United States District Court, W.D. Washington, Tacoma
FOR: June 28, 2019.
REPORT AND RECOMMENDATION
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
District Court has referred this 42 U.S.C. § 1983 civil
rights action to United States Magistrate Judge J. Richard
Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B),
and local Magistrate Judge Rules MJR1, MJR3 and MJR4. This
matter is before the Court on defendant Ellen M.
Sundstrom's motion for summary judgment. See
brings claims of medical malpractice, violation of Title II
of the Americans with Disabilities Act (the
“ADA”) and the Rehabilitation Act (the
“RA”), and cruel and unusual punishment against
the State of Washington and medical personnel at the
Washington Corrections Center, including defendant Sundstrom,
who was a treating nurse practitioner. Defendant Sundstrom
seeks summary judgment of plaintiff's claims against her.
plaintiff asserts inadequate treatment rather than denial of
access, his ADA and RA claims are not cognizable. Because
plaintiff's claims amount to essentially, an assertion of
misdiagnosis and medical negligence rather than conscious
disregard of his serious medical needs, his Eighth Amendment
claim fails as a matter of law. And because plaintiff fails
to come forward with medical expert evidence to support
essential elements of his medical malpractice claim, summary
judgment of this claim is appropriate. Thus, the undersigned
recommends that defendant Sundstrom's motion for summary
judgment be granted and that plaintiff's claims against
defendant Sundstrom be dismissed with prejudice.
who proceeds pro se and in forma pauperis
(Dkt. 8), initiated this matter under § 1983 in June
2018. See Dkt. 1. Plaintiff alleges that he suffers
from severe PTSD caused by combat experience, resulting in
the Department of Veterans Affairs finding that he was
“100% disabled[.]” Dkt. 9, at 5. He alleges that
his PTSD causes “high anxiety with panic attacks that
result in a high blood pressure” and that being around
crowds triggers his panic attacks, which culminate in
plaintiff losing consciousness. Dkt. 9, at 6-7.
brings claims against Washington State and seven individuals
working with the Washington Corrections Center Shelton
Reception Medical Providers team, including defendant
Sundstrom. See Dkt. 9, at 2-5. He alleges that on
June 17, 2016, he was transferred to WCC where-despite his
request for isolation because of his mental health
condition-he was placed in the general population and that
this resulted in him suffering a series of panic attacks and
resulting head injuries. See Dkt. 9, at 8-10.
defendant Sundstrom's actions, plaintiff alleges that
after he suffered a panic attack when he was placed in
general population on June 17, defendant Sundstrom and
defendant J. Palmer P.A.-C, a medical associate, determined
that plaintiff should remain in the infirmary until June 21
and requested a mental health assessment. See Dkt.
9, at 11. Plaintiff was then returned to the general
population. See Dkts. 9, at 11; 9-2, at 13-14.
alleges that he then suffered panic attacks on June 21 and
22. See Dkt. 9, at 13, 17. He asserts that he fell
unconscious on June 22 and suffered a head injury, but that
defendants Palmer, Sundstrom, and Tilahun Abraha, a doctor,
warned him that medical emergencies were for life-threatening
situations only and determined that plaintiff was
“acting out PTSD symptoms.” Dkt. 9, at 17.
Plaintiff alleges that he suffered subsequent panic attacks
on several occasions before being removed from the general
population but does not allege any other particular facts
regarding defendant Sundstrom's involvement. See
Dkt. 9, at 18-23.
basis of these facts, plaintiff brings claims against
defendant Sundstrom in her official and individual capacities
for medical malpractice, violation of the Americans with
Disabilities Act and Rehabilitation Act, and cruel and
unusual punishment. See Dkt. 9, at 3.
the motion of the defendants other than defendant Sundstrom,
the District Court dismissed the claims brought against the
other defendants for declaratory or injunctive relief and
under the ADA and RA. See Dkts. 37, at 19; 40. The
District Court also dismissed all claims against defendant
Washington State and most of the claims for Eighth Amendment
violations and medical malpractice. See Dkts. 37, at
Sundstrom has now moved for summary judgment on all the
claims brought against her and provided notice to plaintiff
of her dispositive motion pursuant to Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998). See
Dkts. 34, 36. Defendant Sundstrom does not dispute that she
evaluated plaintiff on June 17 and 22, 2016. See
Dkt. 34, at 3. However, she asserts that there is no genuine
issue of material fact that her actions on these occasions
failed to amount to cruel and unusual punishment, violations
of the ADA and RA, or medical malpractice. See Dkt.
34. This Court agrees.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “In ruling on a motion for summary
judgment, ‘[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
[the nonmovant's] favor.'” Moldex-Metric,
Inc. v. McKeon Prods., Inc., 891 F.3d 878, 881 (9th Cir.
2018) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)). Further, “‘courts should
construe liberally motion papers and pleadings filed by
pro se inmates and should avoid applying summary
judgment rules strictly.'” Soto v.
Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (quoting
Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.
2010); see also Blaisdell v. Frappiea, 729 F.3d
1237, 1241 (9th Cir. 2013) (a court must not hold
“missing or inaccurate ...