United States District Court, W.D. Washington, Tacoma
Charles V. Reed, Plaintiff,
Washington State Department of Corrections et al., Defendants.
W. Christel, United States Magistrate Judge
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.
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.
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.
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.
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 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.
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.
Second Motion for Summary Judgment (Dkt. 108)
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
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
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 ...