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Santiago v. Gage

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

November 15, 2019


          ORDER DKT. # 49

          Ronald B. Leighton United States District Judge


         THIS MATTER is before the Court on the Report and Recommendation (R&R) of Magistrate Judge J. Richard Creatura. Dkt. # 49. The underlying case concerns the attempt by Marco Santiago, a male-to-female transgender prisoner, to obtain treatment for Gender Dysphoria. Although Santiago is now undergoing the hormone therapy she originally sought, she has sued several Washington Department of Corrections (DOC) employees for delaying her treatment. She claims that this delay violated her Eighth Amendment right to be free from cruel and unusual punishment.

         Both parties moved for summary judgment, with Defendants arguing that there was no deliberate indifference and that they are entitled to qualified immunity as a matter of law. The R&R denied Santiago's Motion in full and granted Defendants' Motion with respect to the claims against Bruce Gage. The Court ADOPTS this part of the R&R. However, Judge Creatura denied Defendants' Motion with respect to Defendants Ryan Herrington and Scott Light. The Court DECLINES TO ADOPT this part of the R&R because Defendants Herrington and Light are qualifiedly immune from suit.


         The background facts of this case can be found in the R&R, but the Court will nonetheless provide a basic narrative. Santiago was diagnosed with Gender Dysphoria on August 16, 2017, and clinical assessments were completed by November 20, 2017. On January 5, 2018, Santiago attempted self-castration and was treated by Defendant Light, a certified physician's assistant at the Stafford Creek Correctional Facility where Santiago was being held.

         On February 8, 2018, a special care review committee addressing gender dysphoria (which includes Defendant Gage, the DOC's Chief of Psychiatry) met but was unable to discuss Santiago's case for scheduling reasons. The committee did not meet again until March 26, when it determined that Santiago's case required additional psychological testing. When the committee met again on July 12, it considered the results of the testing and authorized Santiago's hormone therapy.

         In the meantime, on May 9, a “blood work up” on Santiago revealed that she had slightly elevated prolactin levels. These results caused Defendant Herrington, the Medical Director at the Stafford Creek Correctional Center, to delay treatment pending an additional consultation with an endocrinologist (it is unclear when Herrington ordered the consultation but his declaration suggests it was before the committee's July 16 meeting). See Dkt. # 40 at 2. That consultation was completed on August 30. Defendant Light, who had by this time become Santiago's primary care provider, approved the hormone treatment on October 12 and it began on November 3. Light states that he could not have ordered treatment before the endocrinology consultation required by Herrington was completed and then could not fit Santiago into his schedule until October 12. Dkt # 41 at 3-4. There is no evidence indicating that either Herrington or Light had ulterior motives for delaying Santiago's treatment another three months after the committee's July 16 authorization.


         With respect to the delay to Santiago's treatment after the July 16 committee meeting, Judge Creatura concluded that there were disputes of fact as to whether Defendants Herrington and Light violated Santiago's Eight Amendment rights by interfering with her treatment. Dkt. # 49 at 20 & 23-24. He also determined that Herrington and Light were not entitled to qualified immunity. Dkt. # 49 at 24-28. Defendants object strenuously to both proposed outcomes, see Dkt. # 52, but the Court need only analyze qualified immunity.

         The goal of qualified immunity is to shield public officials from civil damages for reasonable mistakes to ensure that the specter of liability does not “unnecessarily paralyze their ability to make difficult decisions in challenging situations.” Mueller v. Auker, 576 F.3d 979, 992-93 (9th Cir. 2009). “Qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Id. at 992 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Questions regarding qualified immunity should be resolved “at the earliest possible stage in the litigation” because, “like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id. (internal quotations omitted).

         Under qualified immunity, a government official can only be exposed to liability if “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” Easley v. City of Riverside, 890 F.3d 851, 856 (9th Cir.) (quoting District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (internal quotation omitted)). The second element further breaks down into “two discrete sub-elements: ‘whether the law governing the conduct at issue was clearly established' and ‘whether the facts as alleged could support a reasonable belief that the conduct in question conformed to the established law.'” Id. (quoting Green v. City & Cty. of San Francisco, 751 F.3d 1039, 1052 (9th Cir. 2014)). Although there need not be a “case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

         Here, the inquiry turns on the second element. Judge Creatura determined that prisoners have a clearly established right to obtain medical care without intentional interference by officials. See Dkt. # 49 (citing Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) and Portillo v. Johnson, 94 Fed.Appx. 457, 459 (9th Cir. 2004)). Judge Creatura then concluded that, because the DOC's Offender Health Plan did not allow a primary care provider to intervene in a committee decision unless they re-present the case or circumstances change significantly, Defendants Herrington and Light violated clearly established law by delaying Santiago's treatment. Dkt. # 49 at 26-27.

         The Court disagrees with this reasoning. As Defendants emphasize, the Seventh Circuit recently held that a prison employee was qualifiedly immune from suit in a situation very similar to this. In Mitchell v. Kallas, the plaintiff's claim against one of the defendants also concerned “the length of time it took for the [hormone therapy] assessment to be completed.” 895 F.3d 492, 500 (7th Cir. 2018). Although the court did not dispute the serious nature of gender dysphoria, it did observe that there is “little evidence about the typical length of . . . evaluations” for the appropriateness of hormone therapy. Id. Indeed, several courts have held that evaluations taking well over a year do not constitute deliberate indifference. Id. (citing Arnold v. Wilson, No. ...

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