United States District Court, W.D. Washington, Tacoma
for January 5, 2018
REPORT AND RECOMMENDATION
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
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.
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,
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.
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).
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.
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).
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).
Plaintiff contends that he adequately pleaded an Eight
Amendment deliberate indifference claim against Dr. Furst.
The Court disagrees.
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.
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 ...