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Reed v. Washington State Department of Corrections

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

May 8, 2019

Charles V. Reed, Plaintiff,
v.
Washington State Department of Corrections et al., Defendants.

          ORDER

          David W. Christel, United States Magistrate Judge

         The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Plaintiff Charles V. Reed, proceeding in forma pauperis, initiated this civil rights action on December 2, 2016. Dkt. 1, 6. Presently pending before the Court is Defendants' Second Motion for Summary Judgment (“Second Motion for Summary Judgment”) (Dkt. 108) and Defendant's Motion for Protective Order (“Motion for Protective Order”) (Dkt. 113). Plaintiff responded, requesting a continuance of the Second Motion for Summary Judgment until further discovery can be completed, Dkt. 115, and opposing the Motion for Protective Order on the basis that Plaintiff's discovery requests are relevant and proportional to the needs to the case, Dkt. 118.

         After a review of the Motions and the relevant record, Plaintiff's request for a continuance is granted (Dkt. 115), and the Second Motion for Summary Judgment (Dkt. 108) is denied without prejudice as moot. The Motion for Protective Order (Dkt. 113) is denied without prejudice.

         BACKGROUND

         In the Second Amended Complaint, Plaintiff alleges his constitutional rights were violated when Defendants denied him treatment for his Hepatitis C. Dkt. 96 at 1. Plaintiff alleges Defendants knew of his serious medical need and failed to provide available treatment, instead allowing his Hepatitis C to progress into a more serious condition. Dkt. 96 at 1.

         Plaintiff initially filed this action on December 2, 2016. Dkt. 1. On September 25, 2017, Defendants filed the First Motion for Summary Judgment. Dkt. 40. The undersigned recommended granting the First Motion for Summary Judgment on the merits but declined to make a recommendation as to whether Defendants were entitled to qualified immunity. Dkt. 57. District Judge Benjamin H. Settle declined to adopt the Report and Recommendation and re-referred the case to the undersigned for further proceedings. Dkt. 62. Judge Settle also appointed pro bono counsel for Plaintiff. Id. The undersigned directed the parties to submit supplemental briefing on the question of qualified immunity. Dkt. 65. Defendants filed their supplemental brief, arguing they were entitled to qualified immunity. Dkts. 68-71. Through counsel, Plaintiff filed a Motion for Leave to File Second Amended Complaint (“Motion to Amend”), Dkt. 74, and a Motion to Amend Scheduling Order to Allow for Limited Discovery (“Motion for Limited Discovery”), Dkt. 75. In his supplemental brief, Plaintiff sought additional time to conduct discovery before summary judgment. Dkt. 76. Defendants opposed both Motions, arguing the Court should make a determination as to qualified immunity before granting leave for Plaintiff to amend his complaint or reopening discovery. Dkts. 81, 82.

         On August 9, 2018, the undersigned entered a second Report and Recommendation, recommending Defendants' First Motion for Summary Judgment be granted as to qualified immunity. Dkt. 87. Judge Settle adopted the recommendation in part, dismissing Plaintiff's claims regarding the promulgation of the Department of Corrections (“DOC”) protocol regarding treatment of Hepatitis C. Dkt. 90. Judge Settle declined to adopt the Report and Recommendation as to Defendants' entitlement qualified immunity regarding their alleged individual deliberate indifference and re-referred the First Motion for Summary Judgment to the undersigned. Id.

         The undersigned then granted the Motion to Amend, directing Plaintiff to file a second amended complaint, and granted the Motion for Limited Discovery. Dkt. 94. The undersigned recommended the First Motion for Summary Judgment be denied as moot, based on the filing of a second amended complaint, but allowed Defendants to re-file a dispositive motion based on the allegations contained in the second amended complaint, which Judge Settled adopted. Dkts. 95, 101. On January 25, 2019, Plaintiff filed his Second Amended Complaint. Dkt. 96.

         On February 8, 2019, Defendants filed an Answer to the Second Amended Complaint. Dkt. 100. On February 21, 2019, the parties entered a discovery plan. Dkt. 102. Discovery is to be completed by August 22, 2019 and dispositive motions are due on or before September 23, 2019. Dkts. 102, 103. One month later, on March 20, 2019, Defendants filed the Second Motion for Summary Judgment. Dkt. 108. On April 9, 2019, Defendants filed the Motion for Protective Order. Dkt. 113.

         DISCUSSION

         I. Second Motion for Summary Judgment (Dkt. 108)

         In the Second Motion for Summary Judgment, Defendants move for summary judgment on the issue of qualified immunity. Dkt. 108. Defendants argue Plaintiff fails to show he suffered a deprivation of a constitutional or statutory right, and he fails to show the right allegedly deprived was clearly established at the time of the alleged misconduct. Dkt. 108 at 2.

         In opposition, Plaintiff asserts the Second Motion for Summary Judgment is premature and should be denied or continued while discovery takes place. Dkt. 115 at 1-3. Plaintiff states he served interrogatories and requests for production on Defendants. Dkt. 116 at ¶ 10. In response to Plaintiff's discovery requests, Defendants did not produce any documents, objected to every discovery request, and filed the Motion for Protective Order. Id.; Dkt. 113. Plaintiff states he has not taken any depositions. Dkt. 116 at ¶ 11. As a result of the lack of discovery, Plaintiff asserts nothing has changed since the Court's prior ruling and Defendants have again filed another motion for summary judgment based on qualified immunity. Dkt. 115 at 4.

         Plaintiff submits the affidavit of counsel, Danny Kelly-Stallings, which identifies the relevant information sought. See Dkt. 116. In the declaration, Plaintiff's counsel argues he needs further discovery to determine: (1) whether Defendants knew of and disregarding risks to Plaintiff's health; (2) the extent of Plaintiff's extrahepatic symptoms; and (3) why Plaintiff's condition was not monitored. Dkt. 116. Plaintiff's counsel states Plaintiff has not conducted any discovery ...


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