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Bistryski v. Department of Health Services of Stafford Creek Corrections Center

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

April 11, 2018

CHRISTOPHER ANDREW BISTRYSKI, Plaintiff,
v.
DEPARTMENT OF HEALTH SERVICES OF STAFFORD CREEK CORRECTIONS CENTER, et al., Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S MOTIONS FOR PRELIMINARY INJUNCTIVE RELIEF

          Theresa L. Fricke United States Magistrate Judge

         This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff Christopher Andrew Bistryski is incarcerated at the Monroe Correctional Complex-Special Offender Unit (MCC-SOU). Dkt. 32 at 7, ¶ 29. He sues multiple defendants for damages and injunctive relief, asserting that defendants have violated his right to adequate medical care under the Eighth Amendment. Dkt. 32, pp. 15-16. He is proceeding with this action pro se and in forma pauperis.

         This Report and Recommendation pertains to two motions to dismiss under Federal Rule of Civil Procedure (FRCP) 12(b)(6), Dkt. 38, 49, and two motions by plaintiff for preliminary injunctive relief, Dkt. 24, 44. For the reasons set forth below, the undersigned recommends that the Court grant the motions to dismiss with prejudice and deny the motions for preliminary injunctive relief.

         I. MOTIONS TO DISMISS, DKT. 38, 49

         A. Background

         The state agency defendants previously filed a motion to dismiss. Dkt. 21. The undersigned recommended that the Court grant that motion because those defendants were not “persons” for purposes of a suit under 42 U.S.C. § 1983. Dkt. 34.

         Before the Court ruled on that report and recommendation, an overlapping set of defendants filed another motion to dismiss. Dkt. 38. Those defendants include the Washington State Department of Corrections (DOC) Health Services of Monroe Corrections Center Special Offender Center, DOC Health Services of Stafford Creek Corrections Center, and the Medical Care Review Committee (collectively “state agency defendants”), along with individual defendants Charles Casey, Scott Light, and Stephen Sinclair. Id.

         The Court declined to adopt the report and recommendation, Dkt. 34, because the report and recommendation did not address plaintiff's Amended Complaint. Dkt. 41; see Dkt. 32 (First Amended Complaint). The Court accordingly struck the state agency defendants' prior motion to dismiss, Dkt. 21, and re-referred the case for the undersigned to consider the defendants' new motion to dismiss, Dkt. 38, in light of the Amended Complaint. Dkt. 41. Plaintiff has responded to the new motion to dismiss. Dkt. 43.

         Separately defendant Michael Furst, M.D., filed a separate motion to dismiss under FRCP 12(b)(6). Dkt. 23. The undersigned recommended that the Court grant that motion on the basis that plaintiff failed to allege facts from which the Court could infer that Dr. Furst was deliberately indifferent to his serious medical need. Dkt. 33. The Court declined to adopt that report and recommendation, as well, because the report and recommendation did not address plaintiff's Amended Complaint. Dkt. 41. The Court struck as moot Furst's prior motion to dismiss. Id. Defendant Furst has since filed a second motion to dismiss. Dkt. 49. Plaintiff has responded to that motion, and the defendant filed a reply. Dkt. 52, 53.

         This report and recommendation addresses both non-moot motions to dismiss.

         B. Standard of Review

         A pro se complaint must be liberally construed. Mangiaracina v. Penzone, 849 F.3d 1191, 1195 (9th Cir. 2017). To survive a motion to dismiss under FRCP 12(b)(6), a plaintiff must state “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is considered facially plausible when the facts allow the court to reasonably infer that the defendant is liable under the law for the acts or omissions that are alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing (1) the conduct the plaintiff complains of was committed by a person acting under the color of state law; and (2) the conduct deprived the plaintiff of a federal constitutional or statutory right. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).

         C. State Agency Defendants

         Although a plaintiff can maintain a § 1983 claim against a person acting under color of state law, see Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986), neither a state, nor a state agency that is an arm of the state, is a “person” for purposes of § 1983. See Howlett v. Rose, 496 U.S. 356, 365 (1990). This rationale applies to state agencies such as the DOC. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989); Sable Commc'ns of California Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 191 (9th Cir. 1989). Similarly, regarding requests for damages, “officials acting in their official capacities are [not] ‘persons' under § 1983.” Will, 491 U.S. at 71.

         Plaintiff does not respond to defendants' argument that the state agency are not “persons” under § 1983, and that plaintiff's § 1983 claims against them for damages therefore must be dismissed. Dkt. 43; see Dkt. 34, 38. Defendants' argument is persuasive and supported by case law. See Will, 491 U.S. at 70 (state agency is not “person” and thus not liable under § 1983). The new allegations in the Amended Complaint-in particular, that DOC and the CRC “have a long history of” denying necessary medical care, as shown by an attached press release-do not change this principle of § 1983 law. See Dkt. 32, pp. 13, 207-09. Therefore, the Court should grant defendants' motion to dismiss regarding DOC Health Services of Stafford Creek Corrections Center, DOC Health Services of Monroe Corrections Center Special Offender Center, and the Medical Care Review Committee.

         D. Individual Defendants

         1. Plaintiff does Not State a Claim for Relief under the Eighth Amendment against Defendants Casey, Light, or Sinclair.

         To show that a defendant's conduct deprived the plaintiff of a federal constitutional or statutory right as required under § 1983, the plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). The plaintiff must allege that a specific injury resulted from the conduct of a particular defendant and that an affirmative link existed between the injury and that defendant's conduct. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

         Plaintiff asserts that defendants Casey, Light, and Sinclair deprived him of his Eighth Amendment right to adequate medical care. He also asserts that Casey failed to protect him from serious harm, also in violation of the Eighth Amendment. Plaintiff has not adequately pleaded either claim.

         To set forth an Eighth Amendment claim for failure to provide medical treatment, a plaintiff must allege facts that support two elements.

         First, the plaintiff must show a serious medical need, meaning the defendant's failure to treat the plaintiff's condition could cause “further significant injury or the unnecessary and wanton infliction of pain.” Lemire v. California Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1081 (9th Cir. 2013).

         Second, the plaintiff must show that the defendant's response to the need was deliberately indifferent. Lemire, 726 F.3d at 1082. This requires (a) a purposeful act or failure to respond to the plaintiff's pain or possible medical need, and (b) harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The defendant must know of and disregard an excessive risk to the plaintiff's health or safety. The defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Accordingly, mere indifference, negligence, or medical malpractice will not support a deliberate indifference claim. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980). A mere difference of opinion between the prisoner and prison medical authorities regarding treatment does not constitute deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Rather, the defendant must have chosen a course that was “medically unacceptable under the circumstances” and done so in conscious disregard of an excessive risk to the plaintiff's health. Id.

         Here, plaintiff alleges the following facts in his Amended Complaint: Around September 2014, he began experiencing “neurological disturbances such as inability to focus, mental fatigue, short-term memory loss, general mental fogginess, and strange speech and cognition errors.” Dkt. 32, p. 4. These symptoms “came over him in waves” that “would leave behind permanent damage, ” including difficulty studying, short-term memory problems, “lingering linguistic and logical difficulties, ” “lingering fatigue, slowness, and fogginess, ” and changes to his personality. Id. Each experience causes plaintiff “progressively more intense mental distress and suffering.” Dkt. 32, p. 5.

         Plaintiff alleges that he suspected he was suffering from a condition caused by a neurological illness and/or exposure to toxins. Id. He told defendant Scott Light, PAC, about these symptoms on June 22, 2015. Dkt. 32, p. 6. He told Mr. Light and other staff that he was afraid to return to his unit because he feared further exposure to whatever was causing his symptoms. Id. Prison staff sent him to a “suicide watch” cell, where he spent about a week. Id. Prison staff released Mr. Bistryski back to his unit on June 30, 2015. Dkt. 32, p. 7. Three days later, in an effort to be moved away from what he suspected to be causing his symptoms, plaintiff made “several superficial cuts on his left wrist.” Id. His symptoms resumed almost a year later, in June 2016, after he had moved to Monroe Corrections Center. Dkt. 32, p. 8.

         a. ...


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