Holtz v. Phillips et al
Filing
127
ORDER DENYING PLAINTIFFS MOTION TO STRIKE AND MOTION FOR TEMPORARY RESTRAINING ORDER. Mr. Holtzs Motion to Strike ECF No. 119 is DENIED. Mr. Holtzs Motion for Temporary Restraining Order/Preliminary/Prospective Relief, ECF No. 120 is DENIED. Def endant DOC shall file no later than 9/12/2014, a declaration from PAC Gregory Schaller regarding his contact or lack of contact with Mr. Holtz; Mr. Holtz may file a declaration responding to the subjects discussed by PAC Schaller no later than 9/30/2014. Signed by Senior Judge Edward F. Shea. (LLH, Courtroom Deputy)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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No.
RONALD HOLTZ,
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Plaintiff,
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4:CV-14-5018-EFS
ORDER DENYING PLAINTIFF’S MOTION
TO STRIKE AND MOTION FOR
TEMPORARY RESTRAINING ORDER
v.
JOELLA PHILLIPS, Physician
Assistant; PETER BECK, MSW, M-Div,
Mental Health Program Manager;
WASHINGTON DEPARTMENT OF
CORRECTIONS, SECRETARY BERNARD
WARNER, ACTING ASSISTANT SECRETARY
KEVIN BOVENKAMP, DEPUTY DIRECTOR
SCOTT R. FRAKES, (DOC)
MANAGER/MEDICAL DIRECTOR ROY
GONZALEZ, (DOC) HEALTH CARE MANAGER
MARY JOE CURREY, COYOTE RIDGE
CORRECTIONS CENTER, SUPERINTENDENT
JEFFREY UTTEHT, HEALTH CARE MANAGER
DARREN CHLIPALA, DR. B. RODRIGUEZ,
PSYCHIATRIST DR. MICHAEL REZNICEK,
WASHINGTON STATE PENITENTIARY,
SUPERINTENDENT, STEVEN SINCLAR,
MEDICAL DIRECTOR JAMES EDWARDS, DR.
F. SMITH, MENTAL HEALTH PHYSICIAN
MELANIE HOWARD, AMERICAN
DISABILITIES SPECIALIST HOLLY
DE/CAMBRE (DOC), in official and
individual capacities, CHIEF
MEDICAL OFFICER G. STEVEN HAMMOND,
PH.D.,
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Defendants.
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Before
the
Court
are
two
motions
filed
by
Plaintiff
Ronald
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Holtz: 1) Motion to Strike, ECF No. 119, and 2) Motion for Temporary
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Restraining Order/Preliminary/Prospective Relief, ECF No. 120.
ORDER - 1
Both
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motions are opposed by Defendants.
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relevant
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motions.
authority,
the
Court
is
After reviewing the record and
fully
informed
and
denies
both
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First, Mr. Holtz asks the Court to strike Defendants’ July 2,
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2014 Amended Answer, ECF No. 110, because it was filed more than
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twenty-one
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permission.
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Corrections Defendants (who were unserved at that time) leave to file
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an answer within sixty days after a courtesy copy of the Complaint was
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mailed to the Washington State Attorney General’s Office, ECF No. 68,
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and the Amended Answer was filed within this time frame, the Court
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denies Mr. Holtz’s Motion to Strike.
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days
after
service
of
process,
without
the
Court’s
Because the Court previously gave the non-Department-of-
Second, the Court declines to issue the requested preliminary
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relief.
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Department of Corrections (DOC) to 1) release him from the Intensive
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Management Unit (IMU), 2) refrain from further retaliatory actions, 3)
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provide him with a medical wedge, and 4) restore his release date to
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January 26, 2015.
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that his access to the law library and copies of legal documents has
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been denied, his medical conditions require a medical wedge, medical
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personnel have refused to see him, and his classification level and
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release date have been negatively adjusted in retaliation for his
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pursuit of his legal and medical rights.
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Many
Mr.
of
Holtz
requests
the
Court
require
Washington
State
In support of these requests, Mr. Holtz declares
these
requests
pertain
to
classification
matters:
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matters that do not relate to the claims asserted by Mr. Holtz in his
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Complaint, which seeks relief for violations of his Eighth Amendment
ORDER - 2
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right to be free from cruel and unusual punishment in that Defendants
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have been deliberately indifferent to his medical needs.
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the Court declines to address Mr. Holtz’s request that he be released
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from the
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dependent upon his inmate classification level.
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Mines v. United States, 325 U.S. 212, 220 (1945) (recognizing that the
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court must limit injunctive relief to matters that are before the
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court).
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As
IMU and his release date be
to
the
matters
that
pertain
Accordingly,
restored, actions
to
this
that are
See De Beers Consol.
lawsuit,
i.e.,
Mr.
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Holtz’s claim that he must have a medical wedge and he has been denied
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access to his legal materials, the prison library, and ability to make
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legal telephone calls, the Court finds that Mr. Holtz failed to show
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that he is entitled to this extraordinary prospective relief.
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Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 747 (9th Cir.
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2014) (recognizing that a preliminary injunction is an extraordinary
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remedy).
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indicates that Mr. Holtz is seen at Stafford Creek Corrections Center
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by Dr. Strick or another doctor as needed, and that he is seen by
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other medical personnel on a more regular basis if he submits a kite
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specifically requesting sick call.
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provided a wedge, Mr. Holtz was given the opportunity to ask Sergeant
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Slvaggi for an extra blanket to elevate his upper body.
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Offender’s Kite, ECF No. 120-2.
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rather than a wedge, is sufficient to prop his upper body while he
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sleeps to reduce the symptoms he experiences from his gastroesophageal
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reflux disease and other medical conditions.
ORDER - 3
See
Beginning with Mr. Holtz’s medical concerns, the record
Although Mr. Holtz has yet to be
July 1, 2014
Mr. Holtz disagrees that a blanket,
However, a difference in
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medical opinion regarding treatment does not amount to deliberate
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indifference to his medical needs.
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242 (9th Cir. 1989).
The
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Court
is
concerned
See Sanchez v. Vild, 891 F.2d 240,
with
Mr.
Holtz’s
statement
that
PAC
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Gregory Schaller refused to see him, ECF No. 120 at 5.
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Dr. Steven Hammond, who is DOC’s Chief Medical Officer, advised that
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he does not recall an incident where PAC Schaller refused to see Mr.
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Holtz.
ECF No. 126 ¶ 5.
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for
inappropriate
an
In response,
To ensure that such an event did not occur
reason,
and
to
help
ensure
that
Mr.
Holtz
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receives appropriate medical care, the Court requires DOC to file a
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declaration from PAC Schaller regarding any such alleged incident.
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This declaration shall be filed no later than September 12, 2014; Mr.
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Holtz is given leave to file a declaration responding to the subjects
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discussed by PAC Schaller no later than September 30, 2014.
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assuming at this time that PAC Schaller refused to see Mr. Holtz on
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one
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sufficiently serious harm to his health and safety.
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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (“Under 42 U.S.C. § 1983,
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to
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treatment, an inmate must show deliberate indifference to serious
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medical needs.”) (internal quotation removed)).
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the Court denies Mr. Holtz’s request for prospective medical relief.
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occasion,
maintain
In
Mr.
an
Holtz
Eighth
addition,
the
failed
to
Amendment
record
show
claim
reflects
that
based
that
this
on
Yet, even
refusal
caused
See Jett v.
prison
medical
For these reasons,
DOC
responds
in
a
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reasonable time and manner to Mr. Holtz’s many Offender’s Kites and
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grievances.
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requests
ORDER - 4
for
Mr. Holtz failed to show that DOC’s responses to his
legal
telephone
calls
impermissibly
infringe
on
his
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ability to pursue this lawsuit.
Rather, the record reflects that on
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May 30, 2014, DOC staff advised him that staff would place Mr. Holtz
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at a location that he could make a legal telephone call the next day
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at 9:00 a.m.; on June 13, 2014, Mr. Holtz was advised that he could
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work with his unit sergeant and floor staff as outlined in the IMU
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handbook to place legal telephone calls; on June 15, 2014, Mr. Holtz
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was reminded to review the IMU handbook for specific directions as to
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how to schedule a legal call; and again on June 16, 2014, Mr. Holtz
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was reminded to read the IMU handbook at page 9 regarding placing
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legal telephone calls.
ECF No. 120-2.
There is no evidence that Mr.
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Holtz’s ability to obtain copies of legal documents or access law
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library materials is impermissibly hindered.
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U.S. 343, 351 (1996).
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being denied “meaningful access to the court[].”
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U.S. 817, 823 (1977).
See Lewis v. Casey, 518
In summary, Mr. Holtz failed to show that he is
Bounds v. Smith, 430
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For the above-given reasons, IT IS HEREBY ORDERED:
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1.
Mr. Holtz’s Motion to Strike, ECF No. 119, is DENIED.
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2.
Mr.
Motion
for
Temporary
Restraining
Order/
Preliminary/Prospective Relief, ECF No. 120, is DENIED.
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Holtz’s
3.
Defendant DOC shall file no later than September 12, 2014,
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a
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contact or lack of contact with Mr. Holtz; Mr. Holtz may
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file a declaration responding to the subjects discussed by
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PAC Schaller no later than September 30, 2014.
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declaration
IT IS SO ORDERED.
from
PAC
Gregory
Schaller
his
The Clerk’s Office is directed to enter this
Order and forward a copy to Plaintiff and counsel.
ORDER - 5
regarding
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DATED this
28th
day of August 2014.
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_____
s/Edward F. Shea ___________
EDWARD F. SHEA
Senior United States District Judge
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Q:\EFS\Civil\2014\5018.tro.strike.lc1.docx
ORDER - 6
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