United States District Court, W.D. Washington
November 24, 2014
DARNELL O. MCGARY, Plaintiff,
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.
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, statements or actions made by non defendants do not impute liability to a defendant. Liability is based on personal participation and causation. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
Plaintiff states that the court in McGary v. Culpepper found a defendant guilty of retaliation (Dkt. 114, p. 6). In fact, this claim survived summary judgment and the case then settled with no admission of liability or wrongdoing.
Plaintiff asserts that the sex offender treatment program that defendants set forth in discovery is no longer in effect (Dkt. 114, p. 7). But even if this statement is true, plaintiff provides no expert testimony showing that the treatment program that is available is constitutionally infirm.
Plaintiff contends that the Special Commitment Center is not offering any programming for anti personality disorders ( id .). Defendant Coryell contests plaintiff's assertion of fact and states that plaintiff participates in two treatment groups designed to address his mental issues and provide sex offender treatment (Dkt. 126 p. 2 ¶ 6). Thus, defendants have placed before the Court evidence contesting plaintiff's own assertions of fact as to both sex offender treatment and mental health treatment. Further, Dr. Sziebert states that plaintiff is only minimally medication compliant for his schizophrenia (Dkt. 124, ¶ 6). Dr. Sziebert states that because plaintiff refuses to take the type or amount of medication that would treat his schizophrenia symptoms, plaintiff lacks insight into the disease that would enable him to benefit from " further psychosocial therapies." ( id . at ¶ 10). Both Dr. Sziebert and Dr. Coyrell have offered expert opinions that the sex offender treatment and treatment for plaintiff's mental illness are the product of professional judgment and give plaintiff an opportunity to improve the condition for which plaintiff is confined ( id . at ¶ 11, Dkt. 126, ¶ 9). Plaintiff also repeatedly mischaracterizes interrogatory responses in his affidavit in support of his motion (Dkt. 114-1). By way of example, plaintiff states that defendant Cunningham acknowledged that plaintiff was transferred to Western State Hospital for treatment and not because of a violent act (Dkt. 114-1, p. 1) Defendant Cunningham's actual response was that he did not recall plaintiff being involved in any acts of violence (Dkt. 116-1). Plaintiff states that defendant Coryell had information regarding his allegedly voluntary return from the less restrictive alternative facility that she failed to share with others (Dkt. 114-1, p. 2 citing interrogatory response 5). In fact, defendant Coryell responded that she did not have personal knowledge regarding this information, but she was able to provide documents (Dkt. 116-1, p, 3). One of the documents provided was plaintiff's own statement to the superior court stating that his return to the Special Commitment Center was voluntary (Dkt. 116-1, p. 46-47). However, in its order revoking plaintiff's less restrictive housing alternative, the superior court did not find that plaintiff's return was voluntary and revoked the housing assignment because of plaintiff's failure to comply with medication and treatment requirements (Dkt. 116-1, p. 44-45). In summary, when considering plaintiff's motion for summary judgment, the Court has considered the evidence presented in light of plaintiff's representations, and finds plaintiff's observations often inaccurate.
STANDARD OF REVIEW
In federal court, summary judgment is required pursuant to Fed.R.Civ.P. 56(a) if the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine dispute as to any material fact. Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997). Once a party has moved for summary judgment Fed.R.Civ.P. 56(c) requires the nonmoving party to go beyond the pleadings and identify facts that show that a genuine issue for trial exists. Celotex Corp. v. Catrett 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
To state a claim pursuant to 42 U.S.C. § 1983, a complaint must allege: (i) the conduct complained of was committed by a person acting under color of state law and (ii) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). 42 U.S.C. § 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985). Initially, if plaintiff moves for summary judgment, plaintiff has the burden of presenting admissible evidence to support each of these elements. See Lujan v. Wildlife Fed., 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). It is then incumbent on defendants to demonstrate that there are legitimate issues of fact that preclude the granting of summary judgment. Celotex Corp. v. Catrett 477 U.S. at 323-24. If defendants move for summary judgment, initially, they need not present any evidence. Nevertheless, plaintiff has the burden of presenting admissible evidence to support each of the elements of the claims. Celotex Corp. v. Catrett 477 U.S. at 322 . If plaintiff fails to carry this burden, then summary judgment should be granted in favor of defendants. Celotex Corp. v. Catrett 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 ; Anderson v. Liberty Lobby Inc, 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The standard of review for a claim that mental health care is unconstitutional gives deference to the health care providers. Youngberg v. Romeo, 457 U.S. 307, 323, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Mental health treatment decisions are presumed valid; plaintiff must show a substantial departure from accepted professional judgment, practice, or standards in order to state a claim based on a specific action taken in relation to treatment. Id. Further, when sex offender treatment is at issue the due process clause of the Fourteenth Amendment requires access to treatment that provides an opportunity to cure or to improve the mental conditions for which they are confined. Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000).
Plaintiff asks the Court to hold that his mental health treatment and his sex offender treatment program do not meet minimal constitutional standards, that the conditions of confinement are unconstitutional, that he has been retaliated against for exercising his right of access to courts, that information in his file since 2010 is incorrect, that the grievance process has been abused, and that the defendants failed to protect him from harassment from another resident (Dkt. 114, p. 12). The Court will address each of these allegations in order.
A. Mental health and sex offender treatment.
Plaintiff argues that he only suffers from an anti personality disorder and that the Special Commitment Center programs only treat paraphilia or pedophilia (Dkt. 114, p. 7). Contrary to plaintiff's assertions, the Washington State Court of Appeals found that plaintiff stipulated to suffering from schizophrenia and an anti personality disorder. Detention of McGary, 128 Wn.App. 467, 473, 116 P.3d 415 (2005). Further, multiple mental health care providers over a number of years have found that plaintiff suffers from different diagnoses. In 2010, Psychologist Megan Carter diagnosed plaintiff with paraphilia not otherwise specified (nonconsent), in remission and noted that plaintiff had demonstrated symptoms of schizophrenia since 1994 (Dkt. 116-4, p. 68-69). Dr. Carter also noted an Axis II diagnosis of an anti personality disorder with high psychopathy ( id . at 70). In 2012, Dr. Carter and Dr. McLawson both signed another evaluation where Dr. McLawson diagnosed plaintiff as having:
Axis l: Paraphilia Not Otherwise Specified (Non-Consent), (in remission), Schizophrenia, Paranoid Type, Episodic with Interepisode Residual Symptoms
Alcohol Dependence, in a controlled environment
Cannabis Dependence, in a controlled environment
Axis ll Antisocial Personality Disorder
(Dkt. 116-5 p. 28). Thus, the record does not support plaintiff's assertion that his only mental condition is anti personality disorder. The Court does note that the anti personality disorder is the condition originally set forth to support his civil commitment. In re McGary, 155 Wash.App. 1010, 2010 WL 1042188 * 5 (2010). However, the Court also notes that plaintiff now has other diagnoses that a state court has determined justified his continued commitment. In re McGary, 175 Wash.App. 328, 306 P.3d 1005 (2013). The Court concludes that plaintiff's assertion that he only suffers from an anti personality disorder is factually misleading and incorrect.
The declarations of defendant Dr. Holly Coryell and Dr. Leslie Sziebert defeat plaintiff's motion for summary judgment on the issues of the adequacy of his mental health and sex offender treatment. These same declarations support defendants' cross motion. Dr. Coryell's declaration directly contradicts plaintiff's assertion that there are no sex offender treatment programs to treat his mental condition at the Special Commitment Center and sets forth two programs plaintiff is enrolled in that address his mental issues (Dkt. 126). The first treatment program is the power to change group which defendants state is designed to address behaviors and attitudes that prevent a resident from progressing through treatment including addressing internal barriers such as " chronic anti social attitudes, distorted beliefs about authority, symptoms associated with mental disorders/anxiety/paranoia." (Dkt. 126 p. 2 ¶ 6). Defendant Coryell also states that plaintiff is part of the Health Management Group that is designed to assist residents with management of symptoms of schizophrenia or related disorders ( id .). Thus, defendants have placed before the Court admissible evidence contesting plaintiff's assertions of fact as to the existence of both sex offender treatment and mental health treatment that is designed to meet his needs. When considering summary judgment the Court views the evidence in a light most favorable to the non-moving party. Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997).
Dr. Sziebert's declaration sets forth facts contesting plaintiff's statements regarding treatment of his mental conditions. Dr. Sziebert states that plaintiff is only minimally medically compliant and will not take the type or amount of medication " that would be most efficacious" in controlling his schizophrenia (Dkt. 124.) Dr. Sziebert also states that plaintiff has never returned to his earlier 2006, baseline level of control for his schizophrenia ( id .).
Defendants contend that the mental health treatment and the sex offender treatment program offered to plaintiff are the result of professional judgment and give plaintiff an opportunity to improve his condition (Dkt. 124, ¶ 11, 126, ¶ 9). Viewing the evidence in a light most favorable to the non moving party plaintiff has failed to show he is entitled to summary judgment on the issues of the constitutionality of his mental health or sex offender treatment.
Conversely, defendants have come forward with admissible expert medical and mental health testimony that the treatment provided is the result of their professional judgment and gives plaintiff the opportunity to improve his condition (Dkt. 124, 126). Plaintiff's attempt to admit lay person opinion testimony that the treatment is unconstitutional fails to raise an issue of fact because the affidavits of other residents does not show that they are qualified as experts who could render an opinion on the adequacy of medical or mental health treatment (Dkt. 144-3). See . Fed.R.Evid. 701, 702. The residents may testify as to their own observations, as Mr. Ambers does when he testifies that the treatment program previously had seven phases of treatment, but Mr. Ambers is not qualified to testify as to the constitutionality of the treatment program that is available (Dkt. 114-3, p. 2).The Court recommends denying plaintiff's motion regarding the constitutionality of mental health and sex offender treatment and granting defendants' cross motion on this issue.
B. Conditions of confinement and the grievance process.
Plaintiff argues this claim in the abstract and does not set forth what condition or conditions of confinement are unconstitutional (Dkt. 114). Plaintiff states that residents with major mental illness are warehoused in intensive management units or maximum security setting (Dkt. 114, p. 7). Defendants place evidence before the Court showing that since 2006, the only time plaintiff was placed in an intensive management or segregation setting was during the course of this litigation after plaintiff attempted to escape (Dkt. 129, ¶ 3). Further, while plaintiff complains of housing mentally ill residents in high security settings, he does not set forth any evidence that he is, or was, placed in a high security setting during the last three years (Dkt. 114).
The evidence placed before the Court shows that between February of 2010 and when this action was filed in February of 2013, plaintiff was not disciplined or placed in a disciplinary segregation for any reason (Dkt. 129, ¶ 6). Thus, his claim about housing mentally ill persons in segregation is not personal to him; thus, he cannot litigate such a claim. Plaintiff may not represent the interests of other persons. Although a non-attorney may appear pro se on behalf of himself, he has no authority to appear as an attorney for others. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Plaintiff's claims regarding mentally ill residents being placed in high security settings fails to state a claim or prevent summary judgment in this case against this plaintiff. Therefore, this Court recommends denying plaintiff's motion for summary judgment and granting defendants' motion for summary judgment on this claim.
Plaintiff makes statements about abuses and conditions of confinement in his motion for summary judgment, but he provided no details (Dkt. 114, p. 6). Plaintiff filed a number of grievances, some of which allege that resident Tramayne Francis harassed and threatened plaintiff with sexual assault (Dkt. 116-4 pp. 2-33). Plaintiff does not state that he was ever assaulted. Some of the other grievances involved alleged staff misconduct or complaints that other residents were aiding Mr. Francis by tapping on plaintiff's walls at night. The Court has reviewed plaintiff's grievances and they are not grievances against any defendant although some of the grievances were investigated or responded to by named defendants. ( id . 116-3, pp. 23-58). Two defendants, Young and Cutshaw, played a role in the grievance process. Plaintiff did not ask for summary judgment against either of these defendants. Further, review of the grievances shows that plaintiff's grievances were investigated ( id .). For the most part, plaintiff's grievances could not be substantiated. Plaintiff fails to show any violation of a constitutional right. There is no right to a particular grievance procedure. See Mann v. Adams, 855 F.2d 639 (9th Cir. 1988). While plaintiff may not have prevailed in every grievance he filed, this does not mean that his constitutional rights were violated by the procedure, or by any of these moving defendants.
Plaintiff has failed to meet his burden of presenting admissible evidence to support his claims. See Lujan v. Wildlife Fed., 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The Court recommends denying plaintiff's claims regarding the grievance procedures and the condition of confinement and granting defendants' cross motion on this issue.
To survive summary judgment on the retaliation claim, plaintiff must present admissible evidence to prove that: (1) a defendant took some adverse action against the inmate, (2) because of (3) the inmate's protected conduct and that this action (4) chilled the inmate's exercise of his First Amendment rights and (5) did not reasonably advance a legitimate correctional goal. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
At different points in the motion for summary judgment, plaintiff argues that the protected conduct he engaged in was litigation (Dkt. 114, pp. 3-5, 10). He then states that defendants may not retaliate against a person for filing grievances (Dkt. 114, p. 10). Plaintiff fails to cite the Court to any evidence that shows or infers that any defendant took any action against him because he engaged in the protected activity. Plaintiff attempts to fill this gap in his argument by noting that the Attorney General's Office in an e-mail noted that plaintiff could be placed on a " far back burner" once the facility had a mental health care provider stating that he still met the criteria for commitment (Dkt. 114, p.9, citing Dkt. 116-1 p. 48). The cited document is an e-mail regarding litigation preparation and plaintiff's attempt to re-cast it as a reference to treatment or placing him on the " far back burner" is disingenuous. Plaintiff fails to present evidence that supports his claim that adverse action was taken because of protected activity. The Court recommends denial of his motion for partial summary judgment on this issue and because he fails to state a claim the Court recommends granting defendants' cross motion on this issue.
D. Information used in civil commitment proceedings and movement to another facility.
Plaintiff alleges that an infraction from the time he was an inmate has been falsely characterized as sexual in nature and was used to change his score on the issue of his likelihood to reoffend (Dkt. 114, p. 10). Plaintiff alleges that this information is inaccurate. Plaintiff also alleges that he must be moved to a less restrictive treatment center for treatment of his mental conditions because he does not meet the criteria for residency at the Special Commitment Center. When a person is challenging the very fact of duration of confinement their sole remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
Plaintiff is attempting to challenge the underpinnings of his current civil commitment and he is also requesting release from the Special Commitment Center. Plaintiff may not proceed with these claims in a civil rights action. The United States Supreme Court held that " [e]ven a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). " [T]he determination whether a challenge is properly brought under § 1983 must be made based upon whether 'the nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of the judgment.' Id. If the court concludes that the challenge would necessarily imply the invalidity of the judgment or continuing confinement, then the challenge must be brought as a petition for a writ of habeas corpus, not under § 1983." Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) ( quoting Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997)). Plaintiff may not use the civil rights act to challenge his civil commitment proceedings. Therefore, the Court recommends denial of plaintiff's motion for summary judgment and granting defendant's cross motion on this issue.
E. Other issues.
Plaintiff raises or mentions other issues throughout his summary judgment motion. By way of example, plaintiff makes reference to a failure to protect him from resident Francis (Dkt. 114, p. 10). Plaintiff provides no connection between his other claims and any defendant he seeks summary judgment against. Plaintiff fails to provide the Court with enough information to consider these briefly mentioned claims and he does not show any entitlement to summary judgment. The Court recommends denying plaintiff's motion for partial summary judgment in its entirety.
Pursuant to 28 U.S.C. § 636(b) (1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b) (1) (C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed to set the matter for consideration on December 12, 2014, as noted in the caption.