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Washington v. Washington Department of Corrections

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

April 18, 2018




         This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. 52), Plaintiff's objections to the R&R (Dkt. 53), Defendants' objections to the R&R (Dkt. 54), and Plaintiff's motion requesting the appointment of counsel and an extension to file a response to Defendants' objections (Dkt. 56).

         Plaintiff brought claims against Defendants under 42 U.S.C. § 1983 for violations of the Eighth and First Amendments as well as state law claims pursuant to RCW 7.70.030 for medical negligence and lack of informed consent. See Dkt. 5. Regarding Plaintiff's medical negligence and Eighth Amendment claims, Plaintiff alleged that Defendants diagnosed him with cirrhosis stemming from hepatitis C virus (“HCV”) when he entered Washington Department of Corrections (“WDOC”) custody in August 2015, yet deliberately delayed any treatment of his condition for nearly two years, until after he developed cancer, before performing any follow-up care or imaging. Id. Regarding his First Amendment claim, Plaintiff alleged that several defendants attempted to discourage him from pursuing grievances regarding his healthcare. Id.

         On February 2, 2018, Judge Fricke entered the R&R. Dkt. 52. The R&R concludes that Plaintiff's claims against Defendants WDOC, Van Ogle Rogers, Gordon, and twenty-nine unnamed “Does” should be dismissed for failure to state a claim. Id. at 30. The R&R also recommends that the Court should grant summary judgment in favor of Defendants Evans and Wright in light of Plaintiff's failure to exhaust administrative remedies in regards to his First Amendment claims against them. Id. Otherwise, the R&R recommends that the Court deny Defendants' motion to dismiss and motion for summary judgment. Id.

         On February 16, 2018, Plaintiff and Defendants objected. Dkts. 53, 54. On February 23, 2018, Plaintiff requested an extension of time to respond to Defendants' objections and moved to appoint counsel. Dkt. 56. On March 1, 2018, Defendants responded to Plaintiff's objections. Dkt. 57. On March 8, 2018, Defendants responded to Plaintiff's motion to appoint counsel. Dkt. 59. The Court has also received notice from the Law Librarian at Stafford Creek Correction Center (“SCCC”), where Plaintiff was incarcerated, informing the Court that Plaintiff was being treated medically outside of the facility and would receive documents filed on or after March 1, 2018 upon his return. Dkts. 58, 60.

         On April 17, 2018, Defendants filed notice that Plaintiff had died on April 4, 2018 in Aberdeen, Grays Harbor County, Washington. Dkt. 61 at 2. Defendants have dispatched a process server to serve notice of Plaintiff's death and this action on Leann Washington, Plaintiff's Sister, who Defendants believe to be Plaintiff's successor and representative. Id. at 2.

         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).

         A. Defendants' Objections

         Defendants have raised numerous objections. First, Defendants object to the R&R's refusal to dismiss all of Plaintiff's federal claims predicated on events occurring prior to November 1, 2016. To support their objection, Defendants cite Woodford v. Ngo, 548 U.S. 81 (2006), to argue that Plaintiff's claims predicated on such events are barred by his failure to file administrative grievances regarding his lack of HCV treatment until November 20, 2016, within twenty days of the alleged misconduct as required under WDOC's Offender Grievance Program. Dkt. 54 at 2-5.

         In Woodford, an inmate filed a grievance regarding his placement in administrative segregation for engaging in inappropriate activity in a prison chapel. Subsequently, the prison began prohibiting him from “special programs” including a number of religious activities. The grievance was filed approximately six months after the prison began excluding the inmate from special programs. The Supreme Court decided that 42 U.S.C. § 1997e(a) demanded the “proper” exhaustion of administrative remedies, including compliance with administrative deadlines and timeliness requirements. Woodford, 548 U.S. at 90. Therefore, the plaintiff's claims were dismissed because he failed to grieve the decision to place him under restriction within the applicable fifteen-day administrative deadline. The claims were dismissed for failure to timely grieve the decision to impose the restriction even though the denial of access to “special programs” was ongoing.

         However, since the Supreme Court rendered its decision in Woodford, the Ninth Circuit has recognized that regardless of the “proper” exhaustion requirement, “when prison officials address the merits of a prisoner's grievance instead of enforcing a procedural bar, the state's interests in administrative exhaustion have been served.” Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016). Accordingly, the Circuit has held that a prisoner adequately exhausts administrative remedies for the purposes of 42 U.S.C. § 1997e(a), “despite failing to comply with a procedural rule[, ] if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.” Id. at 658. Under this rule, the applicable administrative remedies were exhausted in this case. Although Plaintiff did not file a grievance regarding WDOC medical personnel's alleged delay in providing HCV treatment until November 20, 2016, that grievance specifically claimed that “WDOC and Medical Dept. has [sic] delayed me [Direct Acting Antiviral (“DAA”)] treatment for over a year or sience [sic] I entered WDOC Coustody [sic] while knowing of my condition.” Dkt. 40-1 at 52. In response, WDOC rendered decisions on the merits of Plaintiff's grievance at each level of review. See Dkt. 40-1 at 49-68.

         The Court agrees with Defendants' arguments that the R&R appears to improperly apply an equitable tolling rule to Plaintiff's failure to timely file administrative grievances for the actions of certain medical personnel in delaying his treatment. Nonetheless, WDOC addressed Plaintiff's grievance on the merits at each available level of administrative review. Therefore, notwithstanding the untimeliness of Plaintiff's grievance as it relates to delays in DAA treatment since he entered the WDOC, the Court finds that Plaintiff exhausted the applicable administrative remedies in regards to his claims that WDOC acted with deliberate indifference in delaying DAA treatment for his diagnosis of HCV from the time he entered WDOC custody until after he developed cancer.[1]

         Second, Defendants “object” to the R&R's refusal to dismiss Plaintiff's claims against WDOC personnel whose only alleged actions involve investigating or responding to Plaintiff's grievances. Dkt. 54 at 5-11. The Court disagrees with this objection as it pertains to Defendants McTarsney, Dahne, and Caldwell. Defendants failed to raise their present arguments pertaining to each specific defendant in their underlying motion to dismiss; instead, they simply offered the blanket argument that the Defendants were entitled to rely on the opinions of medical professionals. Accordingly, Defendants' present arguments pertaining to these individual defendants are less objections than they are requests for further relief. The Court generally will not dismiss claims based on arguments that are raised for the first time in response to an R&R. This is particularly so where the record on its face suggests that there may be unresolved issues that preclude summary judgment. For instance, while McTarsney was entitled to rely on the opinions of the WDOC's medical professionals in denying Plaintiff's claims, McTarsney twice returned Plaintiff's grievance No. 16622119 with the instruction “[i]f you're going to cite law identify it, case law citations are not necessary as the Offender Grievance Program is not a legal forum. Rewrite, resubmit.” Dkt. 5-1 at 2, 3. She did so even though in his original and first rewritten grievance Plaintiff clearly cited a case and wrote that the denial of DAA treatment constituted “deliberate indifference to my serious medical needs, and or [sic] Melpractice/Gross [sic] Negligence.” Dkt. 5-1 at 2. Defendants have failed to explain why it was appropriate for McTarsney to twice return Plaintiff's grievance and delay a response by requiring him to rewrite it, particularly in light of the allegations of serious and urgent medical needs.

         Similarly, Defendant Dahne is implicated in the delayed response to the level II appeal of Plaintiff's grievance no. 16622119, even if it is unclear what role he personally may have played in the prolonged delay. See Dkt. 5-1 at 7-9. On the present record, it is unclear what role a grievance coordinator plays in the grievance process, and how his or her actions pertain to the timely processing of grievances. It would be inappropriate to require an inmate to plead the specific conduct that an individual defendant took in delaying a grievance without allowing discovery when the applicable grievance records reveal that the process was prolonged and the individual defendant was somehow involved in the delayed grievance process. To the extent Plaintiff claims that Dahne is liable for failing to provide Plaintiff with notice of “time extensions” or documentation regarding previous grievances in violation of WDOC policies, the Court recognizes that these allegations do not state a viable claim. See Dkt. 5-1 at 19. Violations of a grievance procedure do not by themselves give rise to claims under 42 U.S.C. § 1983. See Flick v. Alba, 932 ...

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