Chyatte v. Missoula County et al

Filing 76

ORDER granting in part and denying in part 36 Motion for Summary Judgment; granting in part and denying in part 41 Motion for Summary Judgment; denying 53 Motion to Compel. Defendant Jensen is dismissed. Signed by Magistrate Judge Jeremiah C. Lynch on 9/21/2015. Mailed to Chyatte. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DOUGLAS JOSEPH CHYATTE,

CV 13-174-M-JCL

Plaintiff,
vs.

ORDER

MISSOULA COUNTY, et al.,
Defendants
This matter is before the Court on the Defendants’ Motions for Summary
Judgment (Docs. 36, 41) and Plaintiff Douglas Chyatte’s Motion to Compel (Doc.
53.) Summary Judgment will be granted as to Defendant Munsell, Chyatte’s claim
of denial of medications for the first two months of his incarceration at the
Missoula County Detention Facility (MCDF), and his denial of Celebrex claim.
Although there may be a genuine issue of fact regarding whether Chyatte’s rights
under the Americans with Disabilities Act (ADA) were violated, he is not entitled
to any form of relief under the ADA and therefore those claims will be dismissed.
All other motions will be denied.
I. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) entitles a party to summary judgment
“if the movant shows that there is no genuine dispute as to any material fact and
1

the movant is entitled to judgment as a matter of law.” The movant bears the
initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, which it believes demonstrate
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has satisfied its burden, the non-moving
party must go beyond the pleadings and designate by affidavits, depositions,
answers to interrogatories, or admissions on file, “specific facts showing that there
is a genuine issue for trial.” Id. at 324. In deciding a motion for summary
judgment, the Court views the evidence in the light most favorable to the
nonmoving party and draws all justifiable inferences in the non-moving party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Court must grant summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a); Washington Mutual Inc. v. U.S., 636 F.3d
1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is
disputed or undisputed, must be supported by (1) citing to particular parts of
materials in the record, including but not limited to depositions, documents,
declarations, or discovery; or (2) showing that the materials cited do not establish
2

the presence or absence of a genuine dispute or that the opposing party cannot
produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation
marks omitted). The Court may consider other materials in the record not cited to
by the parties, although it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen
v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001);
accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
A fact is material if it might affect the outcome of the suit under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute about a material fact is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. A defendant does not
bear the burden of proof at trial and in moving for summary judgment, he need
only prove an absence of evidence to support the plaintiff’s case. In re Oracle
Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If a defendant meets his initial
burden, the burden then shifts to the plaintiff “to designate specific facts
demonstrating the existence of genuine issues for trial.” In re Oracle Corp., 627
F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires a plaintiff to
“show more than the mere existence of a scintilla of evidence.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
3

However, in judging the evidence at the summary judgment stage, the Court
may not make credibility determinations or weigh conflicting evidence.
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation
marks and citation omitted). The Court must draw all inferences in the light most
favorable to the nonmoving party and determine whether a genuine issue of
material fact precludes entry of judgment. Comite de Jornaleros de Redondo
Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation
marks and citation omitted). The Court determines only whether there is a
genuine issue for trial and in doing so, it must liberally construe Chyatte’s filings
because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.
2010) (quotation marks and citations omitted).
By contemporaneous notices provided April 7, 2015 (Doc. 39) and April 10,
2015 (Doc. 48), Chyatte was advised of the requirements for opposing motions
brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v.
Rowland, 154 F.3d 952, 957 (9th Cir. 1998)(en banc ); Klingele v. Eikenberry, 849
F.2d 409 (9th Cir. 1988).
II. COUNT IV–DENIAL OF MEDICAL CARE
A. Medical Care Allegations
Chyatte was first incarcerated at MCDF on February 3, 2012. In Count IV
4

of the Amended Complaint, Chyatte alleges Spectrum Medical, Nurse Tim Stahl,
PA-CR Trudeau, FNP Munsell, Missoula County, and Captain Kowalski denied
him access to his prescription medications for two months pending receipt of his
medical records. He alleges he was not seen by Spectrum medical personnel until
two months after his arrival at MCDF when he was seen by Defendant Munsell.1
Chyatte was informed that he could receive Gabapentin2 but not Celebrex3 because
it was too expensive. He was prescribed Meloxicam instead of Celebrex. He
contends that Meloxicam was not as effective as Celebrex and therefore he was
forced to exist in a state of excruciating pain with unchecked joint swelling
accompanied by irreversible joint damage and further loss of range of motion.
(Amended Complaint, Doc. 9 at 12-13.)
Chyatte alleges he made many requests for his proper medication but all
were ignored. He finally filed a grievance complaining of deliberate indifference

1

Chyatte has admitted that he misidentified FNP Munsell in the Amended
Complaint. (Motion to Amend Reply Brief, Doc. 56 at 5.) As such, Defendant
Munsell will be dismissed.
2

Drugs.com indicates that Gabapentin (Neurontin) is an anti-epileptic
medication used to treat nerve pain. http://www.drugs.com/gabapentin.html
accessed 9/15/2015.
3

Drugs.com indicates that Celebrex is a nonsteroidal anti-inflammatory drug
(NSAID) used to treat pain or inflammation caused by many conditions such as
arthritis, etc. http://www.drugs.com/celebrex.html accessed 9/15/2015.
5

to his serious medical needs and in response Defendant Nurse Tim Stahl abruptly
terminated all of Chyatte’s medications. As a result of the abrupt stoppage he
asserts he experienced numerous side effects from detoxification from Mirtazapine
(an anti-depressant) namely symptoms of psychosis, suicidal ideations, cognitive
disorganization, and severe debilitating depression. He alleges his requests for
treatment were ignored and Defendants failed to monitor him for adverse side
effects from the abrupt medication stoppage. (Amended Complaint, Doc. 9 at 13.)
He alleges that Spectrum Medical employed neither a physician,
psychiatrist, or psychologist during his incarceration. Rather, his health care at the
MCDF was provided by “corrections health care technicians” with “spotty,
intermittent supervision by an off-site PA.” He contends this amounts to a policy
of deliberate indifference. (Amended Complaint, Doc. 9 at 14.)
B. Exhaustion of Administrative Remedies
Defendants first argue that Chyatte failed to properly exhaust his
administrative remedies with regard to the discontinuation of his medications on
April 20, 2012. (Spectrum MSJ, Doc. 37 at 5; Missoula MSJ, Doc. 42 at 24.)
Chyatte contends he filed grievances and has exhausted his remedies.
The Prison Litigation Reform Act (“PLRA”)’s exhaustion requirement
states:
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[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524-25 (2002);
Booth v. Churner, 532 U.S. 731, 741 (2001). This means a prisoner must
“complete the administrative review process in accordance with the applicable
procedural rules, including deadlines, as a precondition to bringing suit in federal
court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). Exhaustion is mandatory.
Booth, 532 U.S. at 741; Jones v. Bock, 549 U.S. 199, 211 (2007). Under the
PLRA, prison regulations define the exhaustion requirements. Jones, 549 U.S. at
218.
The proper procedural device for determining whether administrative
remedies have been exhausted is a motion for summary judgment. Albino v. Baca,
747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). The determination of whether a
defendant has proved a failure to exhaust is governed by the following burdenshifting regime:
a defendant must first prove that there was an available administrative
remedy and that the prisoner did not exhaust that available remedy.
Then, the burden shifts to the plaintiff, who must show that there is
something particular in his case that made the existing and generally
available administrative remedies effectively unavailable to him by
showing that the local remedies were ineffective, unobtainable,
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unduly prolonged, inadequate, or obviously futile. The ultimate
burden of proof, however, remains with the defendants.
Williams v. Paramo, 775 F.3d 1182, 1190-1191 (9th Cir. 2015) (internal
quotations and citations omitted).
Therefore, the defendant must produce evidence showing that a remedy is
available “as a practical matter,” that is, it must be “capable of use; at hand.”
Albino, 747 F.3d at 1171. The Court should consider what “information [was]
provided to the prisoner concerning the operation of the grievance procedure.”
Brown, 422 F.3d at 937. This information “is pertinent because it informs [the]
determination of whether relief was, as a practical matter, ‘available.’ ” Id.
Defendants contend they are entitled to summary judgment because Chyatte
did not avail himself of the procedures purportedly available to grieve the
discontinuance of his medications on April 20, 2012.
Chyatte, however, filed a declaration indicating that he filed a grievance
after Spectrum discontinued his medications but it was ignored and he tried to go
without his medications. (Second Declaration, Doc. 59 at 4, ¶¶ 31-33.) He also
argues that he filed a second grievance on July 18, 2012 which was granted,
thereby exhausting the administrative remedies available to him.
Because there exists a genuine issue of material fact regarding whether

8

Chyatte filed a grievance following the April 20, 2012 stoppage of his
medications, summary judgment may not be granted to Defendants.
C. Denial of Medical Care
As a pretrial detainee at all times relevant to his Complaint, Chyatte’s
claims that he was denied medical care arise under the Due Process Clause of the
Fourteenth Amendment and not under the Eighth Amendment prohibition against
cruel and unusual punishment. Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir.
1996). But “the due process clause imposes, at a minimum, the same duty the
Eighth Amendment imposes: ‘persons in custody ha[ve] the established right to
not have officials remain deliberately indifferent to their serious medical needs.’ ”
Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (citing Carnell,
74 F.3d at 979).
To state a § 1983 claim for failure to provide medical care, including mental
health care, a prisoner must allege a defendant’s “acts or omissions [were]
sufficiently harmful to evidence a deliberate indifference to serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Toussaint v. McCarthy, 801
F.2d 1080, 1111 (9th Cir. 1986). In the Ninth Circuit, the test for deliberate
indifference to medical needs is two-pronged: (1) “the plaintiff must show a
serious medical need by demonstrating that failure to treat a prisoner’s condition
9

could result in further significant injury or the unnecessary and wanton infliction
of pain”; and (2) “the plaintiff must show the defendant’s response to the need was
deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir.
2012)(quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
1. Serious Medical Need
With regard to the first prong, the existence of an injury that a reasonable
physician would find important and worthy of comment or treatment, the presence
of a medical condition that significantly affects an individual’s daily activities,
and/or the existence of chronic or substantial pain are indications of a serious
medical need. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (citation
omitted).
Chyatte testified that a Dr. Loess confirmed his diagnoses of lupus and
rheumatoid arthritis, prior to his incarceration at MCDF. He contends the lupus
and arthritis became serious health problems for him in the early months of 2011.
By the early spring of 2011 he was using a walking stick and/or cane. In June
2011, his condition had deteriorated to the point that a physician insisted he use a
wheelchair. (Chyatte Declaration, Doc. 62 at 3.)
Chyatte alleges that upon his arrival at MCDF he was given a walker but
shortly thereafter needed a wheelchair because of the alleged lack of adequate
10

medical care. (Declaration, Doc. 62 at ¶ 26.) He asserts Spectrum failed to
perform necessary blood tests and a physical examination. (Declaration, Doc. 62
at ¶¶ 30, 32; Lab results, Doc. 62-1 at 6.) Ultimately, he was apparently examined
by William Stratford, M.D., who verified that Chyatte suffered from lupus and
rheumatoid arthritis. Chyatte also contends that in December 2012 he was seen by
PA-C Scott Meissner who also verified that he has lupus and arthritis.
(Declaration, Doc. 62 at ¶ 40; Medical charges receipt, Doc. 62-1 at 10.)
Upon his subsequent transfer to Montana State Prison (MSP), Chyatte
contends his diagnosis of lupus and arthritis was again confirmed by medical
personnel and he asserts he is being treated for lupus and arthritis at MSP with
Celebrex and cycles of Prednisone. (Declaration, Doc. 62 at ¶¶ 10, 12-13.)
Defendants challenge Chyatte’s assertion of a serious medical need, arguing
that Chyatte’s test results and medical records do not confirm lupus or arthritis.
(Spectrum SUF at ¶ 26, Doc. 38 at 6 citing Stahl Affidavit, ¶ 32, Doc. 38-2 at 6.)
The progress notes of Spectrum’s PA Scott Meissner indicate that Chyatte’s “sed
rate” was being tested (Doc. 38-2 at 19–progress note for March 2, 2012 stating
“sed rate/CMP pending”) but there is no indication what were the results of those
tests. Spectrum does not substantiate the basis for Defendant Stahl’s statement
that Chyatte’s test results and medical records do not confirm lupus or arthritis.
11

Chyatte, in contrast, has presented a lab report that states the test for sed rate
was “cancelled by lab, specimen was not received MCDF notified.” (Lab report,
Doc. 57-5 at 3.) He also presented the following evidence from other medical
facilities which he argues indicate a diagnosis of lupus and/or arthritis: (1)
medical reports from Hazelden (a drug and alcohol treatment facility) stating,
“Perhaps, he should see a rheumatologist here; he has active rheumatoid arthritis”
(Hazelden report, Doc. 57-3) and that he has rheumatoid arthritis and/or lupus
(Hazelden records, Doc. 2-1 at 1-3); (2) medical records from Ocala Community
Care (Doc. 58-4) where he received care while he was incarcerated in Florida
showing a diagnosis of rheumatoid arthritis and a four-day cycle of Prednisone
which Spectrum was aware of because their own progress notes (Doc. 38-2 at 19)
indicate Chyatte completed a Prednisone taper on January 8, 2012, prior to his
incarceration at MCDF; (3) records from MSP showing he received
accommodations based upon his lupus condition (Doc. 58-7 at 3; 58-8 at 1) and
that he has been prescribed Celebrex (Doc. 58-4); and (4) a medical co-pay charge
receipt dated December 29, 2012 indicating he was charged for a visit while at
MCDF regarding rheumatoid arthritis and lupus (Doc. 58-9 at 2). These records
and particularly the representations that Chyatte was treated with Prednisone in
Florida and at Montana State Prison (Doc. 59 at ¶¶ 81-82) create a genuine issue
12

of material fact regarding whether a reasonable doctor would find the presence of
a medical condition that significantly affects an individual’s daily activities and/or
the existence of chronic or substantial pain.
Moreover, it appears that while at MCDF, Chyatte was given medications
(Meloxicam, Ibuprofen, and Neurontin) to treat his arthritis and/or lupus. There is
nothing in the record to indicate that these medications were prescribed for
anything other than lupus and/or arthritis.
Defendants present a number of facts suggesting that Chyatte does not
suffer from arthritis or lupus. But on summary judgment, the Court must construe
the facts in the light most favorable to Chyatte. In light of the treatment provided
to Chyatte prior to his incarceration at MCDF, the medical records presented by
Chyatte, the lack of tests and examinations of Chyatte while at MCDF, and the
records Chyatte presented demonstrating current treatment, for purposes of this
motion, the Court cannot say Chyatte did not suffer from the serious medical
conditions of lupus and/or rheumatoid arthritis.
2. Deliberate Indifference
The second prong of the deliberate indifference to a serious medical need
standard requires a showing of: “(a) a purposeful act or failure to respond to a
prisoner’s pain or possible medical need and (b) harm caused by the indifference.”
13

Wilhelm, 680 F.3d at 1122 quoting Jett, 439 F.3d at 1096. “Such indifference may
be manifested in two ways. It may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way in
which prison physicians provide medical care.” Hutchinson v. U.S., 838 F.2d 390,
394 (9th Cir. 1988)(citing Estelle, 429 U.S. at 104-05). Deliberate indifference
may also be found where the reason for the defendant’s action or inaction is
unrelated to the prisoner’s medical needs. Snow v. McDaniel, 681 F.3d 978, 987
(9th Cir. 2012)(overruled on other grounds Peralta v. Dillard, 744 F.3d 1076 (9th
Cir. 2014); Jett, 439 F.3d at 1097 (citation omitted). A complete denial of medical
care is not required to show deliberate indifference. Lopez v. Smith, 203 F.3d
1122, 1132 (9th Cir. 2000). Allegations that treatment has been requested and
denied because of a difference of opinion with medical staff, absent more, are
insufficient to state a claim for deliberate indifference. Jackson v. McIntosh, 90
F.3d 330, 332 (9th Cir. 1996). The requisite state of mind is one of subjective
recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at
985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122.
Chyatte first alleges he was denied medications for two months while
MCDF awaited receipt of his medical records. The undisputed facts are that
beginning on February 3, 2012, Chyatte received the following medications:
14

Mirtazapine (Remeron) 30 mg, Ranitidine 150 mg, and Meloxicam (Mobic) 7.5
mg. (Spectrum SUF, Doc. 38 at ¶ 9.) It is not clear from the record whether these
medications were prescribed by Spectrum officials or whether Chyatte brought
them with him when he was transferred to MCDF from another jail. Chyatte’s
February 9, 2012 grievance indicates that he brought approximately a one-month
supply of medications into MCDF with him. (Grievance, Doc. 59-5 at 2.)
Immediately prior to his incarceration in MCDF, Chyatte was incarcerated in
Florida and received care from Ocala Community Care. Spectrum’s progress
notes indicate that a review of the medical records from Ocala Community Care
showed that Chyatte completed a Prednisone taper on January 8, 2012, that he also
received Meloxicam (Mobic) 7.5 mg and Mirtazapine (Remeron) 30 mg, and that
no other medications were prescribed. (Spectrum SUF, Doc. 38 at ¶ 11.) No
medical records have been submitted to support this statement. Chyatte has filed a
one-page record from Ocala Community Care showing that on January 13, 2012
he was prescribed Remeron and Naproxen and received a four-day cycle of
Prednisone beginning on January 18, 2012. (Ocala medical record, Doc. 59-5 at
1.)
Chyatte’s Medication Administration Records from MCDF indicate that he

15

received Meloxicam (Mobic);4 and Ranitidine5 from February 3, 2012 until March
11, 2012. He received Mirtazapine (Remeron)6 from February 3, 2012 until April
20, 2012 and he was started on Neurontin (Gabapentin) on March 27, 2012. (Doc.
38-2 at 10.) He received Ibuprofen from February 5 through February 10, 2012.
(Doc. 38-2 at 8).
Defendant Stahl testified that Chyatte was seen on March 27, 2012 and
Meloxicam (Mobic) was stopped because Chyatte indicated it was ineffective.
(Stahl Affidavit, Doc. 38-2 at 4, ¶ 15.) But the medication administration record
seems to indicate that the Meloxicam was stopped on March 11, 2012 (possibly
because the medication ran out as there is a note on the medical record which
states: “Out of 3-11-2012”). (Medication Administration Record, March 2012,

4

Defendants represent that Meloxicam (Mobic) is a NSAID used to relieve
pain. (Spectrum SUF at ¶ 16.) Drugs.com indicates that Mobic (Meloxicam) is a
NSAID used to treat pain or inflammation caused by osteoarthritis or rheumatoid
arthritis. http://www.drugs.com/mobic.html accessed 8/25/2015.
5

The parties do not indicate why Chyatte received the drug Ranitidine.
Drugs.com indicates that Ranitidine is used to treat and prevent ulcers in the
stomach and intestines. It also treats conditions in which the stomach produces too
much acid, such as Zollinger-Ellison syndrome. Ranitidine also treats
gastroesophageal reflux disease (GERD) and other conditions in which acid backs
up from the stomach into the esophagus, causing heartburn.
6

Drugs.com indicates that Mirtazapine (Remeron) is an antidepressant used
to treat major depressive disorder. http://www.drugs.com/mirtazapine.html
accessed 9/1/2015.
16

Doc. 38-2 at 10.) Regardless, when Chyatte was seen on March 27, 2012,
Meloxicam was stopped and he was started on Neurontin (Gabapentin) 300 mg.
(Stahl Affidavit, Doc. 38-2 at ¶¶ 15-16.) Defendants represent the change was
made because Chyatte claimed Meloxicam (Mobic) was ineffective. Chyatte was
continued on these medications until April 20, 2012 when all of his medications
were discontinued. (Spectrum SUF, Doc. 38 at ¶ 20.)
Based upon a review of the record, it thus appears that Chyatte did not
receive pain medication from March 11, 2012 (when his Meloxicam ran out) until
March 27, 2012 when he was prescribed Neurontin–a period of approximately 16
days. Chyatte has presented no evidence to suggest that he complained about the
denial of Meloxicam during these 16 days, that his health was at risk during these
16 days, or that he suffered further injury. A short denial of medications because a
medication has run out and there being no evidence that a request for additional
medication was made, is insufficient to state a claim for deliberate indifference.
Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (where the prisoner is
alleging that delay of medical treatment evinces deliberate indifference, the
prisoner must show that the delay led to further injury).
Chyatte’s claim that he was denied Celebrex or even Prednisone (which was
not raised in Chyatte’s pleading) is insufficient to state a federal claim for
17

deliberate indifference to a serious medical need. Even if this was not the medical
care that Chyatte expected or wanted, the most that demonstrates is a difference of
opinion between medical providers. A difference of opinion between an inmate
and prison medical personnel—or between medical professionals—regarding
appropriate medical diagnosis and treatment is not enough to establish a deliberate
indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi v.
Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (a prison official acts with
deliberate indifference only if he or she knows of and disregards an excessive risk
to the prisoner’s health; negligence and a mere difference in medical opinion are
insufficient).
In order to prevail on this claim, Chyatte needed to present evidence
demonstrating “that the course of treatment the doctors chose was medically
unacceptable under the circumstances . . . and . . . that they chose this course in
conscious disregard of an excessive risk to plaintiff’s health.” Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). Chyatte
has not done so. Consequently, his claims regarding being denied Celebrex or
other drugs of his choice for the period of February 3, 2012 until April 20, 2012
will be denied.
There does, however, appear to be a genuine issue of material fact regarding
18

the discontinuation of all of Chyatte’s medications from April 20, 2012 until July
20, 2012. These medications were allegedly discontinued because Chyatte was
“cheeking” or failing to swallow medications. Chyatte denies he was cheeking.
Rather, Chyatte contends he filed a grievance on February 9, 2012 against
Spectrum for over-charging for medications and not providing him his prescribed
medications and Spectrum allegedly retaliated by lodging a false “cheeking”
allegation against him. (Chyatte Second Declaration, Doc. 59 at ¶ 90.) He states
he met with Spectrum’s PA on March 27, 2012 and was told he would not receive
Celebrex. Chyatte protested and threatened to hire an attorney. (Chyatte Second
Declaration, Doc. 59 at 10, ¶ 97.) According to Chyatte, his medications were
discontinued in response to his complaints about Defendants’ failure to provide
him with proper medical care.
There thus exists a genuine issue of material fact as to the objective prong
of the deliberate indifference claim; i.e., whether or not Chyatte’s medications
were discontinued in retaliation for voicing concerns about his medical treatment.
The Court recognizes that deference in the administration of a prison,
especially in light of the needs to preserve discipline and maintain internal
security, should be given. Norwood v. Vance, 591 F.3d 1062, 1067 (9th Cir.
2010). Thus, the practice of discontinuing pain medication for inmates accused of
19

“cheeking” may be in furtherance of such goals. Defendants cite to a number of
cases which have found that it is not deliberately indifferent to discontinue pain
medication as a consequence of “cheeking” that medication. But in many of the
cited cases, the medication being “cheeked” is one susceptible to abuse by the
inmate such as selling or sharing, the discontinuation is reviewed by a doctor, and
alternative medical treatment is at least considered. See Quiroga v. Green, 2014
WL 5471042 (E.D. Cal. October 17, 2014)(morphine discontinued after doctor
believed inmate was drug seeking and had a history of cheeking medications but
alternative (non-narcotic) medication was prescribed instead); Reyes v. Grounds,
2014 WL 2091343 (N.D. Cal May 19, 2014)(morphine discontinued after
“cheeking” incident but prescribed alternative pain medications); Todd v. Bigelow,
2012 WL 627965 (D. Utah February 24, 2012)(Defendants did not completely
withdraw all pain medications but instead tried to offer alternative medications
that presented less risk for abuse); Atakpu v. Lawson, 2008 WL 5233467, *11
(S.D.Ohio Dec.11, 2008) (“evidence submitted by plaintiff shows that the LECI
doctor ordered that the Ultram be discontinued … because of ‘cheeking’” but
inmate received alternative medications for pain); Shea v. Wheeler, 2001 WL
34376846, *6 (W.D.Wis. June 19, 2001) (holding that prison doctor’s decision to
discontinue inmate’s prescription for Ritalin based upon misuse, even after inmate
20

was found not guilty at a subsequent disciplinary hearing, did not constitute
deliberate indifference but there was an understanding that the inmate could ask
for a psychiatric evaluation at any time); Jones v. Ehlert, 704 F.Supp. 885,
888-890 (E.D.Wis. 1989) (no deliberate indifference found where prisoner’s
Valium was discontinued after sergeant at correctional institution accused prisoner
of palming off medication but inmate was seen daily in the prison outpatient clinic
during the week following the discontinuance of his medication and had only been
taking the Valium for two weeks).
In Chyatte’s case, Defendants discontinued a non-narcotic pain medication,
an anti-depressant, and an antacid. There is no indication that the decision to
discontinue all medications was reviewed by a doctor, that it was determined to be
medically safe, or that any alternatives were considered or offered. Most
concerning is Defendants did not address the discontinuation of the antidepressant. There is no indication in the record of the potential side effects of
such a discontinuation but Chyatte testified that following the abrupt cessation of
his medications on April 20, 2012 he became very ill, suffered intense,
debilitating, physical pain, his joints began to swell dramatically, he broke out in a
body-wide skin rashes, he could not sleep, he began to experience auditory and
visual hallucinations, he became paranoid, and thought the newspapers were
21

communicating with him. (Chyatte’s Second Declaration, Doc. 59 at ¶¶ 99-106.)
On this record, the Court cannot say that Defendants were not deliberately
indifferent to Chyatte’s serious medical needs when they abruptly discontinued
pain medications and an anti-depressant without consideration of the effects on
Chyatte, consideration of alternatives, or follow-up care.
If Spectrum and/or Missoula County had a custom, policy or practice of
discontinuing all medications as a consequence for “cheeking” without follow-up
or alternative care being offered, there is a genuine issue of material fact regarding
whether they violated Chyatte’s constitutional rights.
In addition, Chyatte contends Defendants did not address his denial of
mental health care claim. Defendants argue that such a claim was not raised.
However, in the Amended Complaint, Chyatte alleged that Spectrum’s failure to
employ a psychiatrist or psychologist was a deliberately indifferent policy.
(Amended Complaint, Doc. 9 at 14.) The record is full of examples where Chyatte
requested mental health care and Defendants response was that he had to arrange
that through his attorney. (Medical Requests, Doc. 59-2 at 2-4.) However, the
Court notes that as of August 23, 2012, Chyatte was representing himself in his
criminal case. See Chyatte v. State, DA 15-0111, Mt.S.Ct., Brief of Appellee filed
August 27, 2015 at p. 4. The Court finds that he sufficiently plead a denial of
22

mental health care claim.
Defendants Stahl, Trudeau, Spectrum, Missoula County, and Kowalski’s
motions for summary judgment will be denied with regard to Chyatte’s claim that
he was denied medications from April 20, 2012 through July 20, 2012 and his
denial of mental health care claims. The motions will be granted as to Chyatte’s
claim for denial of medications up until April 20, 2012 and as to Munsell.
III.

AMERICANS WITH DISABILITIES ACT CLAIM
Title II of the Americans with Disabilities Act of 1990, 42 U.S.C.§ 12101 et

seq. (ADA), provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected
to discrimination by any such entity.” 42 U.S.C. § 12132. To state a claim under
Title II of the ADA, the plaintiff must allege four elements: (1) the plaintiff is an
individual with a disability; (2) the plaintiff is otherwise qualified to participate in
or receive the benefit of some public entity’s services, programs, or activities; (3)
the plaintiff was either excluded from participation in or denied the benefits of the
public entity’s services, programs or activities, or was otherwise discriminated
against by the public entity; and (4) such exclusion, denial of benefits, or
discrimination was by reason of the plaintiff’s disability. Thompson v. Davis, 295
23

F.3d 890, 895 (9th Cir. 2002).
Although § 12132 does not expressly provide for reasonable
accommodations, the implementing regulations provide that “[a] public entity
shall make reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. §
35.130(b)(7). The duty to provide “reasonable accommodations” or “reasonable
modifications” for disabled people under Title II of the ADA arises only when a
policy, practice or procedure discriminates on the basis of disability. Weinreich v.
Los Angeles County MTA, 114 F.3d 976, 979 (9th Cir. 1997).
The provisions of the ADA and the Rehabilitation Act apply to law
enforcement and correctional facilities. Lee v. City of L.A., 250 F.3d 668, 691 (9th
Cir. 2001). The Supreme Court has ruled that a prisoner may state a Title II claim
based on “the alleged deliberate refusal of prison officials to accommodate [a
prisoner’s] disability-related needs in such fundamentals as mobility, hygiene,
medical care, and virtually all other prison programs[.]” U.S. v. Georgia, 546 U.S.
151, 157 (2006) (noting that plaintiff, a paraplegic prisoner, may be able to state a
Title II claim premised, inter alia, on his allegation that he could not turn his
24

wheelchair around in his cell).
Here, Chyatte claims he was not transported to and from court in a handicap
accessible vehicle that sufficiently accommodated his disabilities. Claims based
on a municipality’s failure to provide appropriate post-arrest transportation for
persons with disabilities are cognizable under the ADA. See, e.g., Gorman v.
Bartch, 152 F.3d 907, 916 (8th Cir. 1998) (wheel-chair bound plaintiff stated a
claim under the ADA and Rehabilitation Act against municipality for failure to
provide appropriate transportation in police van).
Chyatte presented testimony by declaration that when he arrived at MCDF
there was no “ADA-complaint” transportation at MCDF and his requests for ADA
compliant transportation were ignored. (Doc. 62 at ¶ 55.) On March 28, 2012, he
filed a grievance complaining that the lack of handicap accessible transportation
caused him pain and injury. (Doc. 62 at ¶ 57; March 28, 2012 Grievance, Doc. 621 at 13.) Captain Kowalski denied the grievance on June 17, 2012 citing “no
attempt at informal resolution.” Chyatte appealed the grievance on June 18, 2012
but received no response.
Chyatte alleges MCDF transported him in non-handicap accessible vehicles
on February 7, 2012, February 28, 2012, March 29, 2012, April 24, 2012, May 1,
2012, May 8, 2012, May 29, 2012 and March 13, 2013. (Doc. 62 at ¶ 65.) These
25

dates correspond with the transportation log produced by Defendants. (Doc. 46-2
at 1.) In his Amended Complaint, Chyatte alleges, “[t]o load Chyatte into the
transport vans MCDF officers would pick Chyatte up and throw him into the
transport van. This experience is painful and degrading for Chyatte, and
aggravates his Arthritis causing further loss of range of motion.” (Amended
Complaint, Doc. 9 at 5.)
Chyatte filed another grievance on July 28, 2012. On July 30, 2012, Chief
Detention Officer Mark Foss granted the grievance and agreed that MCDF would
provide him with handicap-accessible transportation from that point forward.
MCDF contracted with Medi-Cab to transport wheelchair-bound inmates on June
4, 2012. On August 7, 2012 and August 9, 2012, Medi-Cab was not available and
Chyatte made his court appearance via video-court. (Doc. 62 at ¶ 70.) After he
was convicted and sentenced, he was, however, transported to Montana State
Prison in a non-handicapped accessible vehicle. (Doc. 62 at ¶ 71.)7
Chyatte has presented sufficient evidence to create a genuine issue of
material fact regarding whether Defendants’ actions violated the ADA. And if the
Defendants did, it must be determined what relief is available to Chyatte. Title II

7

Chyatte testified in his deposition that he was transported to MSP in a
police cruiser. (Deposition, Doc. 43-3 at 6–deposition page 60, lines 6-10.)
26

of the ADA adopts the remedies provision of the Rehabilitation Act, 29 U.S.C. §
794a, which in turn adopts the remedies provision of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d et seq. In Duvall v. County of Kitsap, 260 F.3d
1124 (9th Cir. 2001), the Ninth Circuit stated that “[t]o recover monetary damages
under Title II of the ADA or the Rehabilitation Act, a plaintiff must prove
intentional discrimination on the part of the defendant.” Duvall, 260 F.3d at 1138
(citing Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998) (footnote
omitted)). The Court held that deliberate indifference is the appropriate standard
to use in determining whether intentional discrimination occurred. Id. “Deliberate
indifference requires both knowledge that a harm to a federally protected right is
substantially likely, and a failure to act upon that likelihood.” Id. at 1138 (citing
City of Canton v. Harris, 489 U.S. 378, 389 (1988)). In order to meet the second
element of the deliberate indifference test, a failure to act must be the result of
conduct that is more than negligent and involves an element of deliberateness. Id.
at 1139.
The record reflects that in 2012 Chyatte was able to ambulate with a cane
and he admitted in his deposition that he could stand and brace on things.
(Deposition, Doc. 43-3 at 6, deposition page 61, line 18.) Chyatte has failed to
establish that a genuine issue of material fact exists as to whether he was
27

completely unable to get into a vehicle, was paralyzed or completely unable to
move or at least get into a vehicle with assistance. Chyatte has simply not come
forward with sufficient evidence establishing the existence of genuine issue of
material fact as to whether Defendants were deliberately indifferent to Chyatte’s
need for accommodations. To the contrary, MCDF worked to resolve the issue by
contracting with a company to provide handicap accessible transportation.
Consequently, the Defendants are entitled to summary judgment with respect to
Chyatte’s claim for monetary damages under the ADA.
To the extent the Amended Complaint can be read as seeking injunctive
relief, the claim is moot because MCDF has contracted with a company to
provided transportation services for inmates in wheelchairs and Chyatte is no
longer incarcerated at MCDF. Dilley v. Gunn, 64 F.3d 1365, 1368–69 (9th Cir.
1995)(when an inmate has been transferred to another prison and there is no
reasonable expectation nor demonstrated probability that he will again be
subjected to the prison conditions from which he seeks injunctive relief, the claim
for injunctive relief should be dismissed as moot.)
Missoula County’s Motion for Summary Judgment will be granted as to
Chyatte’s ADA claim. While there may be a genuine issue regarding whether
there was a technical violation of the Act, Chyatte is not entitled to injunctive or
28

monetary damages.
IV. CONSTITUTIONAL CLAIMS
Defendants argue they are entitled to qualified immunity for their actions.
Government officials enjoy qualified immunity from civil damages unless their
conduct violates “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In determining
whether an officer is entitled to qualified immunity, the court must decide (1)
whether facts alleged or shown by plaintiff make out a violation of constitutional
right; and (2) whether that right was clearly established at the time of the officer’s
alleged misconduct. Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S.
194, 201 (2001). Courts are “permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Id. at
236. In resolving these issues, the court must view the evidence in the light most
favorable to plaintiff and resolve all material factual disputes in favor of plaintiff.
Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
The Court will first examine whether Chyatte has shown that any individual
Defendant violated a constitutional right with regard to the July and September
29

2012 incidents and if s o whether those rights were clearly established at the time
of the incident. The Court will then examine the liability of Missoula County.
A. July 2012 Incident
Count II of Chyatte’s Amended Complaint raises claims of conditions of
confinement and excessive use of force in violation of the due process clause of
the Fourteenth Amendment against Defendants Missoula County, Harris, Tackett,
and Jensen.8 The Court views the facts and inferences from them in the light most
favorable to Chyatte as the non-moving party. Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 474 U.S. 574, 587-88 (1986). In his statement of disputed
facts, Chyatte explains the incident in July 2012 as follows: On July 13, 2012,
Chyatte and five other inmates complained that MCDF refused to provide medical
and mental health care to inmates. Chyatte and these other inmates did not
threaten violence, did not destroy property, and did not threaten to destroy
property. Defendants presented evidence that Chyatte and the other inmates
refused to lock down but in a non-violent manner.
Shortly after this incident, a Disturbance Response Team (DRT) was sent
into the pod. Chyatte alleges this team threatened to shoot them with a bean-bag

8

Defendant Jensen did not waive service (See Doc. 15) and has not been
otherwise served. Defendant Jensen will be dismissed.
30

cannon and/or deploy stun grenades. Chyatte and the other five inmates were then
moved from their unit without further incident.
Chyatte was moved to a solitary confinement cell that was not handicapaccessible and his wheelchair became wedged between the cell’s door and the
toilet. Chyatte notified the officers but was told to “deal with it.” The officers
then turned off the lights in Chyatte’s cell leaving him wedged between the door
and toilet, unable to move, in complete darkness. Around midnight Chyatte
flooded the cell using the toilet. He was then moved to a new cell that was
handicap accessible. Defendants allege that Chyatte flooded this second cell as
well. Chyatte denies this allegation. He contends he was moved to a third cell
because the commotion caused by the DRT team had woken and agitated a
severely mentally ill man who began cursing Chyatte.
Regardless, Chyatte alleges that after being moved to a third cell he began
to experience symptoms of psychosis because he had been off his mental health
medications for several months. Convinced that MCDF officers were using the
camera in the cell to steal and record his thoughts, Chyatte covered the camera
with toilet paper. In response, MCDF officers turned off the water to Chyatte’s
cell and advised him the water would remain off until he uncovered the camera. In
a psychotic state and fearing for his safety, Chyatte did not uncover the camera for
31

the rest of the night. During this time, he requested and was refused drinking
water. Chyatte asserts that sometime the next morning Sgt. Stewart brought a
group of officers to Chyatte’s cell door and threatened to shoot Chyatte with a
taser unless he placed his hands through the food-hatch of the cell door. Chyatte
claims he complied and Stewart handcuffed him to the cell door, then yanked the
door open with Chyatte chained to it causing him substantial pain.9 Officers then
entered the cell and removed the toilet paper.
Chyatte alleges he again asked for drinking water and asked to speak with a
mental health professional but Stewart and the other officers ignored his requests.
Chyatte was returned to his cell with his water remaining off. Purportedly still in a
psychotic state, Chyatte continued to believe the in-cell camera was a threat and
therefore threw his feces at the camera. Accordingly to Chyatte, Officer Jackson
came to the door, taunted him, denied his request for water and mental health care,
and advised him he would not be given drinking water until he uncovered the
camera. Chyatte claims he continued to request drinking water but to no avail.
At some point, Supervising Officer Tackett told Chyatte that if he would
9

Stewart’s incident report indicates that “Chyatte placed his hands through
the food hatch. I [Stewart] placed on [sic] set of handcuffs around his left writs
and secured the other end to the cell door handle. Officer Jackson gave me a set of
handcuffs which I placed on both wrist of inmate Chyatte. Once secured I had the
door opened and inmate Chyatte rolled out with the door.”
32

clean the feces from the camera and the wall he would receive drinking water but
Chyatte did not comply. Chyatte asserts that in all he was denied drinking water
from approximately 2:00 a.m. on July 14, 2012 until 12:45 p.m. on July 15, 2012.
(Chyatte’s Statement of Disputed Facts (SDF), Doc. 61 at 16-21.)
Defendants have presented somewhat conflicting testimony stating that
although Chyatte’s water was initially turned off, it was turned back on sometime
prior to 7:00 a.m. but then was turned off again after Chyatte allegedly flooded the
second cell. Stewart testified that during the referenced time Chyatte was placed
on sack lunches and given an hour out of his cell when he requested it. (Stewart
Aff, Doc. 45 at 6, ¶ 24.)10 Stewart also testified that Chyatte was offered drinking
water throughout the day of July 14 (Stewart Aff, Doc. 45 at 6, ¶ 25) but there is
no indication of this on the MCDF activity logs for July 14 and 15, 2012.11
10

Although Stewart’s Affidavit indicates Chyatte was given an hour out and
the pass down log indicates that Chyatte requested an hour out (Doc. 45-2 at 2),
there is nothing in the July 14, 2012 Activity log to indicate that Chyatte was
given an hour out. The Log does make note of each time other inmates were given
an hour out.
11

Chyatte makes general allegations of being denied food and mental health
care but in his Amended Complaint, his statement of disputed facts and in his
declaration there is no statement regarding being denied food during this incident.
There is an indication on the Commander’s Log (Doc. 44-3 at 4) that Chyatte
threw his food tray at lunch on July 14, 2012 (which Chyatte denies) and he did
not receive dinner because there was a large amount of feces on the food hatch. Id.
The Court has limited its examination of this claim to Chyatte’s allegation that he
33

Stewart also testified that at 9:00 a.m. on July 15 Chyatte’s running water was
turned on for 20 minutes to allow the cell to be cleaned. (Activity Log, Doc. 45-5
at 1.) Chyatte’s sink water was turned on at 9:36 a.m. on July 15, 2012. (Activity
Log, Doc. 45-5 at 2.) He was moved to a different cell at 12:45 p.m. on July 15
and at 1:30 p.m. was allowed an hour out and allowed to shower at 1:24 p.m..
Chyatte refused all three meals on July 15. (Pass Down Log Unit 2, Doc. 45-6.)
With respect to a pretrial detainee’s conditions of confinement claim under
the Fourteenth Amendment, the Ninth Circuit applies the standard set forth in
Farmer v. Brennan, 511 U.S. 825 (1994). See Clouthier v. County of Contra
Costa, 591 F.3d 1232, 1243 (9th Cir. 2010)(noting that neither the Ninth Circuit
“nor the Supreme Court have departed from the standard set forth in Bell and
Farmer for considering pretrial detainees’ claims that government officials
violated their Fourteenth Amendment rights by failing to prevent harm”); Castro
v. County of Los Angeles, ___ F.3d ___, 2015 WL 4731366 (9th Cir. August 11,
2015)(Clouthier remains good law after Kingsley v. Hendrickson, ___ U.S. ___,
135 S.Ct. 2466, ___ L.Ed.2d ___ (June 22, 2015)).
The Constitution does not mandate that prisons be comfortable. Rhodes v.
Chapman, 452 U.S. 337, 349 (1981). Nor does it require correctional facilities to
was denied drinking water for 37 hours.
34

provide every amenity that a prisoner might find desirable. Hoptowit v. Ray, 682
F.2d 1237, 1246 (9th Cir. 1982). But the Constitution will not permit inhumane
prison conditions. See Farmer, 511 U.S. at 832. “Prison officials have a duty to
ensure that prisoners are provided adequate shelter, food, clothing, sanitation,
medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
2000). “The circumstances, nature, and duration of a deprivation of these
necessities must be considered in determining whether a constitutional violation
has occurred. ‘The more basic the need, the shorter the time it can be withheld.’ ”
Id. (citing Hoptowit, 682 F.2d at 1259).
Defendants argue that the standard set forth in Whitley v. Albers, 475 U.S.
312 (1986) applies because this situation involved a disciplinary action necessary
to maintain the safety and security of the institution. The Whitley court held that
in a situation where prison officials are attempting to restore discipline and order
in the facility, the standard is whether or not the officials acted “maliciously and
sadistically for the very purpose of causing harm.” Id. at 320-321.
There are several problems with Defendants’ argument. First, this is a
conditions of confinement claim, not a claim of excessive force as in the Whitley
case. Second, Chyatte was confined in his cell and the only disciplinary concerns
were that he was covering his camera and window. This is not a situation where a
35

riot was ongoing as in Whitley. Third, Chyatte was a pretrial detainee, not a
convicted prisoner. As the United States Supreme Court recently stated, the
Whitley case involved,
excessive force claims brought by convicted prisoners under the
Eighth Amendment’s Cruel and Unusual Punishment Clause, not
claims brought by pretrial detainees under the Fourteenth
Amendment’s Due Process Clause. The language of the two Clauses
differs, and the nature of the claims often differs. And, most
importantly, pretrial detainees (unlike convicted prisoners) cannot be
punished at all, much less “maliciously and sadistically.”
Kingsley, 135 S.Ct. at 2475.
The Court appreciates the “practical importance of taking into account the
legitimate safety-related concerns of those who run jails” Id., but under no
circumstances would Defendants be allowed to punish Chyatte. The Whitley
standard does not apply to Chyatte’s conditions of confinement claim.
Chyatte testified that he was denied drinking water for approximately 34
hours. Although there is some indication in the record that the water was turned
on for a brief period of time at 9:00 a.m. on July 15, 2012, that would still be 31
hours without drinking water. There is a genuine issue of material fact regarding
whether Defendant Tackett was deliberately indifferent to Chyatte’s basic human
needs July 14, 2012 to July 15, 2012.
Chyatte alleges Jail Manager Harris responded to Chyatte’s grievance after
36

this incident stating, “DOII Tackett was only trying to get you to clean feces from
the window of your cell” maintaining that the deprivation of water was justified.
Jail Manager Harris is a supervisory official at MCDF. In limited circumstances a
supervisor’s subsequent “ratification” of another’s conduct can form the basis for
liability under § 1983. See Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th
Cir. 1991); Logan v. City of Pullman Police Dept., 2006 WL 1148727, *2 (E.D.
Wash. 2006) (citing Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003), rev’d
on other ground, 543 U.S. 194 (2004)). The decision to ratify specific conduct,
however, must approve both the subordinate’s decision and the basis for it, and the
ratification decision must be “the product of a ‘conscious, affirmative, choice’ to
ratify the conduct in question.” Haugen, 351 F.3d at 393. It must be a decision to
ratify unconstitutional conduct. Logan, 2006 WL 1148727, *4. Importantly, the
circumstances of the ratification must also demonstrate that the supervisor had
previously set in motion acts of others which caused the others to inflict a
constitutional injury. Larez, 946 F.2d at 645–46. There is a genuine issue of
material fact regarding the liability of Jail Manager Harris.
B. September 2012 Incident
1. Failure to Exhaust
Chyatte alleges he was placed on suicide watch after the September 19,
37

2012 incident and was denied access to grievances. After he was released from
suicide watch, he states he filed a grievance regarding the use of force on
September 19, 2012 but it was ignored. Defendants retort that Chyatte failed to
exhaust his administrative remedies regarding his September 2012 excessive force
claim. Thus, there is a genuine issue of material fact regarding whether or not
Chyatte grieved this issue. The motion for summary judgment will not be granted
on these grounds.
2. Facts
Many of the facts relating to the September 19, 2012 incident are
undisputed. For example, Chyatte does not dispute Defendants’ evidence that
Chyatte started the day by again covering his camera and cell door with paper
inhibiting officers from visually observing Chyatte in his cell. During breakfast
pass, Chyatte started throwing paper into the dayroom and yelling at officers.
Later, Defendant Stewart states that Chyatte defecated on the floor and smeared
the feces over the camera and the cell door windows thus obscuring the officers
view of Chyatte. Chyatte does not dispute these allegations in his statement of
disputed facts.
At approximately 1:00 p.m., Officer Lee-Rye informed Stewart that he
believed Chyatte was going to harm himself. In his declaration, Chyatte stated he
38

did not believe he threatened self-harm (Declaration, Doc. 62 at ¶ 125), but later
admitted in his deposition that he may not recall threatening to harm himself.
(Deposition, Doc. 66-3 at 2, deposition page 84, lines 19-22.) In light of the threat
to harm himself and because the officers could not monitor the cell because the
camera and window were covered in feces, Stewart and five other officers
gathered outside Chyatte’s cell to conduct a cell extraction. According to
Defendant Stewart’s incident report the officers entered the pod at approximately
2:00 p.m., instructed Chyatte to come to the food hatch to “cuff up” three to four
times but received no response. Stewart then deployed OC spray into the cell.
After about 5 to 10 seconds, Stewart states that Chyatte said he was done and
coming to the cell door. Chyatte stuck his hands through the food hatch on his cell
door and he was again chained to the cell door. He claims he was dragged through
the cell door when it was jerked open which caused him great pain.12
After Chyatte was outside the cell, but before he was decontaminated from
the OC spray, he was placed in a restraint chair and a spit hood was placed over
his head. Chyatte contends, and it is not disputed by Defendants, that he never
12

Officer Wilson, one of the officers assisting Stewart in removing Chyatte
from his cell, stated in a supplemental report that after handcuffs were placed on
Chyatte, he retained a grip on the handcuffs and the cell door was opened.
Chyatte was secured in the restraint chair and a spit hood was placed on him.
(Doc. 45-8 at 1.)
39

attempted to spit on the officers, he did not threaten to spit on the officers, he did
not act aggressively toward the officers, and he did not threaten the officers.
Officers then wheeled Chyatte in the restraint chair to the vehicle sally port
and began to spray him with a hose but left the spit hood on his head. Chyatte
alleges he screamed several times that he could not breathe because the hood was
filling with water.13 Chyatte contends the officers repeatedly submerged his head
under water until one officer said: “That is enough” and pulled the bag away from
his nose and mouth.
Chyatte was subsequently taken to the booking area of MCDF, where two
officers came to dry him off and lift him from the restraint chair because he was
purportedly too weak and exhausted to stand. But according to Chyatte, when the
two officers tried to put him in dry clothes, Captain Kowalski ordered them to
leave him in the wet clothes and place the spit hood back over his nose and mouth.
Chyatte contends an attending nurse wanted him taken from the restraint chair

13

Officer Vaughn’s statement seems to corroborate Chyatte’s allegation that
the officers began to spray him with water while the spit hood was still on his
head. Vaughn’s statement says, “[i]n the sally port the water was turned on and
Inmate Chyatte said he did not want to go under the water. Officer Wilson
advised him that he needed to go under the water to wash all of the OC spray off.
As the water cascaded over Inmate Chyatte he yelled that he could not breath. We
removed the spit hood he was wearing so he would not feel as though he could not
breath.” (Doc. 45-8 at 3.)
40

because of his blood pressure and the fact his lips were blue and he was shivering,
but that Kowalski refused to allow him to be released from the restraint chair.
Chyatte alleges he was left chained to the restraint chair, in wet clothes, with a bag
over his head from approximately 12:00 p.m. until after 7:00 p.m. or at least seven
and a half hours. According to Officer Lee-Rye’s supplemental report, Chyatte
was placed in the restraint chair at 2:03 p.m. (Doc. 45-8 at 4) which coincides with
the time of the cell extraction as indicated in Stewart’s incident report (Doc. 45-7.)
According to Defendants’ restraint log, Chyatte was removed from the chair at
7:10 p.m.. (Doc. 45-9 at 2.)14
Chyatte alleges that after being released from the restraint chair he was in
pain, could not move his arms, and had pain and stiffness in his back. Throughout
his time in the restraint chair, he claims did not threaten the officers or act
aggressively toward them.
3. Standard
Defendants point out that the Ninth Circuit looks at both the due process
clause and the Fourth Amendment in reviewing claims by pre-trial detainees.

14

Defendants argue that Chyatte was only in the restraint chair for four hours
based on the 10 minute restraint log which begins at 2:40 p.m. But the undisputed
evidence indicates Chyatte was placed in the restraint chair immediately after the
2:00 p.m. cell extraction.
41

(Msla Brief, Doc. 42 at 12, n.2.) After completion of briefing in this case, the
United States Supreme Court clarified in Kingsley v. Hendrickson, 135 S.Ct. 2466
(June 22, 2015) that pretrial detainee suits for excessive force arising under the
Fourteenth Amendment are properly analyzed using an objective, not subjective,
standard. Specifically, the Supreme Court held “that a pretrial detainee must show
only that the force purposely or knowingly used against him was objectively
unreasonable.” Id. at 2473. Whether the Court applies the Fourteenth
Amendment standard or the Fourth Amendment standard, the outcome is now the
same—Chyatte’s claim is to be analyzed using an objectively reasonable standard,
without regard to the subjective intent of the Defendants. In light of Kingsley,
under either amendment, the court would employ the same objective test for
Chyatte’s claims. Id. at 2472–73.
Therefore, in order to establish excessive force, a pretrial detainee must
show that the force purposely or knowingly used against him was objectively
unreasonable. Kingsley, 135 S.Ct at 2473. A court cannot apply this standard
mechanically. Id. “Rather, objective reasonableness turns on the facts and
circumstances of each particular case.” Id. (citation and internal quotation marks
omitted). “A court must make this determination from the perspective of a
reasonable officer on the scene, including what the officer knew at the time, not
42

with the 20/20 vision of hindsight.” Id. “A court must also account for the
‘legitimate interests that stem from [the government’s] need to manage the facility
in which the individual is detained,’ appropriately deferring to ‘policies and
practices that in th[e] judgment’ of jail officials ‘are needed to preserve internal
order and discipline and to maintain institutional security.’ “ Id. (quoting Bell v.
Wolfish, 441 U.S. 520, 540 (1979)).
“Considerations bearing on the reasonableness or unreasonableness of the
force used include: the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the security
problem at issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting.” Kingsley, 135 S.Ct 2473. The Supreme Court
held that this list is not meant to be exhaustive and is merely illustrative of the
types of objective circumstances potentially relevant to a determination of
excessive force. Id. Kingsley also reaffirms that pretrial detainees cannot be
subjected to “the use of excessive force that amounts to punishment,” id. (quoting
Graham, 490 U.S. at 395 n. 10) precisely because they “cannot be punished at all.”
Id. at 2475.
In light of this standard and the facts taken in the light most favorable to
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Chyatte, the excessive force claims with regard to the incident on September 19,
2012 will proceed. Taking the largely undisputed facts in the light most favorable
to Chyatte, he had been taken off all medication including but not limited to an
anti-depressant for five months. This was the second incident in which he was
acting out by defecating in his cell and using his own feces to cover the camera
and windows. Chyatte contends he was experiencing psychosis. Defendants
never provided Chyatte with any mental health treatment during this period of
time. The apparent reason for the cell extraction was because Chyatte threatened
to harm himself and the officers could not watch him. Although Chyatte initially
was non-compliant by not coming to the cell door to cuff up as instructed, after the
initial use of OC spray, there is no indication that he resisted in anyway. Despite
the stated purpose for the cell extraction (protection from self harm), Chyatte was
strapped to a restraint chair. Despite his not spitting or attempting to spit on
anyone, a spit hood was placed over his head after he was contaminated with OC
spray. Despite the stated purpose of spraying Chyatte to decontaminate him from
the pepper spray, the officers sprayed him down with the spit hood on so that he
could not breathe. Aside from the initial use of OC spray, there appears to be little
need for the use of force and the force utilized (five hours in a restraint chair, a
spit hood, and sprayed with water with a spit hood) seems extreme.
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Chyatte testified that his body was in extreme pain after being left in the
chair for so long, he could not breathe, and could not move his arms. A
reasonable juror could conclude that these actions were done to punish Chyatte for
messing up his cells. Any form of punishment on a pretrial detainee is
unconstitutional. Kingsley, 135 S.Ct at 2473. There are genuine issues of material
fact regarding whether or not Defendants violated Chyatte’s clearly established
constitutional rights during the September 19, 2012 incident. It was clearly
established in 2012 that officers may not punish pretrial detainees. The facts
strongly suggest that this is what was done to Chyatte. Therefore, the individual
defendants are not entitled to qualified immunity and their motion for summary
judgment will be denied.
4. Missoula County
Municipalities may be held liable as “persons” under 42 U.S.C. § 1983, but
not for the unconstitutional acts of their employees based solely on respondeat
superior. Monell v. Dept. of Social Services of New York, 436 U.S. 658, 691
(1978). Rather, a plaintiff seeking to impose liability on a municipality under §
1983 is required “to identify a municipal ‘policy’ or ‘custom’ that caused the
plaintiff’s injury.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997)
(citing Monell, 436 U.S. at 694; Pembaur v. Cincinnati, 475 U.S. 469, 480–81
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(1986); and City of Canton v. Harris, 489 U.S. 378, 389 (1989)). Thus, to state a
claim under Section 1983, a plaintiff must allege: (1) that the plaintiff possessed a
constitutional right of which he was deprived; (2) that the municipality had a
policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s
constitutional rights; and (4) that the policy is the moving force behind the
violation. Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th
Cir. 1997). A Monell claim can take one of three forms: (1) when official policies
or established customs inflict a constitutional injury; (2) when omissions or
failures to act amount to a local government policy of ‘deliberate indifference’ to
constitutional rights; or (3) when a local government official with final
policy-making authority ratifies a subordinate’s unconstitutional conduct.
Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249–50 (9th Cir. 2010)).
Chyatte presented two situations wherein he, as an individual with mental
health issues, was mistreated allegedly based upon his mental health problems. He
also presented a number of other incidents in which other inmates with mental
health problems were abused and/or mistreated while in MCDF. (Declaration,
Doc. 62 at ¶¶ 160-180.) In addition, he has presented evidence that the County did
not employ or contract with a mental health professional for the treatment of
inmates with mental health inmates and in Chyatte’s case they discontinued mental
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health medications without consulting a mental health professional or possibly
even a doctor. There is a genuine issue of material fact regarding whether
Missoula County had a custom, policy or practice of mistreating inmates with
mental health problems.
Missoula County also argues that it is entitled to qualified immunity. (MSJ,
Doc. 42 at 12.) It is well established that qualified immunity is not available to
municipalities. Owen v. City of Independence, 445 U.S. 622, 657 (1980). The
County’s motion for summary judgment will be denied.
V. MOTION TO COMPEL
On October 21, 2014, this Court issued a Scheduling Order requiring all
motions to be fully briefed on or before May 1, 2015. (Doc. 21.) As such, any
motion to compel would have had to have been filed at least fourteen days prior to
that deadline or at the very latest April 17, 2015. Chyatte’s motion to compel was
not filed until April 30, 2015.
Chyatte did not obtain leave of Court to amend the scheduling order upon a
showing of “good cause” as required under Fed. R. Civ. P. 16(b)(4). Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (citing Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992)). Additionally,
the Scheduling Order entered October 21, 2014, provides that a continuance of the
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“deadlines will not be granted, absent compelling reasons[]” which Chyatte has
not presented. (Doc. 21 at 2.) Therefore, his motion is untimely and will be
denied.
VI. ELECTRONIC FILING
On July 17, 2015, Chyatte wrote a letter to the Clerk of Court inquiring
whether he has to provide a paper copy of his filings to all the parties given that
his documents are electronically filed with the Court. The Court will allow the
parties an opportunity to object to his request and if no objection is made, Chyatte
may complete service of his documents by serving them on the Clerk of Court
only.
Based upon the foregoing, the Court issues the following:
ORDER
1. The Spectrum Defendants’ Motion for Summary Judgment (Doc. 36) is
granted as to FNP Munsell and as to Chyatte’s claims of denial of Celebrex and
other medications from February 3, 2012 until April 20, 2012. The motion is
denied as to Defendants Spectrum Medical, Tim Stahl, and PA-C Trudeau on all
other claims.
2. The Missoula County Defendants’ Motion for Summary Judgment (Doc.
41) is granted as to Chyatte’s ADA claim and his claim that he was denied
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Celebrex and other medications from February 3, 2012 until April 20, 2012. The
motion is denied as to all other claims.
3. Chyatte’s Motion to Compel (Doc. 54) is denied.
4. Defendant Jensen is dismissed because he has never been served in this
action.
5. Unless Defendants object within seven (7) days of the date of this
Order, Chyatte need not serve on Defendants’ counsel the materials he files with
the Court because Defendants’ counsel will be served via the electronic filing
system. Chyatte will, however, be required to serve all other documents not filed
with the Court upon counsel by first-class mail. Defendants must, however, serve
on Chyatte a complete copy of everything it submits to the Court.
DATED this 21st day of September, 2015.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate

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