Mitchell v. State of Washington et al
Filing
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ORDER Granting Extension of Time, Denying Motion for Counsel, and Clarifying Court's Order to Show Cause. Signed by Magistrate Judge Karen L Strombom. (GMR- cc: plaintiff)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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GEORGE O. MITCHELL,
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v.
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No. C12-5403 BHS/KLS
Plaintiff,
KELLY J. CUNNINGHAM, DR. THOMAS,
BELL, RANDAL GRIFFITH, CHRISTINE
HAUETER, and PAUL TEMPOSKY,
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ORDER GRANTING EXTENSION OF
TIME, DENYING MOTION FOR
COUNSEL, AND CLARIFYING
COURT’S ORDER TO SHOW CAUSE
Defendants.
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By Order dated May 22, 2012, Plaintiff was ordered to show cause why this matter
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should not be dismissed or, alternatively to file an amended complaint curing the deficiencies
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outlined in the Court’s order. ECF No. 5. Plaintiff was given a deadline of June 29, 2012. Id.
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On June 25, 2012, Plaintiff filed a “Motion to Modify Order, Request Counsel and Extension of
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Time”. ECF No. 6. Plaintiff requests a thirty day extension of time to amend his complaint, the
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appointment of counsel, and a clarification of the standard applicable to his claim of inadequate
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medical care. The Court finds that Plaintiff’s request for an extension of time shall be granted
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but that his motion for counsel shall be denied. A clarification of the standard applicable to a
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civilly committed person’s right to medical care is set forth below.
DISCUSSION
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A.
Request for Counsel
No constitutional right exists to appointed counsel in a § 1983 action. Storseth v.
Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). See also United States v. $292,888.04 in U.S.
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Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment of counsel under this section is
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discretionary, not mandatory.”) However, in “exceptional circumstances,” a district court may
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appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28
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U.S.C.§ 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other
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grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances exist, the
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court must evaluate both “the likelihood of success on the merits [and] the ability of the
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petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.”
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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718
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F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts that show he has an insufficient
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grasp of his case or the legal issue involved and an inadequate ability to articulate the factual
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basis of his claim. Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir.
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2004).
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That a pro se litigant may be better served with the assistance of counsel is not the test.
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Rand, 113 F.3d at 1525. Moreover, the need for discovery does not necessarily qualify the issues
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involved as “complex.” Wilborn, 789 F.2d at 1331. Most actions require development of further
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facts during litigation. But, if all that was required to establish the complexity of the relevant
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issues was a demonstration of the need for development of further facts, then practically all cases
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would involve complex legal issues. Id.
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Plaintiff states that he is not absolutely confident that he understands how to articulate his
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medical claims and asks that the Court consider appointment him an attorney. Plaintiff filed his
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complaint pro se and has demonstrated an ability to articulate his claims pro se in a clear fashion
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understandable to this Court. The Court has declined to serve Plaintiff’s complaint at this time
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as it is deficient, but Plaintiff is being given an opportunity to amend his complaint. Based on
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Plaintiff’s allegations, however, the Court notes that this is not a complex case involving
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complex facts or law. In addition, Plaintiff presents no evidence to show that he is likely to
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succeed on the merits of his case.
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While Plaintiff may not have vast resources or legal training, he meets the threshold for a
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pro se litigant. Concerns regarding investigation, access to legal resources or examination of
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witnesses are not exceptional factors, but are the type of difficulties encountered by many pro se
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litigants. Plaintiff has failed in his burden to demonstrate an inability to present his claims to this
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Court without counsel. Accordingly, his motion for counsel shall be denied.
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B.
Right to Medical Care of Civilly Committed Person
Plaintiff states that he does not want to amend without “first clearing-up a grave error in
the legal standard” articulated by this Court. Plaintiff is a resident at the Special Commitment
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Center (SCC), a total confinement treatment facility for persons committed or detained as
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sexually violent predators (SVPs) pursuant to Wash. Rev. Code 71.09.
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Although civil detainees’ medical care claims must be evaluated under Fourteenth
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Amendment principles, “the Eighth Amendment still provides a floor for the level of protection
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that SVPs must receive ... and because the contours of the Eighth Amendment are more defined,
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Eighth Amendment jurisprudence may provide helpful guidance as to the standards to be
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applied.” Hubbs v. County of San Bernardino, 538 F.Supp.2d 1254, 1266 (C.D.Cal.2008).
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Under the Eighth Amendment, deficiencies in medical care rise to the level of an Eighth
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Amendment claim only when they rise to the level of “deliberate indifference to serious medical
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needs.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The plaintiff
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must show a serious medical need by demonstrating that failure to treat his condition could result
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in further significant injury or the unnecessary and wanton infliction of pain. Second, the
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plaintiff must show that defendants' response to the need was deliberately indifferent. The
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second prong is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s
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pain or possible medical need and (b) harm caused by the indifference. Indifference may appear
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when prison officials deny, delay or intentionally interfere with medical treatment, or it may be
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shown by the way in which prison physicians provide medical care. Jett v. Penner, 439 F.3d
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1091, 1096 (9th Cir.2006).
“Denial of medical attention to prisoners constitutes an Eighth Amendment violation if
the denial amounts to deliberate indifference to serious medical needs of the prisoner.”
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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986), cert. denied, 481 U.S. 1069 (1987).
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Deliberate indifference occurs when prison officials deny, delay or intentionally interfere with
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medical treatment or in the way in which prison officials provide medical care. McGuckin v.
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Smith, 974 F.2d 1050, 1062 (9th Cir.1992), overruled on other grounds by WMX Tech., Inc. v.
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Miller, 104 F.3d 1133, 1136 (9th Cir.1997).
Civilly committed SVPs may be entitled to a higher degree of protection than provided
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by the deliberate indifference standard. See Hydrick v. Hunter, 500 F.3d 978, 994 (9th
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Cir.2007), judgment vacated on other grounds by Hunter v. Hydrick, --- U.S. ----, 129 S.Ct.
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2431, 174 L.Ed.2d 226 (2009) ( “[T]he rights afforded prisoners set a floor for those that must be
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afforded SVPs”). A civilly committed person’s claim that his medical care violated
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constitutional standards may be governed by the “professional judgment” standard set forth in
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Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (the right to medical
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care was not at issue in Youngberg). In Youngberg, the Supreme Court first recognized that
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involuntarily committed persons have a constitutional right to “minimally adequate or reasonable
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training to ensure safety and freedom from undue restraint.” Youngberg, 457 U.S. at 319. The
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Court, however, cautioned against imposing expansive obligations on the states in their care of
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such persons: “the Constitution only requires that the courts make certain that professional
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judgment in fact was exercised. It is not appropriate for the courts to specify which of several
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professionally acceptable choices should have been made.” Id. at 321. The Youngberg Court
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also explained that interference by the federal judiciary with the internal operations of these
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institutions should be minimized and that a decision, if made by a professional, is presumptively
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valid. Id. “[L]iability may be imposed only when the decision by the professional is such a
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substantial departure from accepted professional judgment, practice, or standards as to
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demonstrate that the person responsible actually did not base the decision on such a judgment.”
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Id. at 322-23.
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Under both the “professional judgment” and the “deliberate indifference” standards, mere
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negligence or medical malpractice does not violate the Constitution. See, Estelle, 429 U.S. at
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106; Patten v. Nichols, 274 F.3d 829, 842–43 (4th Cir.2001) (applying Youngberg “professional
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judgment” standard to a denial of medical care claim by a civilly committed psychiatric patient
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and holding that more than negligence is required).
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In this case, Plaintiff alleges only that “SCC defendant physicians and SCC medical
personnel” were negligent. Thus, his allegations would not support a claim of constitutional
violation under either the “professional judgment” or the “deliberate indifference” standard.
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Accordingly, it is ORDERED:
(1)
Plaintiff must show cause or file his amended complaint on or before August 3,
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2012. Plaintiff is cautioned that if he fails to show cause or amend his complaint by August 3,
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2012, the Court will recommend dismissal of this action as frivolous.
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(2)
The Clerk is directed to send to Plaintiff a copy of this Order and a copy of the
Court’s Order dated May 22, 2012 (ECF No. 5).
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DATED this 23rd day of July, 2012.
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A
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Karen L. Strombom
United States Magistrate Judge
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