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McDonough v. Smith

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

October 25, 2019

SAMUEL K MCDONOUGH, Plaintiff,
v.
ROBIN SMITH, et al., Defendant.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Samuel K. McDonough, commenced this civil rights action by filing a complaint pursuant to 42 U.S.C. § 1983. Dkt. 6. Plaintiff is a prisoner currently housed at Monroe Correctional Complex-SOU (MCC-SOU), and proceeds pro se and in forma pauperis, in this action. Dkt. 5. In his original complaint, plaintiff stated he intended “to file two different cases” a federal 1983 lawsuit about DOC “refusing to give me my antibiotics” and a “federal appeal to my criminal case[.]” Id. The Court reviewed and screened plaintiff's original complaint under 28 U.S.C. § 1915A and §1915(e) and issued a Report and Recommendation finding and recommending the following:

1) that plaintiff's claims relating to his “federal appeal” to his criminal case be dismissed without prejudice and with leave to re-file a federal habeas petition pursuant to 28 U.S.C. § 2254;
2) that plaintiff's § 1983 claims related to alleged inadequate medical care provided by Department of Corrections (DOC) staff failed to state a claim as pled but that plaintiff should be given an opportunity with, respect to his § 1983 claims, to amend his complaint to cure the deficiencies described in the Court's Report and Recommendation. The Court further recommended that (1) if plaintiff failed to file an amended complaint, that the case be dismissed pursuant to 28 U.S.C. § 1915A and §1915(e) for failure to state a claim; and (2) if plaintiff did file an amended complaint, that the case be referred back to the undersigned for further proceedings. Dkt. 8

         While the Report and Recommendation was pending before the Hon. Richard A. Jones, plaintiff filed a separate 28 U.S.C. § 2254 habeas corpus petition in this court challenging the alleged constitutional violations related to his conviction and sentence and seeking release from custody. See McDonough v. State of Washington, 19-cv-1501-MJP-BAT. Plaintiff also filed an amended 42 U.S.C. § 1983 complaint in the instant case in which he attempts to remedy the deficiencies in his original complaint laid out in the Court's Report and Recommendation. Dkt. 10. As it appeared plaintiff had substantially complied with the Court's recommendations, the Court issued an order terminating consideration of the Report and Recommendation as moot. Dkt. 11.

         The Court has now screened plaintiff's amended § 1983 complaint and recommends that plaintiff's claims with respect to inadequate medical care related to his tooth and contamination of the food, water, and coffee at MCC-SOU be dismissed with prejudice for failure to state a claim and that plaintiff's claims with respect to “false imprisonment” be dismissed without prejudice pursuant to Heck v. Humphrey, 512 U.S. 477, 483-87 (1994).

         BACKGROUND

         A. Original Complaint

         As noted above, in his original complaint, plaintiff indicated he intended “to file two different cases” a federal 1983 lawsuit about DOC “refusing to give me my antibiotics” and a “federal appeal to my criminal case[.]” Dkt. 6. With respect his § 1983 claims plaintiff alleged he has “multiple infections going on” in his shoulder, stomach, and teeth. Id. He alleged defendants had acted with deliberate indifference in refusing to continue to prescribe him antibiotics. Specifically, plaintiff contended about a month ago he experienced spontaneous swelling in his cheek like a tooth infection and went to the nurse. Id. He indicated he was prescribed 30 days of the antibiotic “metonidazole” and 7 days of the antibiotic “clindamyacin” and scheduled to see the dentist. Id. He contended the antibiotics worked well and the swelling was almost completely gone and that he also believed they were helping his shoulder and stomach problems which he also attributed to bacterial infections. Id. He indicated he returned and requested a re-fill of the antibiotics from a “substitute” dentist. Id. That dentist indicated he could not refill the prescription due to “risk of immunity from too much” and that he would have to see the regular dentist. Id. Plaintiff indicated when he saw the regular dentist, Laura Hale, and asked for more antibiotics she refused and told him that his tooth was the source of the infection and that it needed to be pulled. Id.

         Plaintiff indicated he asked a different provider, Robin Smith, for antibiotics and she also refused to prescribe them and stated something about plaintiff being “mentally ill.” Id. Plaintiff indicated he went to another dentist, Valerie Webb, who prescribed him another 7 days of antibiotics and that it was working great but now it is not possible for him to receive more. Id. Plaintiff contended defendants are not prescribing him antibiotics “because they are in on it with the ones tampering with my food/water/coffee.” Id. He indicated the “scheme is to tamper with my food/water/coffee, with some substance to make my teeth hurt …[then] get me to pull a tooth.” Id. Plaintiff also alleged he's had a shoulder problem since he was at Clallam Bay which was diagnosed as “arthritis” and that he has had stomach problems since 2014 but that “they don't want me to receive the cure because they are the ones who gave it to me.” Id. He contended “the nursing staff from King County Jail are the ones who are behind all of it.” Id. Plaintiff alleged the nursing staff from King County Jail in retaliation for filing a case against them “manufactured this residential burglary case on me …[and] are the source of my infectious diseases.” Id. Plaintiff also appeared to allege the other inmates are tampering with the water supply and spreading infectious bacteria. Id. Plaintiff also stated it is unjust he has to register as a sex offender because “indecent exposure is not the definition of my character it is something stupid I did high on methamphetamine.” Id.

         As relief, plaintiff requested an emergency injunction forcing the nursing staff to completely cure his infection with a full course of antibiotics or release him so he can go somewhere to get treatment; force the inmates so there is clean food and water; use evidence from this lawsuit as evidence of fraud for his federal appeal and reverse and dismiss; assign a federal investigator to review all of his cases so they can inform the court of the truth.

         With respect to his “federal appeal” plaintiff alleged various problems in his criminal trial including juror bias, insufficient evidence, and violation of his speedy trial rights, that he was falsely accused and maliciously prosecuted. Id. As relief he requested the Court reverse and dismiss his criminal conviction and release him back to community custody. Id.

         B. Amended Complaint

         In his amended complaint, plaintiff again makes substantially the same allegations in support of his claim that defendants Hale and Smith acted with deliberate indifference to a serious medical need. Dkt. 10. Specifically, he alleges the defendants Hale and Smith “are continuously refusing to give [him] enough anti-biotics to cure the infection in [his] cheek/teeth.” Id. He indicates defendants Hale and Smith have refused to prescribe him additional antibiotics to those he has already taken, stating that his tooth needs to be pulled. Id. Plaintiff indicates he believes that the infection is not from his teeth but is from “tampering with food/water/coffee and the two defendants named damn well know it.” Id. He further states he knows “it is a conclusory allegation but [he] ...


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