United States District Court, W.D. Washington, Tacoma
ORDER ON OBJECTIONS DKT. #67
B. LEIGHTON, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants' Objections
[Dkt. #67] to Magistrate Judge Theresa Fricke's Report
and Recommendation [Dkt. #64] on the Parties'
Cross-Motions for Summary Judgment [Dkt. ##40, 44] and on
Plaintiff Gallagher's Motion for a Preliminary Injunction
[Dkt. #51]. Gallagher is serving a life sentence, without the
possibility of parole, at Clallam Bay Corrections Center. For
years, he has complained of an umbilical hernia, which has
steadily grown in size and caused him increasing pain. The
defendants elected to observe Gallagher and to delay surgery
until his hernia became intractable. When Gallagher developed
an inguinal hernia too, Defendant Department of Corrections
permitted him to have it surgically removed but refused to
authorize a dual surgery. Gallagher continues to suffer from
his umbilical hernia.
Washington State, its DOC, and nine current or former DOC
employees for failing to repair his umbilical hernia, which
he alleges continues to cause him pain daily. He claims the
defendants failed to accommodate his pain in violation of the
Americans with Disabilities Act,  acted with deliberate
indifference to his pain and health risks in violation of his
Eighth Amendment rights,  and inflicted cruel punishment on him
in violation of Washington's Constitution.
Fricke considered the parties' cross-motions for summary
judgment. She recommends dismissing Gallagher's ADA claim
because he provided no evidence he suffers from a disability.
She recommends dismissing his deliberate indifference claim
against Bovenkamp, Henry, Holthe, Johnson, and Pacholke
because in their roles as supervisors, they did not adversely
interfere with Gallagher's treatment. She also recommends
dismissing Gallagher's state law claim because alleged
violations of Washington's Constitution are not
independently actionable torts.
Fricke encourages the Court to enter an order for a
preliminary injunction requiring the defendants to present
Gallagher for evaluation by a qualified and independent,
outside medical doctor. She recommends the doctor evaluate
(1) whether Gallagher has an imminent need for surgery on his
umbilical hernia, and if so, when that surgery should be
scheduled, (2) how to address Gallagher's pain and
discomfort during litigation, (3) whether the other medical
ailments Gallagher has developed are associated with
inadequate treatment of his hernia, and (4) whether those
ailments are so serious they should be treated during
litigation, and if so, how and when.
defendants object to Judge Fricke's R&R. They argue
Gallagher's Eighth Amendment claim should be dismissed
because he cannot establish they acted with deliberate
indifference in failing to treat him, only that he would have
preferred another course of treatment to their chosen and
medically-acceptable one. They argue they are entitled to
qualified immunity because Hamby v. Hammond, 821
F.3d 1085 (9th Cir. 2016), endorsed “watchful
waiting” when one suffers from an umbilical hernia.
Defendants also argue Gallagher's supervisory liability
claim against Hammond should be dismissed because he reviewed
Gallagher's grievances to ensure they were adequately
investigated procedurally, not medically. Finally, they argue
a preliminary injunction is improper because, they contend,
Gallagher is unlikely to succeed on the merits and fails to
show he will suffer irreparable harm.
the Court agrees with Judge Fricke that the defendants do not
have qualified immunity on his Eighth Amendment claim. The
evidence establishes that in the light most favorable to
Gallagher, (1) the defendants acted with deliberate
indifference to his need for medical treatment by ignoring
his repeated complaints that his umbilical hernia was (and
is) causing him pain and disrupting his daily functioning and
by egregiously operating on one hernia but not the other, and
(2) it was clearly established that observing a hernia's
growth, without more, violates one's right to be free
from cruel and unusual punishment. The Court adopts Judge
the Court agrees Gallagher's claim against Hammond should
not be dismissed. He could be liable in his individual
capacity because, in the light most favorable to Gallagher,
Hammond knew of Gallagher's grievances and could have
alleviated them. The Court adopts Judge Fricke's analysis
here as well.
the Court disagrees that a preliminary injunction requiring
it to commission and monitor Gallagher's medical
treatment is narrowly tailored or warranted at this time. He
now has counsel capable of assisting him in obtaining an
expert who can evaluate his medical needs.
Objections [Dkt. #67] are DENIED. Judge Fricke's R&R
[Dkt. #64] is ADOPTED IN PART:
 Gallagher asserts his ADA claim
against all defendants: Washington State, DOC, Bovenkamp,
Fetroe, Hammond, Haynes, Henry, Holthe, Johnson, ...