United States District Court, W.D. Washington, Tacoma
ETIENNE L. CHOQUETTE, Plaintiff,
BERNARD E. WARNER, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable J.
Richard Creatura, United States Magistrate Judge (Dkt. 108),
and Defendants' objections to the R&R (Dkt. 112).
background of this case is set forth in the underlying
R&R, which was filed on December 12, 2017. Dkt. 108. On
December 27, 2017, Defendants filed their objections. The
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
first object to the R&R's reliance on the testimony
of P.A. Phillips. Dkt. 112 at 1-3. The Court has already
resolved this issue in its previous order regarding the
R&R on Defendants' motion to exclude. Dkt. 117 at 2.
There the Court determined that Judge Creatura properly
considered the testimony of P.A. Phillips. Id. The
Court need not address the issue again.
next object on the basis that the R&R failed to account
for the testimony of Dr. Wundes that it was not unreasonable
to try baclofen instead of gabapentin. However, just because
Dr. Wundes agrees that it was not unreasonable to try an
increased dosage of baclofen to address possible spasticity
does not mean he agrees that it was reasonable for Defendants
to entirely stop Plaintiff's concurrent dosage of
gabapentin for his neuropathic pain. In fact, other testimony
from Dr. Wundes suggests that he believes it was unreasonable
to stop administering gabapentin. Dkt. 91-1 at 10-11, 21. Nor
does this statement from Dr. Wudnes's deposition address
Defendants failure to promptly reinstate the gabapentin
treatment after it was clear that the baclofen was not
helping Plaintiff's neuropathic pain. The R&R did not
err in declining to consider this statement as convincing
evidence that Dr. Wundes believed it was reasonable for
Defendants to stop Plaintiff's gabapentin treatment in
contravention of multiple recommendations from treating
also object to the R&R by arguing that there is
insufficient evidence to show that individual defendants had
any personal knowledge that Plaintiff was suffering from
neuropathic pain. To the contrary, there are numerous pieces
of evidence to suggest that Defendants had been informed and
were aware of Plaintiff's neuropathic pain, including:
(1) he had previously been treated with gabapentin for his
multiple sclerosis by the Department of Corrections, Dkt.
91-2 at 26; (2) materials used by Defendants stated that
multiple sclerosis can result in neuropathic pain and should
be treated with gabapentin, id. at 19-20; and (3)
Defendant Duvall specifically informed Defendant Hammond that
Plaintiff was suffering from neuropathic pain in the form of
a “significant reflex arc.” Id. at 37.
Defendants point out that the original non-formulary request
on November 27, 2013, made no specific mention of neuropathic
pain. See Dkt. 84-1 at 173. But that does not overcome
the significant evidence indicating that Defendants knew
neuropathic pain is frequent or even expected with multiple
sclerosis, that gabapentin is a first-line treatment for such
pain, and that Defendants refused to provide Plaintiff with
the gabapentin treatment recommended by his treating
neurologist. Moreover, Defendants' argument regarding the
first non-formulary request fails to address concerns raised
by Defendants' denial of the second non-formulary request
after it was evident that baclofen was not resolving
Plaintiff's apparently debilitating neuropathic pain.
See Dkt. 91-3 at 7-8.
the Court rejects Defendants contentions that they are
entitled to qualified immunity under the precedent of
Ziglar v. Abbasi, 137 S.Ct. 1843, 1866-68 (2017),
and various First, Seventh, and Tenth Circuit decisions.
However, even though these decisions indicate a varying
degree of weight to be afforded treating and non-treating
physicians in the context of qualified immunity, the
underlying principle remains that “[t]he choice of
a medical option that, although disfavored by some in the
field, is presented by competent professionals does not
exhibit a level of inattention or callousness to a
prisoner's needs rising to a constitutional
violation.” Kosilek v. Spencer, 774 F.3d 63,
91-92 (1st Cir. 2014) (emphasis added). Accordingly, even if
these cases are considered, Plaintiff's claims still
survive summary judgment as there is sufficient evidence to
suggest that Defendants' denial of Plaintiff's
multiple non-formulary requests goes beyond a disfavored
medical option and instead consists of a deliberate or
reckless disregard to Plaintiff's apparent neuropathic
pain and need for adequate medication.
Court having considered the R&R, Plaintiff's
objections, and the remaining record, does hereby find and
order as follows:
(1) The R&R (Dkt. 108) is ADOPTED; and
(2) Defendants' motion for summary judgment (Dkt. 82) is
 Notably, the report states that
Plaintiff suffers from multiple sclerosis and radiculopathy
and was already taking both gabapentin and baclofen, although
the parties do not discuss how these statements might be
synonymous with, or at ...