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Bistryski v. Doc Health Services of Stafford Creek Corrections Center

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

July 10, 2018

CHRISTOPHER BISTRYSKI, Plaintiff,
v.
DOC HEALTH SERVICES OF STAFFORD CREEK CORRECTIONS CENTER, DOC HEALTH SERVICES OF MONROE CORRECTIONAL COMPLEX - SPECIAL OFFENDERS CENTER, SCOTT LIGHT, DR. MICHAEL FURST, CHARLES Y, SHERYL ALBERT, MEDICAL CARE REVIEW COMMITTEE, DR. G. STEVEN HAMMOND, Chief Medical Officer, STEVEN SINCLAIR, Secretary of Washington DOC, individually and in their official capacities, Defendants.

          ORDER ON REPORT AND RECOMMENDATION

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on the Report and Recommendation of U.S. Magistrate Judge Theresa L. Fricke. Dkt. 59. The Court has reviewed the Report and Recommendation, objections, and the remaining file.

         I. BACKGROUND FACTS AND PROCEDURAL HISTORY

         Plaintiff, 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 when they failed to allow him to see a neurologist. Dkts. 6 and 32. He seeks both damages and injunctive relief. Id.

         On April 11, 2018, Report and Recommendation was filed. Dkt. 54. It recommended granting motions to dismiss made by some of the defendants in this case; Defendants Sheryl Albert and Steven Hammond did not file motions to dismiss, but instead answered the Amended Complaint. Dkt. 54. The background facts are in the April 11, 2018 Report and Recommendation (Dkt. 54) and are adopted here.

         On April 18, 2018, the Magistrate Judge assigned to this case issued an order requiring Plaintiff, by May 18, 2018, to show cause why the claims asserted against Defendants Albert and Hammond should not be dismissed for failure to state a claim. Dkt. 56. The May 18, 2018 Order to Show Cause notes that Plaintiff's Amended Complaint fails to state a claim upon which relief can be granted as to Defendant Albert because it does not allege that she was subjectively aware of a substantial risk of harm to Plaintiff. Id. It also provides that Plaintiff's Amended Complaint does not adequately allege that Defendant Hammond personally participated in the violation of Plaintiff's constitutional or statutory rights. Id.

         On May 11, 2018, the Court adopted the Report and Recommendation (Dkt. 54), dismissed all claims against all defendants, except the claims asserted against Defendants Albert and Hammond. Dkt. 58. The case was re-referred to the Magistrate Judge. Dkt. 58.

         On June 6, 2018, the instant Report and Recommendation was filed, recommending that the claims asserted against Defendants Albert and Hammond be dismissed because Plaintiff failed to respond to the April 18, 2018 order to show cause. Dkt. 59. It refers to the notation that Plaintiff's Amended Complaint did not properly plead facts to support Defendant Albert's state of mind or that Defendant Hammond personally participated in Plaintiff's deprivation.

         On June 20, 2018, Plaintiff filed a pleading entitled “Motion for Reconsideration, ” but then states that he intends the pleading to be objections to the Report and Recommendation. Dkt. 60. Further, Plaintiff does not cite any law related to a motion for reconsideration. Accordingly, this pleading should be construed as objections to the Report and Recommendation (Dkt. 59).

         In these objections, Plaintiff asserts that he thought he electronically filed a response to the order to show cause. Dkt. 60. Plaintiff then attaches over 20 pages of the pleadings he alleges he thought he filed electronically in response to the order to show cause. Dkt. 60-1. (The Court's electronic filing system does not have a record of this alleged attempt.)

         Plaintiff further states in these objections that he intended to move to amend his complaint after some of his discovery requests were answered, further cognitive testing was conducted, and his family paid privately to have a neurologist evaluate him. Dkt. 60-1, at 8.

         Plaintiff then makes various allegations against Defendants Albert and Hammond. Dkt. 60-1. As to Defendant Albert, Plaintiff states that he is not bringing suit against her based on their initial interactions. Dkt. 60-1, at 9. He maintains that after he had objective tests, however, she was aware of a significant risk of harm to Plaintiff and deliberately disregarded it. Dkt. 60-1, at 9-10. He points to an attachment to his Amended Complaint - a September 3, 2016 full scale IQ test and assessment by Margarita Ashirova, Psy.D., who noted, in particular that “the results of the intelligence assessment indeed appear to show decline in at least two areas: processing speed and working memory compared to premorbid functioning. Further assessments are recommended in the future to identify the nature of this decline.” Dkt. 60-1, at 9 and Dkt. 32, at 139-145. Plaintiff argues that when Defendant Albert denied his request to see a neurologist after this assessment, she demonstrated the requisite deliberate indifference state of mind. Dkt. 60-1, at 11. According to Plaintiff, Defendant Albert presented his request to see a neurologist to the medical care review committee (“CRC”) who denied his request. Id. Plaintiff maintains that Defendant Albert included irrelevant information (that Plaintiff believed he was being poisoned and that he was delusional) in the March 22, 2017 report to the CRC. Id. Plaintiff attached her March 22, 2017 report to his Amended Complaint. Dkt. 32, at 178. It provided:

35 YOM who has current complaints of a serious decline in cognitive function. He states he has a difficult time remembering things and has concerns that he has been poisoned or has a brain tumor. He thinks someone is poisoning his food and he will only eat packaged food. He is requesting a neurology consult. He had a MRI approved to rule out a demyelinating disease which was normal. His weight is 131 lb and stable. BMI 20. Exam: CN II-XII grossly intact. No. neurological deficits, I did discuss offender paid healthcare with him. MRI approved through psych. He has been eating packaged foods the last 6 months. Little bit of cognitive slowing but not enough to worry about per psychologist (unsure of what type of test was used to determine this, more like an IQ test). He is certain someone is poisoning him. Per CMO, on dashboard has delusional disorder. Continue clinical monitoring. The committee discussed the intervention proposed and determined the intervention DID NOT meet medical necessity.

         Plaintiff argues that “[s]he made a presentation loaded with irrelevant material she knew would undermine [his request], which is the same thing as sabotaging Plaintiff's attempt to request care.” Dkt. 60-1, at 13. He further argues that he has letters from “two separate neurological clinics stating that his symptoms are severe enough to warrant evaluation by a ...


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