United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING IN PART AND DECLINING IN PART REPORT
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable J.
Richard Creatura, United States Magistrate Judge (Dkt. 103),
Defendant Shelli Hudson's (“Hudson”)
objections to the R&R (Dkt. 105), Plaintiff Christopher
Miller's (“Miller) objections to the R&R (Dkt.
109),  and Miller's motion to strike
Hudson's objections to the R&R and her response to
Miller's own objections (Dkt. 115).
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.
main objection focuses on the recommendation that Defendant
Margaret Gilbert (“Gilbert”) be dismissed.
Specifically, Miller argues that Gilbert's participation
in reviewing his level II grievance constitutes sufficient
personal participation to support a finding of liability for
an allegedly unconstitutional denial of medical care.
However, the Court agrees with the R&R that Gilbert's
review provided an adequate response to the allegations in
Miller's grievance. Gilbert assigned an investigator to
Miller's claims and the resulting investigation indicated
that (1) Miller had been seen by medical staff at the time
the restraints were removed, (2) Miller had since cancelled
an appointment for medical care, (3) and no medical kites
could be located wherein Miller sought treatment for injuries
to his wrist and thumb. Dkt. 85 at 2; see also Dkt.
102 at 97. Additionally, Miller had been seen twice by
medical staff before the review of his level I grievance was
completed. Dkt. 85 at 2.
did not allege in his grievance on August 25 that he had
submitted multiple prior medical kites requesting treatment
for his hand. In fact, under the facts and theory described
in Miller's own declaration, those alleged kites were
never properly filed or submitted for the very purpose of
avoiding review by a subsequent investigation or supervisor
like Gilbert. See Dkt. 102 at 21 (“I believe
Hudson threw away or destroyed them, so a doctor or provider
wouldn't see my injuries during an exam, and get Hudson
in trouble for not reporting my injuries originally.”).
Nor is there any evidence suggesting Gilbert was somehow
placed on notice that Hudson or any other member of the
medical staff had allegedly failed to process grievances
properly or take any other action to prevent supervisors from
discovering the extent of Miller's injury.
on the record, Gilbert reasonably believed that Miller was
receiving adequate medical treatment and that any further
necessary medical attention was readily available. There is
no evidence whereby a rational juror could conclude that
Gilbert was deliberately indifferent to Miller's medical
needs by delaying treatment.
Miller objects to the recommended dismissal of his state law
claims against the defendants who have been granted summary
judgment on his federal claims. He notes that this case was
removed from state court and argues that his state law claims
should be remanded rather than dismissed if the Court
declines to exercise supplemental jurisdiction. The Court
agrees that judicial efficiency would favor an order of
remand over dismissal of Miller's state law claims.
However, all of Plaintiff's remaining state law claims
are closely intertwined with his remaining federal claim
against Hudson, as they all revolve around the use of bolt
cutters to remove his hand cuffs and his resulting injuries.
Remanding or dismissing the case partially while proceeding
with the claim against Hudson could lead to inconsistent
results and findings. Accordingly, the Court finds that in
the interests of judicial efficiency, the Court should
continue to exercise its supplemental jurisdiction over
Miller's state law claims and should address those claims
on the merits. Accordingly, the Court will return this matter
to Judge Creatura for consideration of the summary judgment
motions already submitted in regards to Miller's state
objects to the R&R's conclusion that the record
presents genuine disputes of material fact over whether she
was deliberately indifferent to Miller's medical needs.
Hudson's primary argument is that “Plaintiff
presented no admissible evidence to support a claim of
deliberate indifference to a serious medical need by . . .
Hudson.” Dkt. 105 at 4. Specifically, Hudson argues
that (1) the only objective findings during her examination
were a small cut and slight swelling that were properly
treated with ice, (2) nothing in the record supports a claim
that Hudson ignored Miller's requests for medical
treatment, (3) no medical provider has diagnosed an avulsion
fracture, (4) Plaintiff was placed in medical segregation
from August 19 through August 24, (5) medical records show
that he received care from M.L. Furst, M.D. on August 19, 21,
and September 4, but there is not any mention of physical
injuries from the incident, and (6) Miller was seen by
medical professionals on twelve occasions between August 18,
2015 and October 12, 2015.
Plaintiff has submitted evidence in the form of his
declaration that he gave Hudson numerous medical kites
seeking medical attention for his hand that were never
properly filed. Dkt. 102 at 6. While this is scant evidence
to support his claim, his statements are feasible when
considered with other evidence in the record. For instance,
it is at least somewhat suspicious or incongruent that Miller
filed a grievance seeking medical attention and complaining
that he received inadequate care for his hand as soon as he
was moved out of medical segregation, and yet the records
from when Miller was in medical segregation lack any
indication that Miller was complaining about his hand.
See Dkt. 102 at 89-90. While Hudson asserts that the
only time she dealt with Miller was when he was initially
brought to the outpatient infirmary and the handcuffs were
removed, she acknowledges that she may have dealt with him in
segregation when “possibly dispensing medication that
had been ordered by medical providers. Dkt. 86 at 3. This is
not necessarily inconsistent with Miller's statements
that he gave medical kites to Hudson when she came to
administer his medications. Dkt. 102 at 21.
it should be noted that while Miller was placed in medical
segregation and received some treatment, the record plainly
indicates that this was done in light of mental health and
safety concerns and not to treat his hand. Dr. Furst-a
psychiatrist-did not note any concerns pertaining to
Miller's hand on the record when providing mental health
treatment, but this does not establish that Miller's hand
was not in fact injured. Furthermore, it is not inconsistent
with Miller's testimony that when he mentioned his hand
to Dr. Furst, Dr. Furst explained that his focus dealt
exclusively with mental health and that Miller would need to
talk with his regular provider for physical treatment. Dkt.
102 at 20.
the Court notes that there is at least some evidence that
Miller's hand injury was sufficiently severe and painful
that a deliberate delay of medical attention and relief would
constitute an unnecessary and wanton infliction of pain.
Plaintiff's injury was sufficient enough that he received
an immobilizing splint months after his hand was injured.
Although the x-ray he eventually received 3 months after the
injury does not confirm that his hand was broken by the
removal of his handcuffs with bolt cutters, they do not rule
out that possibility. See Dkt. 84 at 27
(“There is an old healed fracture at fifth metacarpal
base, ” the location of Miller's injury).
Additionally, defendants have failed to point to any evidence
contradicting Miller's description that his hand was
severely swollen and remained so for days after the incident.
Moreover, it plainly shown from the medical records that
Miller does indeed suffer from painful conditions in his
hand. Whether or not Miller lacks sufficient evidence to
establish that his hand was broken or that his diagnosed hand
injuries were actually caused by the cutting of his
handcuffs, he has submitted sufficient evidence for a
rational juror to believe that he suffered from sufficiently
severe and apparent pain that an intentional delay of
treatment, such as throwing away medical kites and ignoring
medical requests, would constitute deliberate indifference to
Millers medical and an unnecessary and wanton infliction of
final note, the Court recognizes the inherent difficulty in
this case. The defendants point to an absence of medical
records suggesting a severe hand injury in order support
their defense that they were not deliberately indifferent to
complaints of pain from a serious injury, yet Miller's
claims are predicated on a theory that medical staff was
deliberately indifferent to his medical needs by refusing to
process the very medical kites that would have created a
record of his painful injury. Ultimately, the Court finds