IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

APPLETON PICKETT, JR., 

Plaintiff, 

v. 

COLETTE S. PETERS, Director of Oregon 

of Con-ections, et al., 

Defendants. 

MICHAEL H. SIMON, District Judge 

Case No. 6:16-cv-00003-SB 

ORDER OF DISMISSAL 

Plaintiff, an inmate at Snake River Con-ectional Institution (SRCI), brings this civil rights 

action pro se challenging the conditions of his confinement. For the reasons set forth below, this 

Court dismisses Plaintiffs Second Amended Complaint (ECF No. 29), and denies his Motion for 

Appointment of Counsel (ECF No. 32). 

STANDARDS 

This Court must dismiss an action initiated by a pnsoner seeking redress from a 

governmental entity or officer or employee, if the Comi determines that the action (i) is frivolous 

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or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief 

against a defendant who is immune from such relief. 28 U.S.C. §§ l 915(e)(2)(B) and l 915A(b). 

In order to state a claim, a plaintiff must allege facts which, when accepted as true, give rise 

to a plausible inference that the defendants violated plaintiffs constitutional rights. Ashcroftv. Iqbal, 

556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). "A claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; 

Moss v. US. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). "A pleading that offers labels and 

conclusions or a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 

U.S. at 678 (internal quotations omitted). Plaintiff is proceeding prose, and therefore this Court 

construes the pleadings liberally and affords Plaintiff the benefit of any doubt. Erickson v. Pardus, 

551 U.S. 89, 94 (2007). 

DISCUSSION 

This Court previously dismissed Plaintiffs original and amended Complaints. The Court 

granted Plaintiff leave to amend Claims II, III, and VIII only. Order of Dismissal (ECF No. 18) at 

14. In response to that Order, Plaintiff filed a Second Amended Complaint re-alleging those claims 

(using the same numerical designations), and a claim for the denial of adequate medical care (Claim 

IV). 

I. Claim II: "Continuing Chain Conspiracy" 

Claim II arises out of a knee injury that Plaintiff suffered in 2006, and then re-injured on May 

22, 2015 when he slipped and fell in a puddle of water. See Second Am. Comp!. at 20; Order of 

Dismissal (ECF No. 18) at 9-1 O; Order of Dismissal (ECF No. 11) at 7. Plaintiff alleges that the 

Oregon Department of Corrections (ODOC), Colette Peters, Jason Bell, Dr. Greg Lytle, and Dr. 

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Elliott Blakeslee1 violated his rights under the Americans with Disabilities Act ( 42 U.S.C. § 12101 

et seq.), theRehabilitationAct(29U.S.C. § 794 et seq.), and42 U.S.C. § 1983. Second Am. Comp!. 

at 19-20.2 

A. ADA/Rehabilitation Act 

This Court previously dismissed Plaintiffs claims under the ADA and the Rehabilitation Act, 

as follows: 

Plaintiffs allegation that he was denied adequate medical treatment for his 

knee does not state a claim for a violation of the ADA or the Rehabilitation Act 

because he does not allege that the denial of medical treatment was because of or 

motivated by a mental or physical handicap. See Simmons, 609 F.3d at 1022 ("ADA 

prohibits discrimination because of disability, not inadequate treatment for 

disability"); Pickettv. Williams, 498 Fed. Appx. 699, 701 (9th Cir. 2012) (affirming 

grant of summary judgment because Pickett failed to raise genuine dispute of fact as 

to whether he suffered disability-based discrimination); Walton v. US. Marshals 

Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (plaintiff must allege discrimination 

because of a disability to state claim under the Rehabilitation Act). 

Order of Dismissal (ECF No. 18) at 10-11 (addressing Plaintiffs Claim IV(B)). 

Plaintiffs Second Amended Complaint suffers from the same deficiencies. Plaintiff fails to 

allege any facts to support a claim under the ADA or Rehabilitation Act because he does not allege 

that Defendants denied him medical treatment because of a mental or physical handicap. See 

Simmons v. Navajo Cty., 609 F.3d 1011, 1022 (9th Cir. 2010) ("The ADA prohibits discrimination 

because of disability, not inadequate treatmentfor disability."); Montanezv. Velasco, No. 15-16704, 

1 Plaintiff lists "Dr. Elliott" as a Defendant at page thirteen of the Second Amended 

Complaint. In the text of Claim II, in contrast, Plaintiff references "Dr. Elliott Blakeslee." See 

Second Am. Comp. at 20. The Court assumes that this is the same individual. 

2 Plaintiff also includes allegations against Dr. Phillips and Dr. Steven Shelton. Neither 

doctor is included as a Defendant in the caption of the Second Amended Complaint or in the 

listing of Defendants contained therein. Plaintiffs reference to those doctors in his claims for 

relief does not suffice to include them as Defendants in this action. See Fed. R. Civ. P. 1 O(a) 

(requiring plaintiff to list all parties in the caption of the complaint). 

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Case 6:16-cv-00003-SB Document 36 Filed 03/13/17 Page 3 of 11
2016 WL 7423054, at *1 (9th Cir. Dec. 23, 2016) (noting that there is no significant difference in 

the analysis of rights and obligations created by the ADA and the Rehabilitation Act). 

B. § 1983 Claims 

This Court originally dismissed Plaintiffs § 1983 claim because it was "premised solely on 

legal conclusions, and fails to allege facts giving rise to a reasonable inference that Defendants 

violated Plaintiffs statutory or constitutional rights." Order of Dismissal (ECF No. 11) at 5. 

Additionally, this Court noted that the claim is "time-barred with respect to conduct more than two 

years prior to the filing of the Complaint." Id. at 6. 

In its second Order of Dismissal, the Court dismissed the claim on the basis that (1) the claim 

was not limited as far as practicable to a single set of circumstances; (2) conspiracy is not itself a 

constitutional violation and must be supported by an underlying constitutional violation; and (3) 

most of Plaintiffs allegations appear to be time barred. Order of Dismissal (ECF No. 18) at 6. 

Plaintiff was given leave to amend "to assert claims for the denial of adequate medical care ... 

which accrued on or after December 21, 2013." Id. at 7. 

Plaintiff re-alleges his § 1983 conspiracy claim in his Second Amended Complaint. For the 

reasons set forth below, this Comt dismisses the claim because Plaintiff has failed to allege facts to 

suppo1t a reasonable inference that Defendants were deliberately indifferent to his serious medical 

needs. 

1. ODOC Director Peters 

Plaintiff alleges that Director Peters "had personal knowledge of ongoing and post culpable 

convictional [sic] & civil violations of her subordinates, and [was] deliberately indifferen[t] for 

failUl'e to prevent a recurrence of such misconduct, thus failing in her responsibilities to provide for 

the health & safety of Mr. Pickett's cries for help." Second Am. Comp!. at 19. Plaintiff further 

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alleges that he wrote Peters on October 25, 2012 and May 26, 2015, and that "there was evidence 

from her (predecessor) Director- Max Williams, from the first lawsuit, filed, on June 15, 2009." Id 

Plaintiff alleges no facts to support a reasonable inference that Peters acted in conscious 

disregard to an excessive risk to Plaintiffs health or safety, or knew of the constitutional violations 

of her subordinates and failed to act to prevent them. See Crowley v. Bannister, 734 F.3d 967, 977 

(9th Cir. 2013) (supervisor may be liable ifhe is personally involved in the constitutional violation, 

or there is a sufficient causal connection between his wrongful conduct and the violation); Taylor 

v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (supervisor is liable for constitutional violations of his 

subordinates only ifhe participated in or directed the violations, or knew of the violations and failed 

to prevent them). On the contraiy, Plaintiffs allegations consist of legal conclusions and "a 

formulaic recitation of the elements of a cause of action." See Iqbal, 556 U.S. at 678. Accordingly, 

Claim II is dismissed as to Defendant Peters. 

2. Acting Superintendent Bell 

Plaintiff alleges that on May 22, 2015, he slipped and fell after stepping in a puddle of water 

caused by a leaky roof. Second Am. Comp!. at 20. With no supporting facts, Plaintiff alleges that 

Acting Superintendent Jason Bell was negligent and deliberately indifferent to Plaintiffs 

constitutional right to be "free from unjustified intrusions." Id 

This Court previously dismissed Plaintiffs negligence claim on the basis that "the negligent 

conduct of state officials does not give rise to a constitutional violation." Order of Dismissal (ECF 

No. 11) at 7 (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). Moreover, Plaintiff alleges no 

facts to suppott a reasonable inference that Bell was aware of the "leaky roof' and acted with 

deliberate indifference to Plaintiffs safety in failing to repair it. Accordingly, Plaintiff fails to state 

an Eighth Amendment claim. See Farmer, 511 U.S. at 834, 837 (Eighth Amendment claim for 

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failure to protect requires proof that defendant acted with deliberate indifference to excessive risk 

of harm). 

3. Drs. Lytle and Blakeslee 

In Plaintiffs First Amended Complaint, Plaintiff alleged that Drs. Lytle and Blakeslee were 

part of a "continuing chain conspiracy." With respect to their specific conduct, Plaintiff alleged: 

Dr. Lytle, of (TRCI) committed fraud concerning [Plaintiffs] knee injury under 

FRCP 9(b) by alleging on his diagnosis negative study, on date of February 21st, 

2006 .... On August 03rd, 2010-Dr. Elliott, of (SRCI), committed a conspiracy by 

affirming Dr. Lytle-diagnosis of negative study, but their [sic] were [sic] something 

suspicious, because Dr. Elliott authorized Plaintiff a Bottom Bunk Bed on the 

Bottom tier on November 9th, 2011, because it were [sic] medically necessary .... 

On Februaty 06th, 2014-Plaintiff discovered the fraud by Dr. Bristol x-ray diagnosis. 

Am. Comp!. (ECF No. 17) at 8-9. 

In his Second Amended Complaint, Plaintiff omits the dates of Lytle and Blakeslee's 

diagnoses and simply alleges that Lytle "committed fraud" in rendering his diagnosis, and Dr. 

Blakeslee "affirmed" the diagnosis. Second Am. Comp!. at 20. Plaintiff alleges that he discovered 

the fraud on February 6, 2014 (but omits the allegation that his discovery was premised on Dr. 

Bristol's 2014 diagnosis). Id. 

Plaintiff fails to state an Eighth Amendment claim for the denial of adequate medical 

treatment because he alleges facts which, at best, support a reasonable inference that he disagrees 

with the diagnoses of Lytle and Blakeslee. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 

2014) (difference of opinion between a physician and a prisoner does not amount to deliberate 

indifference). Plaintiffs conclusory allegation that Lytle "committed fraud," does not cure this 

deficiency. See Iqbal, 556 U.S. at 678 ("A pleading that offers labels and conclusions or a formulaic 

recitation of the elements of a cause of action will not do."). Even if the Court were to take into 

account Plaintiffs previous allegation that Dr. Bristol rendered a different diagnosis in 2014, a mere 

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Case 6:16-cv-00003-SB Document 36 Filed 03/13/17 Page 6 of 11
difference of medical opinion between doctors is insufficient to establish deliberate indifference. 

Toguchi v. Chung, 391F.3d1051, 1058 (9th Cir. 2004). For all of these reasons, Plaintiff has failed 

to state a § 1983 claim against Lytle or Blakeslee. 

4. ODOC 

Plaintiff alleges that ODOC is responsible for the health and safety of its prisoners and is 

liable for the conduct of its employees. Second Am. Comp!. at 20. It is well settled that a state 

agency is entitled to sovereign immunity from suit. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf 

& Eddy, Inc., 506 U.S. 139, 144 (1993). Accordingly, Plaintiffs Claim II is dismissed in its entirety 

for failure to state a claim. 

II. Claim III: "Continuing Retaliation in Discrimination Violations" 

In Claim III, Plaintiff alleges twenty different incidents which he links together as one claim 

for "continuing retaliation." Second Am. Comp!. at 21-24. This Court previously dismissed the claim 

on the basis that it violated Fed. R. Civ. P. 8(a) and lO(b), and because Plaintiff failed to allege facts 

giving rise to a reasonable inference that "(1) Plaintiff engaged in constitutionally protected conduct; 

(2) Defendants took adverse action against him; (3) there is a causal connection between the adverse 

action and the protected conduct; ( 4) the Defendants' acts would chill or silence a person of ordinary 

firmness; and (5) Defendants' retaliatory action did not advance legitimate goals of the institution." 

Order of Dismissal (ECF No. 18) at 8 (citing Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 

2012). Plaintiffs current claim suffers from the same deficiencies. Accordingly, this Court dismisses 

Claim III for failure to state a claim. 

III. Claim IV: "Deliberate Indifference to Serious Medical Need" 

Plaintiff alleges thathe was injured in a series of accidents on May 22, 2015; March 9, 2014; 

July 13, 201 O; January 21, 2006; and June 8, 2005. Second Am. Comp!. at 25-27. With regard to the 

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conduct of the Defendants, Plaintiff alleges that (1) on November 9, 2011, Dr. Blakeslee restricted 

Plaintiff to a bottom bunk on the lower tier "but concealed the fraud of his right knee;" (2) on 

September 12, 2010, Dr. Shelton was "a witness for the state [and] help[ed] conceal the fraud that 

Dr. Blakeslee and Dr. Lytle committed;" and (3) on January 21, 2006, Dr. Lytle "concealed" 

Plaintiffs trne diagnosis of his knee injury and broken toes. Id. at 26-27. 

The Court previously dismissed this claim, with prejudice, after g1vmg Plaintiff an 

opportunity to amend. Order of Dismissal (ECFNo. 18) at 9-10. This Court adheres to that decision. 

Additionally, the Court dismisses this claim for the reasons set forth above as to Claim II. 

IV. Claim VIII: "Intentionally Interferences with Access to the Courts" 

Plaintiff alleges that Defendants interfered with his access to the comis from 2010 to 2016, 

in violation of his rights under the ADA, the Rehabilitation Act, and the First and Fourteenth 

Amendments to the U.S. Constitution. Second Am. Comp!. at 28-34. Plaintiff alleges that 

Defendants (I) denied him extra time in the law libra1y; (2) denied him evening access to the libraiy; 

(3) made him work on a defective computer; (4) denied his request for thirty-six summonses and 

copies; and (5) made derogatory and threatening remarks. Id. at 29-34. Additionally, Plaintiff alleges 

that he was unable to print the last page of a Petition for Review to be filed in the Oregon Supreme 

Court, and a Motion for Relief from Habeas Judgment was deleted from his thumb drive. Id. at 29, 

31. Finally, Plaintiff alleges that (1) on July 7, 2016, he received a response to his grievance 

concerning incompatible cell mates; (2) on June 16, 2015, he requested a printout of his appointment 

with Health Services so he could schedule his libra1y time around his medical appointments; (3) on 

March 9, 2014, he fell in the kitchen; (4) on June 11, 2014, he was transported to the eye doctor for 

surgery; and (5) he was "threatened of being fire[d] for going to the legal library." Id. at 29-33. 

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This Court previously advised Plaintiff that in order to state a claim under the ADA and 

Rehabilitation Act, he must allege facts "giving rise to a reasonable inference that he has a disability, 

or is perceived as suffering from a disability, that substantially limits one or more major life 

activities, andthat he was discriminated against because of the disability." Order of Dismissal (ECF 

No. 18) at 12 (citing Simmons, 609 F.3d at 1022; Pickett, 498 F. App'x at 701; Walton, 492 F.3d at 

1005). Plaintiff has failed to do so. 

This Court also advised Plaintiff that in order to state a claim for the denial of access to the 

courts, "he must allege facts giving rise to a reasonable inference that he suffered an actual injmy 

to contemplated or existing litigation as a result of each Defendant's conduct." Id. at 12 (citing Lewis 

v. Casey, 518 U.S. 343, 351-53 (1996); Nevada Dep't of Corr. v. Green, 648 F.3d 1014, 1018 (9th 

Cir. 2011 )). Plaintiff has failed to do so. Although Plaintiff references the progress and rulings in his 

state and federal cases, he does not allege how the Defendants' alleged conduct caused him to suffer 

an actual injmy in those proceedings. 

Plaintiffs allegation that on June 2, 2014, his Motion for Relief from Habeas Judgment was 

deleted from his thumb drive (Second Am. Comp!. at 31) does not support a reasonable inference 

that he suffered actual injmy to court access because he filed the motion on July 3, 2014. See id. 

Plaintiff fails to allege how this sequence of events caused an actual injury. 

Plaintiffs allegation that he suffered actual injury with respect to a motion filed in Pickett 

v. Williams, Civ. No. 6:09-cv-00689-TC, affirmed, No. 11-35933, 498 F. App'x 699 (9th Cir. 2012), 

is incomprehensible: 

On April 17, 2013, Plaintiff tried to file a Motion to Set Aside Judgment in the 

United States District Court for the State of Oregon - case of Pickett v. Willaims, 

case no. # 11-35933. The results: "Denied." Id. Plaintiff alleges that prison officials 

denied access to the courts by providing accommodations in the prison legal library, 

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and plaintiff could not collateral attack, state prison defendants at the pleading & 

appeals stages, caused plaintiffs actions to be dismissed. 

Second Am. Comp!. at 32. 

Moreover, this Court takes judicial notice that Plaintiff filed his Motion to Set Aside the 

Judgment on April 22, 2013. Pickett, No. 6:09-cv-00689-TC, Motion to Set Aside Judgment (ECF 

No. 118). Hence, to the extent that Plaintiff is alleging that Defendants engaged in conduct on April 

17, 2013, that interfered with his ability to file his Motion for Relief for Judgment, there are no facts 

to support a reasonable inference that he suffered an actual injury to court access. 

Plaintiffs allegation that on April 3, 2010, "he could not get the accommodations for more 

time like he requested, and had to cut corners to get his filing done diligently" (Second Am. Comp!. 

at 32) pertains to conduct more than two years prior to the filing of Plaintiffs original Complaint and 

therefore is time barred. See Sain v. Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (Oregon's two-year 

limitations governs§ 1983 civil rights action). In any event, the right of access to the courts does not 

encompass the right "to litigate effectively once in court." Lewis, 518 U.S. at 354. 

Finally, to the extent Plaintiff is alleging an equal protection claim, he fails to state a claim 

because he alleges no facts to support a reasonable inference that Defendants intentionally, and 

without a rational basis, treated him differently from others who were similarly situated; or 

intentionally discriminated against him on the basis of his membership in a protected class. See N 

Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (setting forth elements of"class 

of one" equal protection claim); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (setting 

forth elements of equal protection claim based on membership in protected class). For all of these 

reasons, Plaintiff has failed to state a claim. 

Ill 

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V. Remaining Defendants 

The Court dismisses the following Defendants because Plaintiff includes no allegations 

against them: Lieutenant D. Sherbondy, Correctional Officer Duncan, Correctional Officer Bunn, 

SAIF Corporation, Mr. Richr, Mr. Eastwood, Mr. Romyer, Ms. Chictin, Ms. Joyce, K. Macoby, and 

Correctional Officer Lawson. 

CONCLUSION 

Based on the foregoing, this Court dismisses Plaintiffs Second Amended Complaint (ECF 

No. 29) for failure to state a claim. This Court concludes, based on a review of Plaintiffs Second 

Amended Complaint and because Plaintiff has been given two prior opp01tunities to amend, that the 

deficiencies in Plaintiffs Second Amended Complaint cannot be cured by amendment. Accordingly, 

the dismissal is with prejudice. This Court denies Plaintiffs renewed Motion for Appointment of 

Counsel (ECF No. 32). 

IT IS SO ORDERED. 

&-

DATED this !}_:._ day of March, 2017. 

11 - ORDER OF DISMISSAL 

United States 

~ District Judge 

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