Downey v. Andrews M.D. et al

Filing 70

ORDER ADOPTING 63 Report and Recommendation. Defendants' motion to dismiss (Dkt. No. 55 ) is GRANTED in part and DENIED in part. Plaintiff may proceed on his medical care claims against Defendants. All remaining claims against Defendants are DISMISSED with prejudice and without leave to amend. Defendants' motion to strike (Dkt. No. 61 ) is DENIED as moot. This matter is RE-REFERRED to Judge Donohue for further proceedings. Signed by U.S. District Judge John C Coughenour. (TH)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 DYLAN DOWNEY, 10 Plaintiff, CASE NO. C17-0968-JCC ORDER v. 11 STUART ANDREWS M.D., et al., 12 13 Defendants. 14 15 This matter comes before the Court on Defendants Chief Tony Aston (“Chief Aston”) 16 and Major Jamie Kane’s (“Major Kane”) objection (Dkt. No. 64) and United States Magistrate 17 Judge James P. Donohue’s report and recommendation (Dkt. No. 63) regarding Defendants’ 18 motion to dismiss (Dkt. No. 55). Having thoroughly considered the briefing and relevant record, 19 the Court hereby ADOPTS the report and recommendation (Dkt. No. 63) and OVERRULES 20 Defendants’ objection (Dkt. No. 64). 21 I. BACKGROUND 1 22 On December 28, 2016, Plaintiff Dylan Downey was booked into Snohomish County Jail 23 on a charge of vehicular assault. (Dkt. No. 54 at 3.) During his initial medical screening, Plaintiff 24 25 26 1 This section summarizes the facts as set forth in Plaintiff’s complaint, which are assumed to be true, as is appropriate on a motion to dismiss. See Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir. 2007). ORDER C17-0968-JCC PAGE - 1 1 informed jail medical staff of issues with his prosthetic leg, which no longer fit properly. (Id.) 2 Plaintiff asked to see a prosthologist before his condition deteriorated to the point where he could 3 no longer use the leg. (Id.) At subsequent appointments with jail medical personnel, Plaintiff 4 repeatedly requested to see a prosthologist. (Id. at 3–4, 6.) Plaintiff eventually filed formal 5 grievances and kites regarding the lack of treatment for his leg and unfilled requests to see a 6 prosthologist. (Id. at 6.) 7 Plaintiff was not allowed to see a prosthologist until April 13, 2017. (Id. at 7.) During this 8 appointment, Plaintiff was informed that he needed a new socket and other adjustments to 9 correct the fit. (Id.) Jail officials instructed the prosthologist not to do so. (Id.) Following the 10 appointment, Plaintiff continued to inform the jail medical personnel of the pain caused by the 11 ill-fitting prosthetic. (Id. at 7–9.) Plaintiff wrote two times to Chief Aston, Bureau Chief of 12 Snohomish County Sherriff’s Office – Corrections Bureau, for assistance. (Id. at 10.) The Chief 13 did not act upon Plaintiff’s requests. (Id.) Instead, he merely claimed not to “concur” with 14 Plaintiff’s claims of deliberate indifference. (Id.) Plaintiff also wrote to Major Kane, Corrections 15 Deputy at Snohomish County Jail. (Id.) Major Kane never responded to Plaintiff’s requests or 16 any of the grievances assigned to him. (Id.) 17 Plaintiff brings this 42 U.S.C. section 1983 civil rights action against Chief Aston and 18 Major Kane (collectively “Defendants”), Snohomish County, and other jail medical staff and 19 administrators. (Dkt. No. 54.) Plaintiff alleges that Defendants violated his Eighth and 20 Fourteenth Amendment rights through their deliberate indifference to his need for adequate 21 medical care. (Id. at 14.) Plaintiff further alleges that Defendants are liable as superiors for the 22 actions of the Jail medical staff’s Equal Protection and Due Process violations, along with 23 violations of the American with Disabilities Act of 1990, 42 U.S.C. Section 1201, et seq. 24 (“ADA”), the ADA Amendments Act of 2008, and state and local laws. (Id. at 16–18.) Plaintiff 25 also alleges Defendants created unconstitutional conditions of confinement and committed 26 violations of state laws including “medical malpractice, collusion in the perpetration of fraud, ORDER C17-0968-JCC PAGE - 2 1 fraud, negligence, violations of the WA State Disability Act, and any applicable violations of the 2 Revised Code of Washington.” (Id. at 17–18.) Defendants move to dismiss all claims against 3 them pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 55.) Judge Donohue 4 recommends that all claims against Chief Aston and Major Kane be dismissed except for 5 Plaintiff’s claim of deliberate indifference. (Dkt. No. 64.) Defendants object to Judge Donohue’s 6 recommendation not to dismiss Plaintiff’s deliberate indifference claim. (Id.) 7 II. DISCUSSION 8 A. Legal Standard 9 Objections to a magistrate judge’s report and recommendations are reviewed de novo. 28 10 U.S.C. § 636(b)(1). A defendant may move to dismiss a complaint when a plaintiff “fails to state 11 a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[T]he pleading standard 12 Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an 13 unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 14 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to 15 state a claim for relief that is plausible on its face. Id. at 677–78. A claim is facially plausible 16 when the plaintiff pleads factual content that allows the Court to draw the reasonable inference 17 that the defendant is liable for the misconduct alleged. Id. at 678. 18 B. 19 Defendants argue that Plaintiff failed to plead sufficient facts to support his deliberate Deliberate Indifference 20 indifference claim. (Dkt. No. 64 at 2, 6.) Defendants also argue that Plaintiff’s claim of 21 deliberate indifference under 42 U.S.C. section 1983 should be dismissed for failing to state a 22 legally cognizable claim because the statute does not allow for a respondeat superior theory of 23 liability. (Id. at 6.) 24 A prisoner can establish an Eighth Amendment violation arising from inadequate medical 25 care by showing “deliberate indifference to serious medical needs” by prison officials through 26 acts or omissions. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Supervisors may be held liable on ORDER C17-0968-JCC PAGE - 3 1 a deliberate indifference claim “for [their] own culpable action or inaction,” based upon “the 2 supervisors’ knowledge of and acquiescence in unconstitutional conduct by his or her 3 subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). To be liable, the supervisor’s 4 involvement “could include his own culpable action or inaction in the training, supervision, or 5 control of his subordinates, his acquiescence in the constitutional deprivations of which the 6 complaint is made, or conduct that showed a reckless or callous indifference to the rights of 7 others.” Id. at 1205-06 (internal quotations omitted). 8 9 In Starr, a prisoner adequately pled a claim of supervisor liability for deliberate indifference based on the complaint’s numerous allegations of notice to a Sherriff of his 10 subordinates’ culpable actions in the injuries and deaths of inmates and the Sherriff’s inaction. 11 Id. at 1216. Defendants argue that this case is distinguishable and that Plaintiff’s claim is more 12 like the “bald and conclusory allegations” that the Ninth Circuit has found to be insufficient to 13 support a deliberate indifference claim. (Dkt. No. 64 at 2–3) (citing Hydrick v. Hunter, 669 F.3d 14 937, 942 (9th Cir. 2012)). In Hydrick, the Ninth Circuit affirmed the dismissal of a supervisor 15 theory liability when the plaintiff alleged the defendants had “personal knowledge of retaliation” 16 against him but pled no facts regarding Defendant’s purported knowledge of the retaliation. Id. at 17 942. 18 Unlike in Hydrick, here Plaintiff has pled facts demonstrating Defendants’ knowledge 19 and inaction regarding the alleged deliberate indifference of the jail personnel. Plaintiff alleges 20 that he wrote Defendants on multiple occasions regarding his need for medical treatment and that 21 the jail medical staff did not help him. (Dkt. No. 54 at 10.) Nevertheless, neither Defendant acted 22 upon Plaintiff’s requests. (Id.) Plaintiff alleges that he wrote Chief Aston twice, and that the 23 Chief took no action to respond to Plaintiff’s requests other than to say that he did not “concur” 24 with Plaintiff’s allegations. (Id.) Plaintiff also alleges to have written Major Kane, and that the 25 Major did not respond or take any action. (Id.) This is sufficient for the Court to draw a 26 reasonable inference that Defendants knew and “acquiesce[ed] in unconstitutional conduct by ORDER C17-0968-JCC PAGE - 4 1 [their] subordinates.” Starr, 652 F.3d at 1207. 2 Accepting as true all factual allegations in Plaintiff’s complaint, the Court finds that 3 Plaintiffs have plausibly alleged facts regarding Defendants’ deliberate indifference claim 4 against Chief Aston and Major Kane. Accordingly, Defendants’ objection to Judge Donohue’s 5 report and recommendation is OVERRULED. 6 III. CONCLUSION 7 For the foregoing reasons, the Court ORDERS as follows: 8 (1) The Court ADOPTS the Report and Recommendation. (2) Defendants’ motion to dismiss (Dkt. No. 55) is GRANTED in part and DENIED 9 10 in part. Plaintiff may proceed on his medical care claims against Defendants. All remaining 11 12 claims against Defendants are DISMISSED with prejudice and without leave to amend. 13 (3) Defendants’ motion to strike (Dkt. No. 61) is DENIED as moot. 14 (4) This matter is RE-REFERRED to Judge Donohue for further proceedings. 15 (5) The Clerk is DIRECTED to send copies of this Order to the parties and to Judge 16 Donohue. 17 18 DATED this 9th day of July 2018. 19 A 20 21 22 John C. Coughenour UNITED STATES DISTRICT JUDGE 23 24 25 26 ORDER C17-0968-JCC PAGE - 5

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