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Malone v. Sziebert

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

October 17, 2019

CALVIN MALONE, Plaintiff,
v.
LESLIE SZIEBERT, Defendant.

          REPORT AND RECOMMENDATION

          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 Calvin Malone, proceeding pro se and in forma pauperis, initiated this civil rights action.

         This case is before the Court on remand from the Ninth Circuit Court of Appeals. Presently pending are Second Motions for Summary Judgment filed by Plaintiff (Dkt. 112, “Plaintiff's Second Motion”) and Defendant Dr. Leslie Sziebert (“Defendant”) (Dkt. 121, “Defendant's Second Motion”).

         The Court concludes Plaintiff failed to sufficiently rebut Defendant's summary judgment showing on Plaintiff's claims of inadequate medical treatment because Plaintiff has failed to identify any evidence demonstrating Defendant participated in any treatment decisions relating to Plaintiff's Achilles tendon injury or the scheduling of patients to be transported to medical services. The Court also finds supplemental jurisdiction should not be exercised over Plaintiff's state law claims. Accordingly, the Court recommends denying Plaintiff's Second Motion (Dkt. 112), granting Defendant's Second Motion (Dkt. 121), and closing this case.

         BACKGROUND

         Plaintiff, a civilly-committed detainee at the Washington Special Commitment Center (“SCC”), [1] initiated this action on August 6, 2015.[2] See Dkt. 8. Plaintiff's remaining claim stems from the medical treatment he received when he ruptured his Achilles tendon, while Defendant was SCC's Medical Director. See Dkt. 8. In particular, Plaintiff alleges he received inadequate medical treatment in violation of the Eighth and Fourteenth Amendments. Id. at 12-13, 14-16. Plaintiff also alleges state law claims against Defendant. Id. at 16-17, 19.

         This matter was previously considered by the Court on cross-motions for summary judgment filed in late 2017. On March 16, 2018, the Court granted Defendant's First Motion for Summary Judgment (“Defendant's First Motion”) (Dkt. 85) and denied Plaintiff's First Motion for Summary Judgment (“Plaintiff's First Motion”) (Dkt. 80) finding Defendant was entitled to summary judgment because Defendant did not personally participate in Plaintiff's medical treatment. Dkts. 93, 94.

         On appeal, the Ninth Circuit reversed and remanded this matter holding:

[I]t is not clear from the record whether defendant Sziebert, or someone else, is responsible for scheduling patients to be transported to medical services. The position description for the Medical Director provides that the Medical Director has “extensive input into the daily operation of clinical and residential programming, ” authority “over the entire scope of the [SCC] Program and all of its residential venues, ” and “direct responsibility for the oversight of all SCC medical policies.” Further, Sziebert testified during his deposition that he was aware that Malone had an outpatient appointment that was “not carried out . . . because of a stricture that security placed on [SCC] that there was only two medical trips out.” Sziebert additionally admitted during his deposition that “there [are] occasions when the health and safety of a resident is compromised due to the physical location of the facility and the length of time it takes to transport a patient to medical services.” On this record, Sziebert has not met his burden of showing that there is no genuine dispute of material fact as to whether he was not responsible for the alleged violations. See Felarca v. Birgeneau, 891 F.3d 809, 819-20 (9th Cir. 2018) (supervisor can be liable under § 1983 for “knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury” (citation omitted)); see also Mitchell, 818 F.3d at 443-44 (setting forth standards for constitutionally adequate medical care under Fourteenth Amendment and equal protection claims). We vacate summary judgment on these claims and remand for further proceedings.

         Dkt. 99 at 2; Dkt. 100; Malone v. Sziebert, No. 15-05552, 2016 WL 3033663 (9th Cir. Nov. 27, 2018) (unpublished).

         In August 2019, the parties renewed their motions for summary judgment, with further arguments on whether Defendant was responsible for the scheduling of patients for transportation to off-island medical services and thereby responsible for the alleged constitutional violations. Dkts. 112, 121. On August 8, 2019, Plaintiff filed his Second Motion. Dkt. 112. The same day, Plaintiff filed a Declaration, Brief in Support, and Statement of Facts. Dkts. 113-115. On August 26 and 27, 2019, Defendant field his Second Motion, a Response to Plaintiff's Second Motion, Declaration of Defendant Sziebert, and Declaration of Gregory Silvey to Correct Scrivener's Error in Caption of Defendant's Response. Dkts. 117, 119, 120, 121. On September 11, 2019, Plaintiff filed a Response to Defendant's Second Motion and a Declaration in Support. Dkts. 123, 124. Both Second Motions for Summary Judgment became ready for the Court's consideration on September 20, 2019. Dkt. 122.

         UNDISPUTED FACTS

         The Court previously outlined the undisputed facts related to Plaintiff's injury and medical treatment in its February 23, 2018 Report and Recommendation. Dkt. 93. Because the parties are familiar with the facts, the Court recites them only as necessary to explain this Report and Recommendation.[3]

         On June 4, 2014, Plaintiff ruptured his left Achilles tendon during a recreational activity at SCC. Dkt. 8 at 7;[4] Dkt. 119 (Sziebert Declaration) at ¶ 4; Dkt. 124 at 2 (Plaintiff's Declaration in Opposition to Defendant's Second Motion). Defendant was SCC's Medical Director at the time. See Dkt. 119 at ¶ 1; Dkt. 124 at 2. On June 5, 2014, ARNP, Galina Dixon, a SCC medical staff member, briefly consulted Defendant on the injury. Dkt. 119 at ¶ 5; Dkt. 119, Exhibit B at 1-3; Dkt. 124 at 2-3. Defendant “agreed that ...


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