United States District Court, W.D. Washington, Tacoma
ORDER ON REPORT AND RECOMMENDATION
J. BRYAN, United States District Judge.
MATTER comes before the Court on the Report and
Recommendations of U.S. Magistrate Judge Theresa L. Fricke.
Dkt. 54. The Court has reviewed the Report and
Recommendations, objections, the remaining file and is fully
FACTS AND PROCEDURAL HISTORY
a pro se prisoner, brings this case pursuant to 42
U.S.C. § 1983, asserting that the Defendants violated
his Eighth Amendment right to adequate medical care. Dkts. 6
and 32. He seeks both damages and injunctive relief.
Id. The background facts are in the Report and
Recommendation (Dkt. 54) and are adopted here.
September 2017, several of the institutional Defendants moved
to dismiss his claims against them (Dkt. 21) as did Defendant
Dr. Michael Furst (Dkt. 23). A week later, Plaintiff moved to
amend his complaint to attempt to resolve some of the
deficiencies. Dkt. 25. That same day, Plaintiff also filed a
motion for a temporary restraining order and for a
preliminary injunction seeking an order from the court
requiring that the Defendants provide him adequate medical
care. Dkt. 24.
December 19, 2017, Plaintiff's motion to amend was
granted (Dkt. 31), his Amended Complaint (Dkt. 32) was filed,
and the Reports and Recommendations recommending this Court
grant both motions to dismiss, with prejudice, (Dkts. 33 and
34) were filed. A few days later, on December 22, 2017, a
Report and Recommendation recommending denial of the
Plaintiff's motion for a temporary restraining order and
for a preliminary injunction, based in part on the
recommendations on the motions to dismiss, was filed. Dkt.
35. All the Reports and Recommendations referred to the
original complaint (Dkt. 6).
December 29, 2017, some, but not all, the Defendants filed a
Motion to Dismiss claims asserted against them in the Amended
Complaint. Dkt. 38. On January 9, 2018, the undersigned
declined to adopt the Reports and Recommendations because
they referred to the original complaint and not the amended
complaint. Dkt. 41. The case was re-referred. Id. On
February 23, 2018, Defendant Furst filed a motion to dismiss.
Dkt. 49. (The only Defendants that have not moved to dismiss
the case are Defendants Sheryl Albert and Dr. Steven Hammond.
There is an order for Plaintiff to show cause why these
Defendants should not be dismissed, but Plaintiff has until
May 18, 2018 to respond.)
April 11, 2018, the instant Report and Recommendation was
filed. Dkt. 54. The Plaintiff filed objections (Dkt. 55) and
the Defendants filed a response to the objections (Dkt. 57).
The Report and Recommendation is ripe for decision.
and Recommendation's Recommendations and Plaintiff's
Objections regarding the Motions to Dismiss. The
Report and Recommendation recommends, in part, that the
motion to dismiss by DOC Health Services of Stafford Creek
Corrections Center, DOC Health Services of Monroe Corrections
Center Special Offender Center and the Medical Care Review
Commission (Dkt. 38) be granted because neither a state nor a
state agency is a person under § 1983; likewise, a state
official acting in their official capacity is not a
“person” for purposes of damages claims under
§ 1983. Dkt. 54. The Report and Recommendation also
recommends that the motion to dismiss by individual
Defendants Light and Sinclair (Dkt. 38) be granted because
Plaintiff still fails to allege sufficient facts for relief
against them in his Amended Complaint. Plaintiff does not
object to these recommendations.
Report and Recommendation recommends that Defendant
Casey's motion to dismiss (Dkt. 38) be granted. Plaintiff
objects to dismissal of the claims against Defendant Casey,
arguing that the Report and Recommendation erred in its
interpretation of Defendant Casey's capacity to know of
Plaintiff's substantial risk of harm, that Plaintiff was
harmed when he was returned to his cell, and the Report and
Recommendation's finding that “further neurological
examination results will not be relevant to the issue before
the Court.” Dkt. 55.
Report and Recommendation (Dkt. 54) should be adopted
regarding the motion to dismiss by DOC Health Services of
Stafford Creek Corrections Center, DOC Health Services of
Monroe Corrections Center Special Offender Center and the
Medical Care Review Commission, Light, Sinclair and Casey
(Dkt. 38); it (Dkt. 38) should be granted and the claims
against them dismissed. Plaintiff's objections do not
provide a basis to fail to adopt this portion of the Report
and Recommendation. While Plaintiff objects to the Report and
Recommendation's “interpretation” of
Defendant Casey's required state of mind for liability,
the Report and Recommendation provides the legal standard,
and finds that the facts alleged by Plaintiff, even in the
Amended Complaint, fail to state a claim for relief against
Casey. Plaintiff's arguments, that he was actually harmed
and that the Report and Recommendation erred in stating that
a further neurological examination is not relevant, miss the
mark. The standard is whether Casey was deliberately
indifferent to a serious medical need. For the reasons
provided in the Report and Recommendation, Plaintiff failed
to adequately plead the elements of the claim in the Amended
Complaint, and so Plaintiff's claims against Defendant
Casey should be dismissed.
Report and Recommendation recommends granting Defendant
Furst's motion to dismiss (Dkt. 49) because
Plaintiff's Amended Complaint failed to allege sufficient
facts that Defendant Furst had the requisite state of mind.
Dkt. 54. Plaintiff objects, arguing that he told Dr. Furst
that he thought he was being poisoned, and that Dr.
Furst's defense of not believing him is insufficient
without “doing due diligence.” Dkt. 55.
Plaintiff's Amended Complaint undermines his assertion in
his objections that no due diligence was done - it indicates
that Dr. Furst spoke with Plaintiff, evaluated him, and
determined that there was no medical evidence to support
Plaintiff's claims that he was being poisoned. Dkt. 32.
Plaintiff's desire for more extensive testing is not
adequate to show that Dr. Furst was deliberately indifferent
to Plaintiff's medical needs. While Plaintiff argues in
his objections that Dr. Furst did not consider any other
diagnosis other than that he was delusional, Plaintiff makes
no allegations that plausibly support this theory in the
Amended Complaint (or in his objections). For the reasons
provided in the Report and Recommendation, Plaintiff's
claims against Defendant Furst should be dismissed.
and Recommendation's Recommendations and Plaintiff's
Objections regarding the Motions ...