United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANTS CARVER AND BERRES'
MOTION FOR SUMMARY JUDGMENT
J. BRYAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Steve Carver and
Kristin Berres' Motion for Summary Judgment Dismissal of
All Claims. Dkt. 46. The Court has considered the pleadings
filed regarding the motion and the file herein.
case, Plaintiff, a former prisoner, alleges that Defendants
Carver and Berres, nurses at the Pierce County, Washington
jail, violated his federal constitutional rights when they
showed deliberate indifference to his serious medical need
regarding a leg lesion and were negligent. Dkt. 26.
Defendants Carver and Berres now move for summary dismissal
of the claims against them. Dkt. 46. Plaintiff did not
respond. For the reasons stated below, the motion (Dkt. 46)
should be granted, and the claims dismissed.
19, 2014, Plaintiff made a healthcare request, which stated,
“I have a zit like soar [sic] on my right leg. It
started out itching but now its [sic] grown and its [sic]
very red and its [sic] painful, and it keeps growing.”
Dkt. 47, at 8. The next day, he was seen by Defendant Berres,
who diagnosed Plaintiff with a lesion, thought to be an
insect bite, and prescribed oral antibiotics. Id.,
22, 2014, Plaintiff made a second healthcare request,
stating, “[t]he so called bug bite on my [right] leg
has gotten worse and [now] is a throbbing pain. I can't
sleep cause [sic] just the slightest touch send horrible
pain, and it hurts to walk.” Dkt. 47, at 9.
The response states only “Seen by SCarver DNP on
23, 2014, Plaintiff sent a third healthcare request form,
which provided, “I now believe I have merca on my
[right] leg. It has more than tripled its size since I saw
the doctor and my lower leg is completely swollen. This is
the 3rd [request] I've put in. Can someone
please help me!” Dkt. 47, at 10.
24, 2014, Plaintiff was seen by Defendant Carver, who noted
that the lesion had grown. Dkt. 47, at 15. Defendant Carver
incised and drained the lesion, gave Plaintiff an injection
of antibiotic, and placed him on additional antibiotics.
Id. The fluid drained from the lesion was sent for
culture, Dkt. 47, at 18, and his antibiotics were changed as
a result. Id.
was seen again on July 10, 2014, and the lesion was noted to
be healing slowly. Id., at 16. He was given an
additional antibiotic. Id. On August 5, 2014,
Plaintiff was again seen and reported that he lesion was
“just about healed.” Id. He sought no
connection with the treatment of his leg lesion, Plaintiff
makes claims against Steve Carver RN and Kristin Berres, RN,
for violation of his Eighth Amendment rights against cruel
and unusual punishment, pursuant to 28 U.S.C. § 1983,
and negligence. Dkt. 26. Plaintiff also asserts a claim for
negligence against Pierce County, Washington regarding the
leg lesion treatment, but that claim is not the subject of
STANDARD FOR MOTION FOR SUMMARY JUDGMENT
judgment is proper only if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the non moving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)(nonmoving party must present specific, significant
probative evidence, not simply “some metaphysical
doubt.”). See also Fed. R. Civ. P. 56(e).
Conversely, a genuine dispute over a material fact exists if
there is sufficient evidence supporting the claimed factual
dispute, requiring a judge or jury to resolve the differing
versions of the truth. Anderson v. Liberty
Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec.
Service Inc. v. Pacific Electrical Contractors
Association, 809 F.2d 626, 630 (9th Cir. 1987).
determination of the existence of a material fact is often a
close question. The court must consider the substantive
evidentiary burden that the nonmoving party must meet at
trial - e.g., a preponderance of the evidence in most civil
cases. Anderson, 477 U.S. at 254, T.W. Elect.
Service Inc., 809 F.2d at 630. The court must resolve
any factual issues of controversy in favor of the nonmoving
party only when the facts specifically attested by that party
contradict facts specifically attested by the moving party.
The nonmoving party may not merely state that it will
discredit the moving party's evidence at trial, in the
hopes that evidence can be developed at trial to support the
claim. T.W. Elect. Service Inc., 809 F.2d at 630
(relying on Anderson, supra). ...