 

a. Plaintiff states a claim against Dr. Buckler. 

The allegations in Plaintiffs Complaint (#1) regarding Dr. Buckler span nearly eight 

months oftreatment by the psychiatrist, beginning in October and November 2013 (~15). 

Plaintiff alleges that Dr. Buckler prescribed him medication (~15), that he examined Plaintiff and 

noted his condition and his ongoing dosages in January, February, and March, 2014 (~18), and 

that that he suspected a "possible adverse reaction to medication" in mid-March, 2014 (~19). 

Plaintiff alleges that Dr. Buckler noted a spreading rash, raised lesions on his arms, and swollen 

lymph nodes, causing him to discontinue one medication and order lab work on March 22 (~24). 

Plaintiff alleges that by March 24 he was experiencing worsening symptoms, including fever, 

aches, and chills, but, that same day, Dr. Buckler along with another doctor merely ordered 

forced fluid diet and rest (~~25-27). Plaintiff alleges that Dr. Buckler, along with the other 

doctors, did not take appropriate chart notes on his vitals, urine, bowel movements or 

temperature, and Plaintiff claims that his medication flow chart was either inadequate or not 

given to the staff in the Emergency Room on March 26 (~~28, 29). Plaintiff asserts the 

egregiousness of this failure by alleging that his mother called the Medical Director of the 

facility, who opined that Plaintiffs condition could be a medication allergy just the day before, 

March 25 (~30). 

Plaintiff alleges that his condition severely deteriorated over the next several days: the 

rash spread to his legs and feet, his skin turned purple and swollen, causing the staff to nickname 

him "Barney," and he experienced continued fever, diarrhea, and vomiting (~~33-34). Plaintiff 

alleges that, despite his obvious worsening condition, including lab work that indicated elevated 

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liver function tests, the infirmary staff at McLaren did not monitor his vitals; they did not take 

his temperature, nor did they track his urine discharge or level of dehydration (~34). Plaintiff 

alleges that his parents visited him in the infirmary on March 30, noted his worsened condition, 

and attempted to convince the infirmary staff to transport him to the hospital again (~34), but the 

doctors either coul.d not be reached, or believed the matter was not urgent (~~35-36). 

When Plaintiff was finally transported to the hospital for the s,econd time, he was 

diagnosed with Stevens-Johnson syndrome, which is a life-threatening reaction to medication 

(~39). He was immediately admitted to the Intensive Care Unit and intubated, and he remained 

on a respirator for several days (~40). He was experiencing severe liver and kidney failure, and 

his parents were told their son might die (~40). Plaintiff alleges that he was hospitalized for 

fourteen days before he returned to McLaren. Later he had two more flare ups resulting in one 

more hospitalization for treatment (~42). Over the course of his illness, he lost over thirty 

pounds (~40). The full extent of the damage to Plaintiff's kidneys and other organs is still 

unknown (~~67-69). 

Based on the factual allegations above, Plaintiff claims that defendant Dr. Buckler acted 

with deliberate indifference in failing to provide adequate medical care to his serious medical 

needs. Plaintiff has alleged sufficient facts to state a plausible claim for relief that Dr. Buckler 

prescribed medication and then failed to properly and adequately monitor Plaintiff's reaction to 

that medication. Plaintiff alleges that, even after noting that Plaintiff was having a possible 

adverse reaction and ordering lab work, Dr. Buckler continued to delay the actions necessary to 

treat and reverse the reaction. Defendant Dr. Buckler's assertion that the allegations do not rise 

to the level of a constitutional violation are not convincing at this stage of litigation. Plaintiff has 

alleged deliberate indifference and has supported that claim with sufficient factual material. The 

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substantive merit of his claim will not be decided until the summary judgment stage, or at trial. 

For these reasons, Dr. Buckler's motion to dismiss Plaintiffs Eighth Amendment claims against 

him should be denied. 

b. Plaintiff states a claim for relief against the remaining OY A defendants. 

The remaining OYA defendants do not make a separate motion to dismiss Plaintiffs 

claims under the Eighth Amendment, but merely join in Dr. Buckler's motion. Therefore, for the 

same reasons discussed above, to the extent that the remaining defendants move to dismiss the 

Eighth Amendment claims, their motion should be denied. 

III. Plaintiff does not state a claim for relief under § 1983 for violation of his 

Fourteenth Amendment rights. 

According to the headings used in his Complaint, Plaintiffs first and second claims for 

relief are alleged under "the 8th and 14th Amendments of the United States Constitution." 

However, the factual allegations appear to relate only to potential Eighth Amendment claims. 

Plaintiff has not responded to Dr. Buckler's motion to dismiss these claims to the extent they are 

alleged under the Fourteenth Amendment, and the Court finds that the Plaintiff has conceded the 

issue. Therefore, both motions should be granted as to any claims brought under the Fourteenth 

Amendment. 

RECOMMENDATION 

Defendant Dr. Buckler's motion to dismiss (#17) should be granted in part and denied in 

part. Plaintiffs claim for medical malpractice should be dismissed without prejudice to filing 

such claim in state court. Plaintiffs claims for violations of his Fourteenth Amendment rights, if 

any, should be dismissed. The only claims that should remain against Dr. Buckler are those 

brought pursuant to § 1983 for violations of the Plaintiffs Eighth Amendment rights. 

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The remaining defendants' partial motion to dismiss ( # 18) should be granted in part and 

denied in part. Plaintiffs claims for medical malpractice should be dismissed without prejudice 

to filing such claims in state court. Plaintiffs claims for violations of his Fourteenth Amendment 

rights, if any, should be dismissed. The only claims that should remain against the OY A 

defendants are those brought pursuant to § 1983 for violations of the Plaintiffs Eighth 

Amendment rights. 

This Report and Recommendation will be referred to a district judge. Objections, if any, 

are due no later than fourteen (14) days after the date this recommendation is filed. If objections 

are filed, any response is due within fourteen (14) days after the date the objections are filed. 

See FED. R. CIV. P. 72, 6. 

Parties are advised that the failure to file objections within the specified time may waive 

the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

MARK D. CLARKE 

United States Magistrate Judge 

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