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Bistryski v. Department of Health Services of Stafford Creek Corrections Center

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

December 19, 2017


         Noted for January 5, 2018



         This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding with this action pro se and in forma pauperis. Defendant Michael Furst, M.D., has filed a motion to dismiss the claims against him under Federal Rule of Civil Procedure (FRCP) 12(b)(6). Dkt. 23. The undersigned recommends that the Court dismiss the claims against Dr. Furst with prejudice because Plaintiff fails to state a claim under 42 U.S.C. § 1983.


         Mr. Bistryski is incarcerated at the Monroe Correctional Complex-Special Offender Unit. He sues multiple defendants including Dr. Furst for damages and injunctive relief, asserting that defendants have violated his right to adequate medical care under the Eighth Amendment. Dkt. 6, at pp. 4, 6-14.


         A pro se complaint must be liberally construed. Mangiaracina v. Penzone, 849 F.3d 1191, 1195 (9th Cir. 2017). To survive a motion to dismiss under FRCP 12(b)(6), a plaintiff must state “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is considered facially plausible when the facts allow the court to reasonably infer that the defendant is liable under the law for the acts or omissions that are alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court assumes the factual allegations to be true; yet if the plaintiff makes conclusory allegations or unreasonable inferences, those allegations or inferences will not overcome an FRCP 12(b)(6) motion to dismiss. Id.; Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The Court's review is limited to the allegations contained in the complaint and any exhibits that are incorporated by reference and attached to the complaint. Teixeira, 873 F.3d at 679 & n.11.

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing (1) the conduct the plaintiff complains of was committed by a person acting under the color of state law; and (2) the conduct deprived the plaintiff of a federal constitutional or statutory right. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). To satisfy the second prong, a plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). The plaintiff must allege that a specific injury resulted from the conduct of a particular defendant and that an affirmative link existed between the injury and that defendant's conduct. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

         Plaintiff asserts that defendant Durst deprived him of his Eight Amendment right to adequate medical care. To set forth an Eighth Amendment for failure to provide medical treatment, a plaintiff must allege facts that support two elements.

         First, the plaintiff must show a serious medical need, meaning the defendant's failure to treat the plaintiff's condition could cause “further significant injury or the unnecessary and wanton infliction of pain.” Lemire v. California Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1081 (9th Cir. 2013).

         Second, the plaintiff must show that the defendant's response to the need was deliberately indifferent. Lemire, 726 F.3d at 1082. This requires (a) a purposeful act or failure to respond to the plaintiff's pain or possible medical need, and (b) harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The defendant must know of and disregard an excessive risk to the plaintiff's health or safety. The defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Accordingly, mere indifference, negligence, or medical malpractice will not support a deliberate indifference claim. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980).

         Here, Plaintiff contends that he adequately pleaded an Eight Amendment deliberate indifference claim against Dr. Furst. The Court disagrees.

         Plaintiff alleges the following facts in his complaint: Around September 2014, he began experiencing “neurological disturbances such as inability to focus, mental fatigue, short-term memory loss, general mental fogginess, and strange speech and cognition errors.” Dkt. 6, p. 5. These symptoms “came over him in waves” that “would leave behind permanent damage, ” including difficulty studying, short-term memory problems, “lingering linguistic and logical difficulties, ” “lingering fatigue, slowness, and fogginess, ” and changes to his personality. Id. Each experience causes Plaintiff “progressively more intense mental distress and suffering.” Dkt. 6, p. 6.

         He suspected that he was suffering from a condition caused by a neurological illness and/or exposure to toxins. Id. He told defendant Scott Light, PAC, about these symptoms on June 22, 2015. Dkt. 6, p. 7. He told Mr. Light and other staff that he was afraid to return to his unit because he feared further exposure to whatever was causing his symptoms. Dkt. 6, p. 7. Prison staff sent him to a “suicide watch” cell, where he spent about a ...

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