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
Recommendation of U.S. Magistrate Judge Theresa L. Fricke.
Dkt. 59. The Court has reviewed the Report and
Recommendation, objections, and the remaining file.
BACKGROUND 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 when they
failed to allow him to see a neurologist. Dkts. 6 and 32. He
seeks both damages and injunctive relief. Id.
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.
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.
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.
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.
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).
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.)
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.
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
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 ...