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Reed v. Department of Corrections

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

April 9, 2018

CHARLES V. REED, Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, et al., Defendants.

          ORDER DECLINING REPORT AND RECOMMENDATION, RETURNING FOR FURTHER PROCEEDINGS, AND APPOINTING COUNSEL

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 57), and Plaintiff's objections to the R&R (Dkt. 60).

         On September 25, 2017, Defendants moved for summary judgment. Dkt. 40. On December 21, 2017, Plaintiff responded. Dkt. 53. On December 22, 2017, Defendants replied. Dkt. 54. On January 30, 2018, Judge Christel entered the R&R wherein he recommended granting Defendants' motion for summary judgment on the basis that there were no genuine disputes of material fact and Plaintiff had failed to show that Defendants violated his constitutional rights. Dkt. 57. On February 26, 2018, Plaintiff filed objections to the R&R. Dkt. 60. On March 15, 2018, Defendants responded to Plaintiff's 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. Fed.R.Civ.P. 72(b)(3).

         Plaintiff raises the following objections to the R&R: (1) Plaintiff objects that he did not receive Defendants' reply brief until December 28, 2017, although it was due December 22, 2017, Dkt. 60 at 2; (2) Plaintiff objects that the R&R should give deference to his pleadings over those of the Defendants because he is acting pro se, id.; (3) Plaintiff objects to the R&R's purported finding that Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011), is “the only court ruling on DOCs HCV Protocol, ” id. at 5, and (4) Plaintiff objects to the R&R's finding that there are no genuine disputes of material fact, id. at 3. Plaintiff also reiterates his underlying argument in opposing summary judgment that Defendants knew he suffered from HCV yet deliberately delayed effective treatment for years until his liver damage had escalated from moderate fibrosis in 2012 (with a F-2 METAVIR score) to cirrhosis in 2017 (with a F-4 METAVIR score).[1] See Dkt. 60. He argues that as a result of this delay, he was caused to suffer “unnecessary wanton of [sic] pain, associate with excruciating headaches, Barretts Esophagitis [sic], muscle spasms, skin conditions, 80% loss of energy, fatigue, dizziness, functional limitations, mood swings, forgetfulness affecting ability to concentrate . . . ” and the risk of other severe health complications.

         The Court finds that Plaintiff's first three objections do not provide a legitimate basis for declining the R&R. Plaintiff's objection regarding the timeliness of Defendants' reply brief lacks merit, as the brief was timely filed with the Court. Although Plaintiff did not receive the brief until six days later, this did not deprive him of the opportunity to file a surreply. Parties are not permitted to file a surreply unless they seek to strike material from a reply, and Plaintiff has not articulated how any material was improperly presented in Defendants' reply or supporting materials. Moreover, the report and recommendation was not issued until over 30 days later, meaning that Plaintiff had more than adequate time to file a surreply if he indeed thought it necessary.

         Plaintiff's objection regarding the purported deference extended to Defendants' pleadings also lacks merit. While Plaintiff's argument is vague, it appears that he objects to the R&R's failure to give an added measure of deference to his pleadings over the arguments of Defendants. This argument is predicated on looser pleading standards for pro se complaints, but the motion before the Court is not a motion to dismiss. Instead, as a motion for summary judgment, the standards cited by Plaintiff are inapplicable-for instance, courts are not required to give a plaintiff's statements the benefit of the doubt when the allegations are not supported by the record and no reasonable juror could believe the allegations in light of controverting evidence. Besides, Plaintiff has failed to specify what assertions of the Defendants were purportedly afforded undue deference.

         Additionally, the Court rejects Plaintiff's argument regarding the R&R's characterization of Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011). Plaintiff argues that the R&R described Roe v. Elyea as “the only court ruling on DOCs HCV Protocol.” Dkt. 60 at 5. In fact, the R&R described the Seventh Circuit in Roe v. Elyea as the “only court to have addressed the issue of prioritizing the sickest patients in treatment policies.” Dkt. 57 at 5. Regardless, there have been other unpublished cases to indirectly address the validity of prioritizing limited resources in HCV treatment for the sickest inmates. Abu-Jamal v. Wetzel, 3:16-CV-2000, 2017 WL 34700, at *15 (M.D. Pa. Jan. 3, 2017) (“Simply prioritizing treatment so that those in the greatest need are treated first likely would not constitute a constitutional violation.”). But the mere fact that other cases may have addressed this issue (and came to the same result) is not a basis for declining the R&R. The Court does not need to cite every possible relevant case in its orders so long as it applies the appropriate legal standards to arrive at the proper result.

         Nonetheless, the Court agrees with Plaintiff's argument that Defendants have failed to carry their initial burden in establishing the absence of a genuine dispute of material fact. The R&R's analysis is predicated on a theory that the Department of Correction's (“DOC”) medical care policy is constitutional because it “balances the effective treatment of prisoners with the financial concerns of the DOC.” Dkt. 57 at 5. However, the Ninth Circuit has consistently “maintained that ‘faced with a conflict between financial concerns and preventable human suffering, the court has little difficulty concluding that the balance of hardships tips decidedly in plaintiffs' favor.” Harris v. Bd. of Supervisors, Los Angeles Cty., 366 F.3d 754, 766 (9th Cir. 2004) (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)) (alterations omitted). This is not to say that the R&R made an inappropriate statement of the law in regards to Plaintiff's § 1983 claims for damages. If prison officials do all that they could to deliver adequate HCV treatment in light of real financial limitations, they may not be liable for any damages that may have arisen from delays in treating Plaintiff's HCV. See LaMarca v. Turner, 995 F.2d 1526, 1536-39, 1542 (11th Cir. 1993) (prison official wouldn't be personally liable if he did everything he could, but prisoner could get prospective relief against official in his official capacity). But this is only because an official's “constraints” and “competing tensions” are “important to the resolution of whether the officials had the requisite subjective intent” to constitute deliberate indifference. Clement v. Gomez, 298 F.3d 898, 905 n.4 (9th Cir. 2002). The standard of deliberate indifference still demands a careful analysis of an inmate's medical needs and the concrete constraints that actually prevented effective treatment.

         In their motion for summary judgment, Defendants have failed to establish that Plaintiff was denied effective treatment because it was not possible to provide it. Defendants merely cite to the expensive nature of the procedure while generally stating that “there are a limited number of patients who can be treated for HCV at any one time.” While these statements are believable, Defendants fail to provide evidence actually establishing that, for the duration of the time they were aware Plaintiff had F-2 fibrosis, there were insufficient resources to provide Plaintiff with treatment due to higher priority inmates with more advanced liver damage or other illnesses. Instead, the record suggests that Plaintiff was denied effective treatment because his liver biopsy revealed that his fibrosis score was F-2 rather than F-3 or F-4. See Dkt. 42 at 3 (“His fibrosis score was F2. Based on his fibrosis score at that time [June 11, 2014], he did not qualify for treatment with HCV medications under DOC protocols . . . .”). The Hepatitis C Treatment Care Review Committee's (“CRC”) decision suggests that Plaintiff was categorically denied effective treatment because his F-2 score was not sufficiently severe to warrant treatment. Specifically, the CRC stated:

Pt does not meet criteria for tx per protocol. . . . PMHx of arthritis, Barrett's esophagus (being monitored) and migraines. He just had a liver biopsy last year. His APRI is relatively low and has not significantly changed over the time period since biopsy to suspect that there has been unusually rapid progression of his fibrosis. . . . The patient should be reassured that he only has F2 fibrosis after ~35 years of the disease. Given he is 61 yo, there is a high likelihood he will die of an alternative process. At this point in time, he does not meet DOC criteria for Hep C treatment given his low-moderate fibrosis and no co-morbidity putting him in a high risk category.

Dkt. 42-1 at 67. In other words, notwithstanding that Defendants knew Plaintiff had been suffering symptoms for years and knew both the cause of the symptoms and the course of treatment required to effectively treat HCV, Defendants intentionally delayed such treatment until Plaintiffs liver damage grew so severe that treatment could no longer be delayed without risk of dangerous complications and death.

         This is further reflected by the fact that DOC's implementation of policy 670.000 categorically excludes providing treatment to inmates suffering from HCV at the F-2 stage of liver scarring. The DOC's Hepatitis C Treatment Eligibility Evaluation provides the unequivocal instruction that treatment will ...


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