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Bianchi v. Washington State Department of Corrections

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

March 14, 2018

RONALD J. BIANCHI, Plaintiff,
v.
WASHINGTON STATE DEPARTMENT OF CORRECTIONS, et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION IN PART, REQUESTING SUPPLEMENTAL BRIEFING, AND RENOTING PLAINTIFF'S OBJECTIONS

          BENJAMIN H. SETTLE United States District Judge

         This 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).

         In May 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.

         On May 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. Dkt. 26.

         On 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.

         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. Fed.R.Civ.P. 72(b)(3).

         Bianchi's 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.

         A. Defendant Washington State Department of Corrections

         Bianchi 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.

         As 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 asserted.”).

         Nonetheless, 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.

         Based 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 injunctive relief.

         The 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 ...


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