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Elmore v. Washington Department of Corrections

United States District Court, W.D. Washington, Tacoma

May 28, 2015

ROBERTA ELMORE, Plaintiff,
v.
WASHINGTON DEPARTMENT OF CORRECTIONS, WASHINGTON, CORRECTIONS CENTER FOR WOMEN, DR. STEVEN HAMMOND, Chief Medical Officer, KENNETH TAYLOR, Director of Health, DOC, JEFF PERRY, Healthcare Manager, Dr. Colter, staff physician, and ARNP PAM SAARI, Defendants.

ORDER ON REPORT AND RECOMMENDATION AND OTHER MOTIONS

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge J. Richard Creatura (Dkt. 33), the parties' objections to the Report and Recommendation (Dkts. 37 and 38), Plaintiff's Motion to Amend her Complaint (Dkt. 35), Plaintiff's Motion for a Continuance and the Court Consider Additional Evidence and Response to Summary Judgment in De Novo Review (Dkt. 36). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

Plaintiff, pro se, filed this case on October 28, 2013, asserting that her Eighth Amendment right against cruel and unusual punishment was violated in connection with medical care she received as a prisoner at the Washington Correction Center for Women ("WCCW"). Dkts. 1 and 6. Plaintiff's Complaint alleges she was denied access to a handicap cell. Id.

After consideration of the Report and Recommendation, the parties' Objections to the Report and Recommendation, the additional evidence and argument offered by Plaintiff, the Report and Recommendation should be adopted for the reasons stated below, except for the recommendation to dismiss Plaintiff's Eighth Amendment claims related to pain relief. The case should be re-referred to Magistrate Judge Creatura for a supplemental report and recommendation and for further proceedings. Plaintiff's motion to Amend her Complaint should be granted, except to the extent that her Amended Complaint asserts claims dismissed by this order.

I. FACTS

The background facts are stated in the Report and Recommendation (Dkt. 33, at 1-9) and are adopted here.

On April 13, 2015, the Report and Recommendation was issued, recommending the Defendant's motion to summarily dismiss Plaintiff's case be granted, in part, and denied, in part. Dkt. 33. On April 27, 2015, attorney Jean M. Schiedler-Brown appeared for Plaintiff. Dkt. 34. Plaintiff, though counsel, then filed her Objections to the Report and Recommendation (Dkt. 37), the Motion to Amend her Complaint (Dkt. 35) and her Motion for Continuance and for the Court [to] Consider Additional Evidence and Response to Summary Judgment (Dkt. 36). Defendants also filed objections to the Report and Recommendation. Dkt. 38.

II. DISCUSSION

A. REPORT AND RECOMMENDATION

Pursuant to Fed.R.Civ.P. 72(b)(3), if parties object to a magistrate judge's recommended disposition of a case, as they have here, the "district judge may accept, reject, or modify the recommended disposition, receive further evidence, or return the matter to the magistrate judge with instructions."

The Report and Recommendation should be adopted, except as to the Eighth Amendment claim against the individual defendants for deliberate indifference to Plaintiff's serious medical needs for failure to provide Plaintiff with proper pain medication. The case should be re-referred to the magistrate judge for a supplemental report and recommendation on that claim.

Although it was difficult to ascertain which claims Plaintiff was making in her original complaint, the Report and Recommendation's recommendations address Plaintiff's ยง 1983 claims and federal disability access related claims. In light of the difficulty in determining the nature of Plaintiff's claims from the complaint and Plaintiff's later pleadings, this approach was reasonable.

The Report and Recommendation recommends dismissal of all claims except federal claims for violation of Section 504 of the Rehabilitation Act ("Rehabilitation Act") and Title II of the Americans with Disabilities Act ("ADA") against the Washington Department of Corrections and the WCCW. The recommended dismissal of other claims is pursuant to Eleventh Amendment immunity. Dkt. 33.

This recommendation is appropriate for the reasons provided in the Report and Recommendation, and the recommendation should be adopted. Plaintiff objects, arguing that her state law claims should proceed against the state. This objection is without merit. Defendants have shown that the Washington Department of Corrections and WCCW are immune ...


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