United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS
TO DISMISS AND PLAINTIFF'S MOTIONS FOR PRELIMINARY
Theresa L. Fricke United States Magistrate Judge
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
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.
MOTIONS TO DISMISS, DKT. 38, 49
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.
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.
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.
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.
report and recommendation addresses both non-moot motions to
Standard of Review
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).
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).
State Agency Defendants
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.
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.
Plaintiff does Not State a Claim for Relief under the
Eighth Amendment against Defendants Casey, Light, or
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).
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.
forth an Eighth Amendment claim for failure to provide
medical treatment, a plaintiff must allege facts that support
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).
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.
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.
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.