United States District Court, W.D. Washington, Tacoma
ORDER ON REPORT AND RECOMMENDATION
J. BRYAN UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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
* * *
the Court adds analysis to the R&R, based on
Plaintiff's Objections and supplements thereto.
See Dkts. 54, 56, 73.
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.
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.)
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 ...