United States District Court, W.D. Washington, Tacoma
RONALD J. BIANCHI, Plaintiff,
WASHINGTON STATE DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART,
REQUESTING SUPPLEMENTAL BRIEFING, AND RENOTING
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable
Theresa L. Fricke, United States Magistrate Judge (Dkt. 37),
and Plaintiff Ronald J. Bianchi's (“Bianchi”)
objections to the R&R (Dkt. 39).
2015, Bianchi filed suit in Clallam County Superior Court
against Defendants Washington State Department of Corrections
(“DOC”), Katrina Henry (“Henry”),
Dale Robertson (“Robertson”), and Clifford
Johnson (“Johnson”), claiming negligence and
medical malpractice. Dkt 5-1 at 7. On April 25, 2016 Bianchi
amended his complaint to add a section § 1983 claim
against Defendants. Dkt 1-2 at 2. On May 23, 2016,
Bianchi's lawsuit was removed to this Court. Dkt. 1.
1, 2017, Defendants moved for summary judgment to dismiss
Bianchi's complaint. Dkt. 16. On August 6, 2017, Bianchi
filed his opposition to Defendants' motion for summary
judgment. Dkt. 24. On August 7, 2017, Bianchi filed his
amended opposition to Defendants' motion for summary.
November 30, 2017, Judge Fricke recommended granting
Defendants' motion as to Bianchi's Eighth Amendment
claims. Dkt. 37. Judge Fricke also recommended declining
supplemental jurisdiction over Bianchi's medical
negligence claims under state law. Id. On December
18, 2017, Bianchi objected to the R&R. Dkt. 39. On
January 3, 2018, Defendants responded to Bianchi's
objections. Dkt. 40.
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.
objections to the R&R were untimely because they were
filed on December 18, 2017, three days past the deadline of
December 15, 2017. Dkt. 39. The R&R was issued on
December 1, 2017 (Dkt. 37), and Bianchi had fourteen days to
object to its findings. Fed.R.Civ.P. 72(b)(2). Nonetheless,
the Court may consider the claims of an untimely objection on
their merits. See Miranda v. Anchondo, 684 F.3d 844,
848 (9th Cir. 2012). It will do so here.
Defendant Washington State Department of Corrections
does not object to the R&R's finding that the DOC is
immune under the Eleventh Amendment. Dkt. 39 at 4. Although
Bianchi invokes multiple rules relevant to Eleventh Amendment
immunity's inapplicability to individual defendants, he
does not assert any facts or analysis to argue that the
immunity does not apply to the DOC as a state agency.
Id. Nonetheless, the Court notes that this case was
previously removed by Defendants from state court.
noted in the R&R, “a State is not a person within
the meaning of § 1983.” Will v. Michigan
Dep't of State Police, 491 U.S. 58, 64 (1989). This
construction of the term “person” as it appears
in 42 U.S.C. § 1983 is closely related to Eleventh
Amendment immunity. “[A] federal court's remedial
power, consistent with the Eleventh Amendment, is necessarily
limited to prospective injunctive relief, and may not include
a retroactive award which requires the payment of funds from
the state treasury.” Edelman v Jordan, 415
U.S. 651, 677 (1974) (internal citations omitted).
Accordingly, the R&R correctly concludes that Bianchi may
not assert claims for monetary damages against the DOC.
See Lapides v. Bd. of Regents of Univ. Sys. of
Georgia, 535 U.S. 613, 617 (2002) (“Lapides'
only federal claim against the State arises under 42 U.S.C.
§ 1983, that claim seeks only monetary damages, and we
have held that a State is not a ‘person' against
whom a § 1983 claim for money damages might be
this construction of § 1983 is not the same as Eleventh
Amendment immunity, and it does not prevent the Court from
providing prospective injunctive relief when Eleventh
Amendment immunity has been waived. A “[s]tate's
action joining the removing of [a] case to federal court
waive[s] its Eleventh Amendment immunity.”
Lapides, 535 U.S. at 624 (2002). Accordingly,
because the DOC voluntarily removed this case, its Eleventh
Amendment immunity does not bar Bianchi's Eighth
Amendment claims seeking prospective injunctive relief in the
form of specific medical treatments.
on the foregoing, the Court adopts the R&R's
recommendation in part and enters summary judgment in favor
of the DOC on Bianchi's monetary claims against the DOC
under § 1983 on the basis that the DOC is not a
“person” within the meaning of the statute.
However, the Court declines to adopt the R&R's
analysis that Eleventh Amendment immunity prevents the Court
from hearing Bianchi's Eighth Amendment claims for
Court requests further briefing and supplemental evidence to
the extent necessary to address whether the Eighth Amendment
requires that the DOC provide Bianchi with the injunctive
relief that he requests in his complaint, including: (1)
surgery, (2) pain medication, (3) rehabilitation, or (4)
other “follow up care” such as renewed access to
an abdominal binder. See Dkt. 1-2 at 14. Bianchi has
submitted evidence in the form of numerous grievances and
complaints suggesting that he suffers pain arising from
simple daily activities such as sitting up, sneezing, or
bowel movements. These grievances do not show that the
individually named defendants personally participated in
denying any necessary medical care to Bianchi. However, they
do suggest that some prison officials were aware of
Bianchi's ongoing symptoms. While it was suggested on at
least one occasion that Bianchi's pain and discomfort be
treated with Ibuprofen or Tylenol, it is unclear whether he
has been provided with any treatment for his pain or whether
any treatment beyond what he has already received was
required under the Eighth Amendment. Additionally, it is
unclear to the Court how Bianchi can assert claims ...