United States District Court, W.D. Washington, Tacoma
ORDER DKT. # 49
B. Leighton United States District Judge
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
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
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.
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.
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
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
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
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,
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.
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.