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McGary v. Cunningham

United States District Court, W.D. Washington

November 24, 2014

DARNELL O. MCGARY, Plaintiff,
v.
KELLY CUNNINGHAM, DON GAUNTZ, HOLLY CORYELL, ED YOUNG, BRUCE DUTHIE, JEFF CUTSHAW, REGINALD WOODS, MARK LINDQUIST., Defendants

NOTED FOR: DECEMBER 12, 2014.

Darnell O McGary, Plaintiff, Pro se, STEILACOOM, WA.

For Kelly Cunningham, Don Gauntz, Dr Holly Coryell, Ed Young, Dr Bruce Duthie, Jeff Cutshaw, Reginald Woods, Defendants: Craig B Mingay, LEAD ATTORNEY, Nicholas A Williamson, WASHINGTON STATE ATTORNEY GENERAL (CLEANWATER), OLYMPIA, WA; Gregory K Ziser, LEAD ATTORNEY, WASHINGTON STATE ATTORNEY GENERAL'S OFFICE, OLYMPIA, WA.

For Mark Lindquist, Pierce County Prosecutor, Defendant: Alicia Marie Burton, LEAD ATTORNEY, PIERCE COUNTY PROSECUTING ATTORNEY'S OFFICE (CIVIL), CIVIL DIVISION, TACOMA, WA.

REPORT AND RECOMMENDATION

J. Richard Creatura, United States Magistrate Judge.

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b) (1) (A) and (B), and local Magistrate Judge Rules MJR1, MJR3 and MJR4.

Plaintiff fails to meet his burden of showing that he is entitled to summary judgment on any issue as a matter of law. Therefore, the Court recommends denial of plaintiff's motion for partial summary judgment. Plaintiff fails to show mental health treatment provided to him or the sex offender treatment available at the Special Commitment Center are unconstitutional as a matter of law. Plaintiff is not entitled to summary judgment on his conditions of confinement claim because most of the issues he attempts to raise do not apply to him and he argues these claims in the abstract. Further, plaintiff's allegations regarding a constitutional abuse of the grievance process do not implicate any defendant that plaintiff seeks summary judgment against. Plaintiff fails to show that he is entitled to summary judgment on his retaliation claim because he does not provide evidence to show that any adverse action was taken against him because he engaged in protected activity. The Court cannot consider plaintiff's request for release, nor his request that he be moved to another facility, nor his claim of improper information being in his file because plaintiff is collaterally challenging the fact or duration of his civil commitment in a civil rights action and he must pursue these issues through a habeas corpus proceeding.

With regard to defendants' cross motion for summary judgment, defendants presented evidence that the treatment program available to plaintiff is the result of their professional judgment and is constitutional. Plaintiff's lay witness testimony in which the witness gives an opinion on the constitutionality of the treatment program is inadmissible and does not raise a material question of fact precluding summary judgment (Dkt. 114-3). Plaintiff also fails to place evidence before the Court showing that any defendant has been deliberately indifferent to his conditions of confinement or retaliated against him for engaging in constitutionally protected activity. Accordingly, the Court recommends granting defendants' cross motion for summary judgment.

The Court will address defendant Lindquist's motion for summary judgment in a separate Report and Recommendation.

BACKGROUND

Before the Court are three motions for summary judgment (Dkt. 114, 122, and 143). The first motion is plaintiff's motion for partial summary judgment (Dkt. 114). The second motion is defendants' cross motion for summary judgment by all defendants except Mark Lindquist (Dkt 122). And the third motion is defendant Lindquist's motion for summary judgment (Doc. 143). In this Report and Recommendation, the Court will address the first two of these motions. Plaintiff's motion for partial summary judgment is brought against four of the eight defendants. Plaintiff asks for summary judgment against defendants Cunningham, Gauntz, Coryell and Duthie (Dkt. 114). Plaintiff asks the Court to find that these defendants failed to provide him with adequate mental health or sex offender treatment, that these defendants retaliated against him for filing prior actions, that the conditions of confinement are unconstitutional, that the grievance system has been abused, and that he does not meet the criteria for continued placement at the Special Commitment Center because the information used to commit him is inaccurate. Plaintiff also asks that the Court move him to another Department of Social Health Services center to address his mental illness (Dkt. 114 p. 12).

Plaintiff is a resident at the Washington State Special Commitment Center. Plaintiff stipulated to civil commitment in 2004, agreeing that he suffered from schizophrenia and an anti personality disorder. In re McGary, 128 Wn.App. 467, 473, 116 P.3d 415 (2005). Plaintiff also stipulated that his anti personality disorder made it more likely than not that he would engage in predatory acts of sexual violence ( id .). Because plaintiff had spent several years in treatment before he stipulated to civil commitment, the stipulation allowed him to be sent to a secured transition facility in September of 2004. While at this less restrictive facility, plaintiff was unable to control his schizophrenia and the superior court revoked his less restrictive housing alternative. In re McGary II, 155 Wn.App. 771, 776, 231 P.3d 205 (2007). During the time that plaintiff was at the less restrictive housing facility, he filed a federal action against a number of persons alleging that the sex offender and mental health treatment he received was unconstitutional, that he was subjected to unlawful restraint, and that defendants retaliated against him for filing grievances and litigation. McGary v. Culpepper, 05-5376 RBL-JRC. While the majority of the allegations were dismissed, a claim of unlawful restraint and a claim of retaliation against one defendant survived summary judgment ( McGary v. Culpepper, 05-5376 RBL-JRC Dkt. 196). The case settled with no admission of liability or wrongdoing ( id . Dkt. 206).

Mr. McGary brings this action for events that allegedly occurred between February of 2010 and the filing of this action in February of 2013. Plaintiff alleges unconstitutional sex offender treatment, unconstitutional mental health treatment, unconstitutional conditions of confinement, and retaliation (Dkt. 42 pp. 9-18).

Plaintiff supported his motion with over four hundred pages of exhibits and affidavits (Dkt. 114 and 116). The Court has spent a considerable amount of time reviewing these documents and finds that they often do not support the proposition for which they are cited. By way of example, plaintiff cites to the affidavit of Everett Bird as evidence supporting the propositions that the mental health treatment is unconstitutional and the conditions of confinement are intolerable. Review of this affidavit shows it to be devoid of any mention of any defendant and it contains only conclusory statements regarding racism at the facility without providing any factual basis for those statements or identifying any person (Dkt. 114-2). Further, ...


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