Morley v. Watson et al

Filing 52

MEMORANDUM DECISION AND ORDER Defendants' Motion for Summary Judgment (Dkt. 39 ) is GRANTED; Plaintiff's Motion for a Continuance (Dkt. 50 ) is DENIED; and Plaintiff's Amended Complaint (Dkt. 11 ) is DISMISSED with prejudice. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SHANNON BRUCE MORLEY,
Case No. 2:09-cv-00539-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
ROCKY WATSON and FELIX
GAYTON,
Defendants.

Pending before the Court is a Motion for Summary Judgment filed by Defendants
Kootenai County Sheriff Rocky Watson and Deputy Felix Gayton. (Dkt. 39).1 All parties
appearing before the Court have consented to the jurisdiction of a United States
Magistrate Judge to enter final orders in this case. (Dkt. 28.) See Fed. R. Civ. P. 72.
In his Amended Complaint, Plaintiff Shannon Bruce Morley alleges that, while
incarcerated at the Kootenai County Jail, Defendant Watson was responsible for
Defendant Gayton dispensing the wrong eye drops to Plaintiff, causing him intense pain
and the loss of 40% of his vision. (Dkt. 11.) In the Motion for Summary Judgment,
Defendants argue that there are no genuine disputes of material fact, that no constitutional
1

The caption used in this Order omits Dr. Chris Kennedy, who was dismissed from the
action by Order on November 17, 2010. This caption reflects the current posture of the case and
shall be used by the Court and the parties going forward.
MEMORANDUM DECISION AND ORDER - 1

right of Plaintiff has been violated, and that Defendants are entitled to summary
judgment. Plaintiff opposes summary judgment, and has filed a “Motion for a Rule 56(f)
Continuance.” (Dkt. 50.)
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest
of avoiding delay, and because the Court finds that the decisional process would not be
significantly aided by oral argument, this matter will be decided on the record before this
Court without oral argument. D. Idaho L. R. 7.1. For the reasons that follow, the Court
concludes that Defendants are entitled to summary judgment.
PLAINTIFF’S MOTION FOR RULE 56(f) CONTINUANCE
On May 3, 2012, Plaintiff filed “Motion for a Rule 56(f) Continuance.” (Dkt. 50.)
The pending Motion for Summary Judgment was filed on November 30, 2011. (Dkt. 39.)
Plaintiff “was rearrested on December 15, 2011,” in Chelan County Washington, where
he remains jailed today. (Id.) Plaintiff asserts that, due to jail policies regarding inmates’
possession of legal materials, he was forced to file an incomplete response to
Defendant’s dispositive motion on December 27, 2011. (Dkt. 43.)
On January 23, 2012, Plaintiff requested leave of Court to file a supplemental
response, which was granted on February 13, 2012. (Motion for Consideration, Dkt. 45;
Order, Dkt. 47). On February 23, 2012, Plaintiff filed a supplemental response. (Dkt. 48).
Plaintiff now seeks a continuance to file yet another supplemental response, asserting that
he did not have access to his legal work for this case when he filed his other responses.
MEMORANDUM DECISION AND ORDER - 2

Rule 56(d) provides, in pertinent part:
If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).
“A party requesting a continuance pursuant to Rule [56(d)] must identify by
affidavit the specific facts that further discovery would reveal, and explain why those
facts would preclude summary judgment.” Tatum v. City of San Francisco, 441 F.3d
1090, 1100 (9th Cir. 2006). Whether to grant such a motion is a matter of discretion. Id.
Even under a very liberal construction applied to a pro se plaintiff, the Court finds
that Plaintiff’s request does not meet the requirements of Rule 56(d). Plaintiff does not
provide the Court with any inkling of which facts Plaintiff was unable to provide in his
first two responses. Discovery in this matter closed on September 30, 2011, and thus, it is
not possible for Plaintiff to obtain new evidence to support his claims at this late date.
The Court finds that Plaintiff has had adequate time to obtain facts and present
them to the Court in his two responses, and he has not provided any information
regarding any further facts he wishes to present. Even after Defendants informed Plaintiff
that he “bears the burden of presenting adequate facts which would justify a
[continuance],” Plaintiff failed to file a reply to provide the Court with information about

MEMORANDUM DECISION AND ORDER - 3

what more he would submit with a third response. (Dkt. 51.) For all of the foregoing
reasons, the Court will deny Plaintiff's request for a continuance.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1.

Background
Plaintiff was incarcerated at the Kootenai County Jail at the time of the incident

giving rise to his civil rights claims. Plaintiff alleges that Defendant Deputy Gayton,
knowing he was not medically trained to administer eye drops, gave Plaintiff the wrong
eye drops, causing him to lose 40% of his vision. (Amended Complaint, Dkt. 11.)
Plaintiff alleges he is now disabled, as a result of the administration of the incorrect
drops. (Id.) Plaintiff further alleges that Sheriff Rocky Watson (1) permitted Deputy
Gayton to administer eye drops without properly training Gayton, and (2) generally
permitted different deputies to dispense prescription medication to inmates without
medical supervision, in violation of the rules governing county jails. (Dkt. 11, 48.)
Following dismissal of his first Complaint (Dkt. 3), Plaintiff filed an Amended
Complaint (Dkt. 11), and was allowed to proceed with Eighth Amendment claims against
Defendants Watson and Gayton. (Order, Dkt. 19). At that time, Defendant Chris Kennedy
was dismissed from the action. (Id.) The remaining Defendants now seek summary
judgment.
2.

Summary Judgment Standard

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
MEMORANDUM DECISION AND ORDER - 4

judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. “Material facts are those that may affect the
outcome of the case.” See id. at 248. The moving party is entitled to summary judgment
if that party shows that each material issue of fact cannot be disputed. To show that the
material facts are not in dispute, a party may cite to particular parts of materials in the
record, or show that the materials cited do not establish the presence of a genuine dispute,
or that the adverse party is unable to produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court
must consider “the cited materials,” but it may also consider “other materials in the
record.” Fed. R. Civ. P. 56(c)(3).

MEMORANDUM DECISION AND ORDER - 5

Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted). If the moving party meets its initial
responsibility, the burden then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
The existence of a scintilla of evidence in support of the non-moving party's
position is insufficient. Rather, “there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. Rule 56(e)(3)
authorizes the Court to grant summary judgment for the moving party “if the motion and
supporting materials– including the facts considered undisputed–show that the movant is
entitled to it.”
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To have
a claim under § 1983, a plaintiff must show the existence of four elements: “(1) a
violation of rights protected by the Constitution or created by federal statute (2)
MEMORANDUM DECISION AND ORDER - 6

proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.”
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).2 Section 1983 is “‘not itself a
source of substantive rights,’ but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker
v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

3.

Undisputed Facts
This section includes facts that are undisputed and material to the resolution of the

issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts, insofar as that version is not contradicted by clear documentary evidence
in the record.

On March 25, 2009, Plaintiff requested that Dr. Chris Kennedy prescribe eye
drops because Plaintiff’s thyroid medication was making his eyes dry. (Gayton Affidavit,
Dkt. 39-7; Exhibit D, Dkt. 39-10.) On that same date, Dr. Kennedy prescribed Artificial
Tears, an over-the-counter eye drop, to Plaintiff.3 (Id.)

2

Title 42 U.S.C. § 1983, provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State, ... subjects or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress....
3

Plaintiff alleges that if the eye drops were over-the-counter Artificial Tears, he would not have
needed a prescription. Plaintiff provides no evidence that this is the case for incarcerated individuals,
where virtually everything is heavily monitored. Neither has Plaintiff provided medical records showing
the eye drops were not Artificial Tears.

MEMORANDUM DECISION AND ORDER - 7

At the time period in question, the jail policy regarding dispensing medications to
Plaintiff provided that medical staff would place each inmate’s medication in a
medication box with that inmate’s name affixed to it, and non-medical jail staff would
dispense the medication to inmates by taking the medication package out of the inmate’s
box, removing the medication from the medication’s package, showing it to the inmate to
ensure that the inmate recognized the medication given, and then giving the medication
to the inmate to take or administer to himself (Gayton Aff., ¶¶ 21, 22.)
A time line of Plaintiff’s complaints about his medications follows:
March 9, 2009

Plaintiff alleges the Deputy Norris (not a defendant here)
gave him the wrong medication, which caused severe
headaches and stomach cramps. No grievance is filed about
this incident until April 9, 2009.

March 25, 2009

Plaintiff complained in a grievance that his thyroid
medication should be taken on an empty stomach, but that
deputies give it to him after breakfast, in contravention to the
prescription directions. (Case No. 2:09-cv-00180-EJL, Dkt. 3,
p. 11.)

March 26, 2009

Plaintiff filed a grievance, stating: “I am requesting that a
medical Staff be present during medication distribution times,
I have questions about medications that the deputies that hand
out meds cannot answer.” (Case No. 2:09-cv-00180-EJL,
Dkt. 3, p. 12.)

March 28, 2009

Plaintiff wrote a grievance, stating: “Medical staff will not
dispense my meds to me[;] they allow a[n] untrained deputy
to dispense . . . meds. I want a trained staff member to
administer my medication.” (Case No. 2:09-cv-00180-EJL,
Dkt. 3, p. 10.)

MEMORANDUM DECISION AND ORDER - 8

April 2, 2009

April 4, 2009

Plaintiff received eye drops from Deputy Gayton. Plaintiff
alleges he did not have his reading glasses with him and
could not read the medication’s package.

April 6, 2009

Plaintiff wrote a grievance, stating: “On 2 occasions I was
given wrong med by C/O Norris. I am demanding a medically
trained [illegible] to dispense my meds.” (Case No. 2:09-cv00180-EJL, Dkt. 3, p. 13.) No mention of problems from the
eye drops, administered two days earlier, was made.

April 17, 2009

Plaintiff filed a lawsuit in Case No. 2:09-cv-00180-EJL,
Morley v. Watson, et al., which alleged that, on March 9,
2009, Deputy Norris gave him the narcotic hydrocodone,
which caused severe headaches and stomach cramps, and that
on April 9, 2009, Deputy Gayton gave him the wrong eye
drops, which caused severe burning in his eye.

June 24, 2009

Plaintiff’s Complaint in Case No. 2:09-cv-00180-EJL was
dismissed without prejudice on initial review for failure to
state an injury of a constitutional magnitude. (Case No. 2:09cv-00180-EJL, Dkt. 12.)

October 21, 2009

4.

Plaintiff wrote a grievance, stating: “I have tried to get jail
staff to address the issue of me getting my meds mixed up
with other people’s meds by jail deputies to no avail. I want a
trained medical person to dispense my meds.” (Case No.
2:09-cv-00180-EJL, Dkt. 3, p. 9.)

Plaintiff files the original complaint in this action, repeating
the allegations about dispensing the wrong eye drops to
Plaintiff, but adding the allegation that the incident resulted in
loss of 40% of his vision. (Dkt. 3, in this action.)

Discussion of Claims Against Defendant Felix Gayton
Plaintiff alleges that Deputy Gayton dispensed the wrong eye drops to Plaintiff on

April 4, 2009, causing Plaintiff severe burning and loss of 40% of Plaintiff’s vision. To
state an Eighth Amendment claim regarding prison medical care, Plaintiff must show that
MEMORANDUM DECISION AND ORDER - 9

Gayton’s “acts or omissions [were] sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Deliberate indifference exists when an official knows of and disregards a serious
medical condition or when an official is “aware of facts from which the inference could
be drawn that a substantial risk of harm exists,” and actually draws such an inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere indifference, medical malpractice, or
negligence will not support a cause of action under the Eighth Amendment. Broughton v.
Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980).
Here, the undisputed facts do not demonstrate that Gayton acted with deliberate
indifference. Plaintiff alleges, but has not produced evidence that, Gayton “knew” he was
not properly trained to dispense eye drops to Plaintiff. Rather, the facts show that,
according to his habit and routine, Gayton dispensed the eye medication that was in
Plaintiff’s designated box to Plaintiff on April 4, 2009. Gayton did so in accordance with
his training, habit, and routine, gained over 5 years of services as a deputy. (Gayton Aff.,
Dkt. 39-7, ¶¶ 4-23.)
Nothing in the record demonstrates that Gayton knew that the eye drops would
harm Plaintiff, or that Gayton drew an inference that a substantial risk of harm existed in
the manner that the eye drops were distributed. While the record does not conclusively
demonstrate whether the eye drops dispensed actually were Plaintiff’s eye drops, or some
other type of prescription drops intended for another inmate, the record does demonstrate
that Gayton acted without deliberate indifference. If the eye drops were the wrong
MEMORANDUM DECISION AND ORDER - 10

prescription, then that act was attributable to the medical personnel who placed the eye
drops in Plaintiff’s box. If Gayton failed to realize that the drops were not for Plaintiff,
the record reflects that Gayton acted with mere negligence, which is not actionable as a
civil rights claim.
Plaintiff’s claim also fails for lack of causation. An essential element of a § 1983
case is that the plaintiff show that the defendants’ actions caused the deprivation of a
constitutional right. 42 U.S.C. § 1983;Arnold v. International Business Machines Corp.,
637 F.2d 1350, 1355 (9th Cir. 1981). In addition, Plaintiff’s claim fails because he has not
shown more than a de minimis damage or injury arising from Gayton’s actions. See Siglar
v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

Particularly, the record reflects insufficient evidence of causation and injury,
including the following: (1) Deputy Gayton did not hear any complaints from Plaintiff
when the eye drops were used (Gayton Aff, ¶ 36); (2) Plaintiff alleges that he complained
to several deputies, but provides no affidavits, names, dates, or other details supporting
this vague statement; (3) no concern forms (kites) or grievances were produced to
demonstrate that Plaintiff reported or sought medical care for the burning or vision loss;
(4) no medical records support Plaintiff’s claims; (5) no medical expert opinion supports
the claim that Plaintiff lost 40% of his vision; and (6) no medical expert opinion exists to
show that, even if Plaintiff now has a 40% vision loss, Defendants’ actions actually
caused that injury.

MEMORANDUM DECISION AND ORDER - 11

Plaintiff alleges that “the defendants have not submitted any affidavits or sworn
testimony as to the condition of my eye sight before and after the wrong eye drops were
given to me.” (Dkt. 43, p. 2.) However, in a motion for summary judgment, Defendants
are required only to point to the absence of evidence supporting Plaintiff’s claims. It is
Plaintiff’s burden to come forward with sufficient evidence upon which a jury could
reasonably find in his favor. He has not done so.
While Plaintiff may have suffered burning of the eyes and vision loss while
incarcerated, that fact alone is not enough to show Defendant Gayton caused the
conditions, or that the conditions were due to deliberate indifference of Gayton. Plaintiff
is qualified only to testify that the eye drops caused burning of the eyes; because he is not
a medical expert, Plaintiff is not qualified to testify that he has a 40% vision loss or that
the loss was caused by Gayton. Plaintiff has offered proof of only a de minimis injury,
meaning one that is not of a constitutional magnitude. Accordingly, Defendant Gayton is
entitled to summary judgment on Plaintiff’s claims.
3.

Discussion of Claims Against Defendant Rocky Watson
Because Plaintiff has failed to show more than a de minimis injury, and has failed

to show that Defendant Gayton’s dispensing of the eye drops on April 4, 2009, caused

MEMORANDUM DECISION AND ORDER - 12

any injury, Plaintiff’s claims against Defendant Sheriff Rocky Watson necessarily fail,
both as an individual capacity claim4 and an official capacity claim.5
In other words, even if Sheriff Watson knew that Kootenai County Jail “allows
more than one jail staff to dispense medications which is a violation of Idaho state rules
of county jails,” as Plaintiff argues (Dkt. 48, p. 3), Sheriff Watson’s supervisory actions
or inactions cannot be causally linked to any injury, because the underlying claims lack a
showing of injury and causation.
4.

Conclusion
Plaintiff was provided with the opportunity to engage in written discovery, obtain

optometry records, and file two responses to the Motion for Summary Judgment. At this
critical stage of proceedings, he has failed to come forward with sufficient evidence of
injury and causation to support his § 1983 claim. For this reason, the Court need not reach
Defendants’ qualified immunity argument. Accordingly, summary judgment will be
granted on all claims, and Plaintiff’s Amended Complaint, and this entire action, will be
dismissed with prejudice.

4

Contrary to Defendants’ argument, an individual capacity claim based on failure to train lies
against Sheriff Watson. See Starr v. Baca, 633 F.3d 1191 (9th Cir. 2011) (A supervisor can be liable in
his individual capacity for his own culpable action or inaction in the training, supervision, or control of
his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a
reckless or callous indifference to the rights of others.) (internal citation and punctuation omitted).
Plaintiff simply has failed to produce sufficient evidence to proceed to trial on this claim.
5

See Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 691-94 (1978).

MEMORANDUM DECISION AND ORDER - 13

ORDER
IT IS ORDERED:
1.

Defendants’ Motion for Summary Judgment (Dkt. 39) is GRANTED;

2.

Plaintiff’s Motion for a Continuance (Dkt. 50) is DENIED; and

3.

Plaintiff’s Amended Complaint (Dkt. 11) is DISMISSED with prejudice.
DATED: July 3, 2012

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 14