United States District Court, W.D. Washington, Tacoma
CHARLES V. REED, Plaintiff,
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.
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).
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
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.
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). 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.
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.
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.
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.
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
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.
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 ...