1 - ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SIR GIORGIO SANFORD CLARDY, 

Plaintiff, No. 2:15-cv-01241-CL

v. 

ORDER 

JONES, STEINER, JOST, JUDY

GILMORE, JASON BELL, MILLER,

COLLETTE PETERS, WAGGONER, 

BUGHER, MOONEY, JOHN AND 

JANE DOES, all members of IPC 

Committee; 

 Defendants.

HERNÁNDEZ, District Judge:

Magistrate Judge Clarke issued a Findings and Recommendation [78] on December 19, 

2016, in which he recommends that this Court grant Defendants’ Motion for Summary Judgment 

[23], and deny Plaintiff’s Motion for Temporary Restraining Order [29], Motion for Leave to 

File Second Supplemental Declaration in Support of Temporary Restraining Order and 
2 - ORDER

Preliminary Injunction [75], and Motion for Stay [77]. The matter is now before the Court

pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b).

Plaintiff filed timely objections to the Magistrate Judge’s Findings & Recommendation.

Pl.’s Obj., ECF 32. Defendants did not respond. When any party objects to any portion of the 

Magistrate Judge's Findings & Recommendation, the district court must make a de novo

determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1); 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).

Upon review, the Court agrees with Judge Clarke’s recommendation to dismiss Plaintiff’s 

42 U.S.C. § 1983 claims for failure to exhaust administrative remedies, as required by the Prison 

Litigation Reform Act, 42 U.S.C. § 1997(e). Thus, the Court grants summary judgment to 

Defendants on these claims.

As to Plaintiff’s state law claims, the Court declines to exercise supplemental jurisdiction

and, thus, does not adopt Judge Clarke’s analysis of Plaintiff’s state law claims. See 28 U.S.C. § 

1367(c)(3) (providing that if the federal claim giving rise to the court's jurisdiction is dismissed 

before trial, supplemental state law claims may be dismissed as well). See also Schneider v. 

TRW, Inc., 938 F.2d 986, 993–994 (9th Cir. 1991) (explaining that the district court has discretion 

to dismiss supplemental claims).

Plaintiff filed 22 pages of single-spaced, handwritten objections. Plaintiff’s primary 

objection is to any consideration by Judge Clarke of Defendants’ affirmative defenses. 

According to Plaintiff, Defendants’ affirmative defenses are procedurally waived and admitted 

because Defendants failed to raise them in a timely manner. Plaintiff is incorrect.
3 - ORDER

On December 11, 2015, the Court issued to Defendants a Notice of Lawsuit and Request 

for Waiver of Service of Summons (“Notice”). See ECF 7. In the Notice, the Court explained 

that if Defendants complied with the Court’s request and returned the waiver to the Court, no 

summons would be served. Id. Instead, the action would proceed as if Defendants had been 

served on the date the waiver was filed. Id. Defendants were also informed that execution of the 

waiver form would not increase the time in which to file their answer; in other words, their 

answer still needed to comply with the time limits set forth in Federal Rule of Civil Procedure 

12(a)(1)(A) or (a)(3). Id. Defendants subsequently sought and received an extension of time in 

which to file their waiver of service form. See ECF 9, 12.

Defendants filed their waiver of service form on February 16, 2016. ECF 12, 17. Thus, 

Defendants’ answer was due by March 8, 2016, 21 days after February 16, 2016. See Fed. R. 

Civ. P. 12(a)(1)(A). On March 8, 2016, Defendants filed their answer, which included 

affirmative defenses. ECF 21. Therefore, Defendants’ answer and assertion of affirmative 

defenses was timely.

Plaintiff also objected to Judge Clarke’s determination that the Oregon Tort Claims Act

(“OTCA”) requires the Court to substitute the State of Oregon for individually named defendants 

and, thus, dismiss Plaintiff’s state law tort claims as barred by the Eleventh Amendment. 

Plaintiff argues that, because he alleges damages in excess of the OTCA’s statutory cap, his 

action may be maintained as one against individually named defendants.1Pl.’s Obj. 12, ECF 83.

 

1 O.R.S. 30.265(4) provides, in part, that:

If an action under ORS 30.260 to 30.300 alleges damages in an amount greater than the damages 

allowed under ORS 30.271, 30.272 or 30.273, the action may be brought and maintained against 

an officer, employee or agent of a public body, whether or not the public body is also named as a 

defendant.

The statutory cap for a single claimant bringing a cause of action between July 1, 2015 and July 1, 2016 is 

$2,048,300. See O.R.S. 30.271(4) and 
4 - ORDER

In addition, Plaintiff argues that, because he alleges that Defendants were not acting within the 

scope of their employment, the OTCA does not require the Court to substitute the State of 

Oregon for individual defendants. Id. at 13. Because the Court declines to exercise supplemental 

jurisdiction over Plaintiff’s state law claims, it is unnecessary for the Court to opine on the merit 

of Plaintiff’s arguments. 

The Court reviewed the remainder of Plaintiff’s objections and found them unavailing.2

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http://www.courts.oregon.gov/OJD/docs/courts/circuit/Table_of_Liability_Limits.pdf (last accessed, 

April 19, 2017). Plaintiff’s complaint alleges damages in excess of this amount. See Compl. 24, ECF 2.

2

For example, Plaintiff objects to Judge Clarke’s finding that there is no defendant “John Jones” properly 

before this Court because there is nothing in the record to establish that such defendant was served. See

F&R 7, ECF 78. Plaintiff is correct that Defendants’ Waiver of Service form lists “Jones” as one of the 

defendants who waives service. Decl. Opp. Summ. J. Ex. 7 (“Waiver of Service Form”), ECF 32-1 at 34. 

Therefore, the Court does not adopt that portion of the F&R. However, this does not change the Court’s 

overall conclusion.
5 - ORDER

CONCLUSION 

The Court ADOPTS IN PART Magistrate Judge Clarke’s Findings and Recommendation 

[78]. The Court grants Defendants’ Motion for Summary Judgment [23] as to Plaintiff’s §1983 

claims and declines to exercise supplemental jurisdiction over Plaintiff’s state law claims. The 

Court denies Plaintiff’s Motion for Temporary Restraining Order [29], Motion for Leave to File 

Second Supplemental Declaration in Support of Temporary Restraining Order and Preliminary 

Injunction [75], and Motion for Stay [77].

Any appeal from this Order would be frivolous and not taken in good faith. Therefore, 

Plaintiff’s in forma pauperis status is revoked.

IT IS SO ORDERED.

DATED this ________________ day of _________________________________ , 2017.

____________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

23 April

 Marco Hernandez