Fischer v. Kenney

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATION; respondent's motion for summ jgm is granted and case is dismissed with prejudice by Judge John C Coughenour. (RS)cc Fischer

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THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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FREDERICK J. FISCHER, III,

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Petitioner,

Case No. C10-1088-JCC
ORDER

v.
DAVID KENNEY,

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Respondent.

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The Court, having reviewed Petitioner’s complaint (Dkt. No. 1), Respondent’s motion

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for summary judgment (Dkt. No. 13), the report and recommendation of U.S. Magistrate Judge

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James P. Donohue (Dkt. No. 24), Petitioner’s objections thereto (Dkt. No. 32), and the

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remaining record, adopts the report and recommendation. The Court grants Respondent’s

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motion for summary judgment on the grounds of qualified immunity and alternatively on the

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merits and dismisses Petitioner’s action with prejudice.

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The Court must make a de novo determination of those portions of a magistrate judge’s

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report or proposed findings or recommendations to which a party objects. 28 U.S.C.

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§ 636(b)(1).

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ORDER, C10-1088-JCC
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I.

PETITIONER’S OBJ ECTIONS

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Petitioner objects that an issue of material fact exists regarding whether he suffers from

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narcolepsy. Petitioner has put forth no evidence to validate his claim that he was diagnosed in

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1965, and Respondent, after investigation, was unable to locate any records of the alleged sleep

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study. (Dkt. No. 14 at 5.) Petitioner’s bare assertion is insufficient to create more than a

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“metaphysical doubt” regarding a material fact. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986) (holding that the nonmovant must do more than simply

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raise metaphysical doubt about the material facts).

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Likewise, Dr. Hammond’s statement that narcolepsy must be confirmed by a sleep

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study fails to create an issue of material fact. The statement only pertained to confirming a

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diagnosis of suspected narcolepsy. (Id. at 3.) Petitioner has shown no symptoms of narcolepsy

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and therefore does not need a confirming diagnosis. (Id. at 4, 5.) Additionally, the fact that two

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primary-care providers referred the sleep study to the review board does not create an issue of

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material fact. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (holding that one doctor’s

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recommendation of surgery was merely a differing opinion on treatment and did not require

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adherence).

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Second, Petitioner objects to the Report’s finding that Respondent was not deliberately

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indifferent to his condition. Prisoners are afforded all healthcare that is medically necessary.

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Wash. Admin. Code § 137-91-010. Contrary to Petitioner’s assertion, sleep disorders are

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covered by the Department of Corrections. They are Level 2 care, which are examined on a

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case-by-case basis and are covered in some circumstances. (Dkt. No. 14 at 3; Dkt. No. 14-1 at

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30.) In the absence of any documented symptoms, denial of further testing and medication is

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not indifferent. Respondent’s denial of medication is merely a difference in treatment and, as

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such, does not rise to the level of deliberate indifference. See Sanchez, 891 F.2d 242 (holding

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that a difference in opinion regarding treatment does not amount to deliberate indifference to

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serious medical needs).
ORDER, C10-1088-JCC
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Third, Petitioner objects to the Report’s conclusion regarding Respondent’s qualified

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immunity. The qualified immunity inquiry has two elements: whether there was a clear

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violation of Petitioner’s Eighth Amendment rights and whether those rights were clearly

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established. Saucier v. Katz, 533 U.S. 194, 201 (2001). As to the first inquiry, Respondent was

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not deliberately indifferent to Petitioner’s alleged condition; instead, Petitioner continued to be

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seen for narcolepsy despite a mounting lack of symptoms. (Dkt. No 14 at 4, 5.) Petitioner’s

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allegations were also not “sufficiently serious” because narcolepsy rarely interferes with daily

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activities and Petitioner had no documented injuries. See Farmer v. Brennan, 511 U.S. 825,

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847 (1994) (holding that the depravation must be objectively “sufficiently serious” to be a

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denial of the minimal civilized measure of life’s necessities). Moreover, there is no evidence

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that Respondent knew of and disregarded a serious risk to Petitioner. On the contrary,

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Petitioner was seen repeatedly for different ailments. (Dkt. No. 14 at 4-7.)

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In addition to falling short on the first inquiry, Petitioner’s right to further tests and

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medication was not clearly established. Respondent reasonably believed that he was acting

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lawfully when he denied medication on the basis of an apparent lack of symptoms. See Romero

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v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991) (holding that the officer should prevail if

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he could have reasonably believed his conduct was lawful). Qualified immunity is granted to

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all but the plainly incompetent or those who knowingly violate the law; thus, Respondent falls

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under its shield. See Malley v. Briggs, 475 U.S. 335, 341 (1986).

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II.

CONCLUSION

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The Court ADOPTS the report and recommendation (Dkt. No. 24). The Court

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GRANTS Respondent’s motion for summary judgment (Dkt. No 13) and DISMISSES

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Petitioner’s action WITH PREJUDICE.

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The Clerk of Court is directed to send copies of this Order to Petitioner and to
Magistrate Judge James P. Donohue.
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ORDER, C10-1088-JCC
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DATED this 14th day of June 2011.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER, C10-1088-JCC
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