IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TRACY JOSEPH JOHNSON, 3:15-CV-00125-PK

Plaintiff, ORDER

v. 

 

TILLAMOOK COUNTY, BOBBY LUNDY,

TRACI HILLSTROM, VICTOR

GUTIERREZ, BRAD ROHDE, JENNY

MOBERG, RACHEL BRANTNER,

BRETT DYE, and GLEN WATSON,

 Defendants.

BROWN, Judge.

Magistrate Judge Paul Papak issued Findings and

Recommendation (#62) on April 18, 2016, in which he recommends

the Court grant in part and deny in part Defendants' Motion (#47)

for Summary Judgment. Defendants filed timely Objections (#67)

to the Findings and Recommendation. The matter is now before

this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of

Civil Procedure 72(b).

When any party objects to any portion of the Magistrate

Judge's Findings and Recommendation, the district court must make

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a de novo determination of that portion of the Magistrate Judge's

report. 28 U.S.C. § 636(b)(1). See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328

F.3d 1114, 1121 (9th Cir. 2003)(en banc). 

DISCUSSION

Plaintiff alleges four claims against Tillamook County and

the eight individual Defendants1: (1) an Eighth Amendment claim

against Lundy, Hillstrom, Gutierrez, Rohde, Brantner, Dye, and

Watson (Deputies) and Moberg in which Plaintiff alleges these 

Defendants were deliberately indifferent to his medical needs;

(2) an Eighth Amendment Monell claim against the County in which

Plaintiff alleges the County’s “custom, policy, and practice” 

violated his Eighth Amendment rights; (3) an Americans with

Disabilities Act (ADA) claim against the County and the Deputies

in which Plaintiff alleges these Defendants did not reasonably

accommodate him; and (4) a state negligence claim against the

County in which Plaintiff alleges the County failed to ensure his

health and safety. All Defendants moved for summary judgment as

to each claim asserted against them.

The Magistrate Judge recommends the Court grant Defendants’

1 Seven of the eight individual Defendants (Lundy,

Hillstrom, Gutierrez, Rohde, Brantner, Dye, and Watson) are

Deputy Sheriffs of Tillamook County, and Defendant Moberg is a

nurse-employee of Tillamook County. 

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Motion for Summary Judgment as to Defendant Moberg only on

Plaintiff’s First Claim; grant Defendants’ Motion as to all

Defendants on Plaintiff’s request for lost wages; deny

Defendants’ Motion as to Plaintiff’s Fourth Claim on the ground

that Oregon permits Plaintiff to proceed with his Fourth Claim

against the County even though it is based on the same facts as

his § 1983 claims; and deny Defendants’ Motion in all other

respects on the grounds that there are genuine disputes of

material fact that preclude summary judgment in favor of the

County and the Deputies.

I. Liability of Individual Defendants

Defendants Victor Gutierrez, Rachel Brantner, and Glen

Watson object to the Magistrate Judge’s findings as to

Plaintiff’s claims against them. These Defendants argue there is

not any evidence to support a conclusion that they personally

participated in the alleged violations that are the basis of 

Plaintiff’s First and Third Claims. 

A court may grant summary judgment to individual defendants

on a § 1983 claim if the plaintiff “failed to raise a triable

dispute as to whether these defendants personally participated in

the alleged constitutional violations.” Hinkley v. Vail, 616 F.

App’x 274, 275 (9th Cir. 2015). The plaintiff, however, must

establish “integral participation and individual liability” in a

case brought pursuant to § 1983. Jones v. Williams, 297 F.3d

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930, 939 (9th Cir. 2002). Mere presence “or membership in a

group, without personal involvement in and a causal connection to

the unlawful act” does not create liability under § 1983. Id. 

In other words, an officer cannot be held liable based solely on

membership in a group or team that engages in unconstitutional

conduct unless the officer had “integral participation” in the

alleged constitutional violation. Chuman v. Wright, 76 F.3d 292,

294 (9th Cir. 1996). 

The Magistrate Judge found the following pertinent facts: 

Plaintiff experienced an allergic reaction while incarcerated by

the County as a result of exposure to flourescent lighting;

Defendant Jenny Moberg, the medical nurse on duty, advised “all

deputies” that were working on February 28, 2014, (the date

Plaintiff was incarcerated) that Plaintiff needed to be released

due to his medical issue; Plaintiff testified every time a deputy

walked by his cell or offered him food, he would summon them for

help regarding his condition and they would ignore him; and the

Officer Activity Log showed that all of the Deputy Defendants

other than Brad Rohde offered Plaintiff food and walked by his

cell to perform visual checks. 

Thus, the Magistrate Judge found a reasonable trier of fact

could find the Deputies “acted with deliberate indifference by

ignoring [Plaintiff]’s direct requests for medical help,” and,

therefore, the Magistrate Judge recommends the Court deny the

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portion of Defendants’ Motion for Summary Judgment based on this

premise. The Court adopts the Magistrate Judge’s finding and,

therefore, concludes a reasonable juror could find that

Gutierrez, Brantner, and Watson personally participated in the

alleged constitutional violations and were not merely present. 

II. Plaintiff’s ADA Claim

Defendants also argue in their Objection that Plaintiff’s

Third Claim in his First Amended Complaint regarding violation of

the ADA may only be brought against the individual Defendants in

their official capacity. This issue does not appear to have been

raised in Defendants’ Motion for Summary Judgment and was not

specifically addressed by the Magistrate Judge in his Findings

and Recommendation.

The Court notes, however, in his First Amended Complaint 

Plaintiff brings the Third Claim against Tillamook County and the

Deputies “in their official capacities.” First Am. Compl. at 

¶ 22. The Court, therefore, concludes the Defendants’ Objection

is moot.

III. Plaintiff’s Negligence Claim

Defendants also assert in their Objections that Plaintiff

can bring his Fourth Claim against the County only pursuant to

Oregon Revised Statute § 30.265(2). In his Response Plaintiff

acknowledges he brings this claim only against the County and not

the individual Defendants. First Am. Compl. at ¶ 28. The Court,

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therefore, concludes Defendants’ Objection as to this issue is

moot.

In summary, this Court has carefully considered Defendants’

Objections and concludes they do not provide a basis to modify

the Findings and Recommendation. The Court also has reviewed the

pertinent portions of the record de novo and does not find any

error in the Magistrate Judge's Findings and Recommendation. 

CONCLUSION

The Court ADOPTS Magistrate Judge Papak’s Findings and

Recommendation (#62) and GRANTS in part and DENIES in part 

Defendants’ Motion (#47) for Summary Judgment as follows:

1. GRANTS Defendants’ Motion as to Plaintiff’s First Claim 

as to Defendant Moberg only, 

2. GRANTS Defendants’ Motion as to Plaintiff’s request for

lost wages, and 

3. DENIES the remainder of Defendants’ Motion.

IT IS SO ORDERED.

DATED this 20th day of July, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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