United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE.
Paul Ochoa, proceeding pro se and in forma pauperis,
filed this 42 U.S.C. § 1983 civil rights lawsuit
alleging that he was assigned a top bunk while he was an
inmate at the Department of Corrections (“DOC”)
Washington Corrections Center (“WCC”) and that he
injured his shoulder while climbing down from the upper bunk.
Defendants Dean (identified as “Eean” by
plaintiff) Mason and Frank Longano (identified as
“Lonano” by plaintiff) move for summary judgment
pursuant to Federal Rule of Civil Procedure (“Fed. R.
Civ. P.”) 56. Dkt. 15. They contend there are no
allegations demonstrating their involvement and it is
undisputed that they did not personally participate in any of
the alleged events that caused Mr. Ochoa's injury. Dkt.
15. Mr. Ochoa filed no papers in opposition to the motion.
reviewed the parties' filings, summary judgment evidence,
and balance of the record, the undersigned recommends that
defendants' motion for summary judgment be granted.
Ochoa began his state time at WCC on August 16, 2013. Dkt. 7,
p. 2. Approximately two months later, he was transferred to
Cedar Creek Corrections Center (“CCCC”). On March
24, 2014, Mr. Ochoa was transferred to Twin Rivers in Monroe,
Washington and during that transfer, he spent one night at
the WCC where he was assigned to a top bunk. Id. He
states that he immediately informed unidentified
“staff” that he was disabled and not supposed to
be assigned an upper bunk. Mr. Ochoa alleges that he became
disabled in 1985 after a car accident after which his left
side remained partially paralyzed. He also alleges that he
had been assigned a Health Status Report (“HSR”)
at his previous prison location indicating he should be
assigned an upper bunk. However, unidentified WCC staff
advised Mr. Ochoa on March 24, 2014, that he would have to go
to the assigned upper bunk because there were no lower bunks
available. Id. Thereafter, Mr. Ochoa fell to the
concrete floor from the upper bunk and injured his shoulder.
Ochoa alleges that he began a “conservative Treatment
program” for his shoulder at Twin Rivers and on October
10, 2015, was told that the treatment had failed. X-rays
taken October 16, 2015 revealed a “severe displacement
which caused a deteriorating rotator cuff requiring immediate
surgery”. After the Care Review Committee
(“CRC”) determined that surgery was not
necessary, Mr. Ochoa filed a grievance. At Providence
Hospital he received a cat-scan, and on December 8, 2015, he
was admitted for surgery of a “locked chronic anterior
shoulder dislocation diagnosis to replace [his] right
shoulder rotator cuff and ball joint.” Dkt. 7, p. 3.
Mr. Ochoa alleges that he “endured 21 months of
pain” after falling from an upper bunk, and he seeks $5
million in damages. Id.
to Defendant Frank Longano, WCC Medical Director, inmates can
request a HSR for an accommodation, including assignment to a
lower bunk. Dkt. 17, Declaration of Frank Longano, ¶4.
Unit staff does not have access to inmate medical files. If
an inmate receives a HSR, medical staff keeps the original
record and the inmate is given a copy. A copy is not provided
to unit staff unless provided by the inmate. Id.
Statewide Offender Orientation Handbook (Handbook) states
that the Handbook “is provided to all offenders housed
at Department facilities.” Dkt. 17, Longano Decl.,
¶ 5. The August of 2013 to March of 2014 versions of the
Status Report (HSR)
form DOC 13-041 Health Status Report (HSR) is a document that
notes any medical, visual, mental health, and/or dental
limitations you may have.
If your medical condition requires you to have special
equipment or items, such as ace wraps, crutches, a
wheelchair, etc., you will be issued an HSR.
You must keep your copy of the HSR with you to show that the
equipment is authorized.
You are required to comply with the instructions and