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Ross v. Washington State Department of Corrections

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

January 3, 2018

WILLIAM ROSS, Plaintiff,
v.
WASHINGTON STATE DEPARTMENT OF CORRECTIONS, et al., Defendants.

          ORDER ON REPORT AND RECOMMENDATION

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS ORDER is issued upon review of the Report and Recommendation of Magistrate Judge Theresa Fricke. Dkt. 45. The R&R recommends that the Court grant Defendants' motion for summary judgment of dismissal. See Dkt. 35.

         This case stems from the allegation that Plaintiff sustained harm from Defendants' inadequate response to a slip and fall incident at a corrections facility. Named in the Complaint are Defendants Washington Department of Corrections, Bernard Warner, Richard Morgan, Jeffrey Uttecht, Melissa Andrewjeski, Jacqueline Fluiatt, Chad Davis, Steven Hammond, Consuelo Wallace, and Cory A. Choisnet (identified by Plaintiff as “Mr. Swannae”).

         The Complaint alleges a 42 U.S.C. §1983 cause of action, alleging that, in violation of Plaintiff's Eighth Amendment rights, Defendants responded to a serious medical need with deliberate indifference. Dkt. 11. The R&R recommends (1) dismissal of all the defendants, on grounds that Plaintiff has not shown deliberate indifference to a serious medical need; (2) dismissal as to all defendants, except Defendant Wallace and Defendant Choisnet, on grounds that Plaintiff has not shown the defendants' personal participation; and (3) rejecting Defendants' argument that dismissal is warranted for failure to exhaust administrative remedies. Dkt. 45 at 8-13.

         The Court incorporates the R&R and HEREBY ADOPTS these three recommendations. The 42 U.S.C. §1983 cause of action is HEREBY DISMISSED as to all defendants.

         The Complaint also alleges two state law causes of action for medical malpractice and negligence. Dkt. 45 at 13, 14. The R&R recommends that the Court decline to exercise its supplemental jurisdiction and dismiss the state law causes of action without prejudice.

         The Court incorporates the R&R and HEREBY ADOPTS this recommendation. The Court declines to exercise its supplemental jurisdiction over the state law causes of action for medical malpractice and negligence. These causes of action are HEREBY DISMISSED WITHOUT PREJUDICE as to all defendants.

         * * *

         Herein the Court adds analysis to the R&R, based on Plaintiff's Objections and supplements thereto. See Dkts. 54, 56, 73.

         Plaintiff's Objection requested more time for discovery. The Objection did not specify what discovery remained or how the discovery could impact the pending motion for summary judgment. Dkt. 46. Airing on the side of caution, the Court renoted the R&R from May 16, 2017 to September 15, 2017, to give Plaintiff an opportunity to conduct additional discovery, but limited its scope to “what occurred on the day of the incident . . . and the claim against Defendant Cory Choisnet.” Dkt. 48 at 2. Prior to the September 15, 2017 deadline, Plaintiff had difficulty obtaining the affidavit Elgen McCoy, another inmate who witnessed part of the incident, but this issue was resolved with a discovery status conference and several rounds of pleadings. Dkts. 56, 58, 59, 60, 62-64, 66, 68, 73. No. additional discovery issues remain unresolved, and Plaintiff's most recent supplement to his Objection includes Mr. McCoy's affidavit. Dkt. 73 at 14, 15.

         In a supplement to Plaintiff's Objection, Plaintiff asks the Court to “deny the Defendants' Motion for Summary Judgment and reverse the Magistrate's R&R to go back and head for trial as to the claims Plaintiff makes against Choisnet[.]” Dkt. 54 at 4. This request appears to concede dismissal of all claims but those against Defendant Choisnet. In light of Plaintiff's request, as well as Plaintiff's supplemental objections, which include the addition of Mr. McCoy's affidavit to the record, the Court will analyze the Eighth Amendment cause of action against Defendant Choisnet. (The parties did not brief the merits of the two state law causes of action for medical malpractice and negligence.)

         a. Facts.

         According to Plaintiff's sworn affidavit, while helping with sweeping and mopping on June 19, 2015, at approximately 6:30-6:45pm, Plaintiff “slipped and fell with equipment in [his] hands.” Dkt. 42 at 5 (6:45pm). See Dkt. 54 at 2, 13 (6:30pm). Plaintiff recalls that there were no wet floor signs, but he does not accuse any defendants of directly causing his fall. See Dkt. 45 at 5. Plaintiff states that “[b]ecause of the equipment, [he] could not break [his] fall and [he] cracked [his] head ...


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