Varnell v. Washington State Department of Corrections et al

Filing 124

ORDER by Judge Benjamin H. Settle as follows: 1) Plaintiff's 120 Motion for Reconsideration is GRANTED; 2) the Court's previous 115 Order is VACATED; 3) the 106 Report and Recommendation is ADOPTED; and 4) Plaintiff's 32 MOTION for Preliminary Injunction is DENIED. **3 PAGE(S), PRINT ALL**(Mitchell Varnell, Prisoner ID: 871147)(GMR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 MITCHELL LEE VARNELL, 8 9 Plaintiff, CASE NO. C15-5443BHS-DWC ORDER ADOPTING REPORT AND RECOMMENDATION v. 10 WASHINGTON DEPARTMENT OF 11 CORRECTIONS, Defendant. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 106), the 15 Court’s order adopting the R&R (Dkt. 115), Plaintiff Mitchell Lee Varnell’s (“Varnell”) 16 motion for reconsideration, and Varnell’s objections to the R&R (Dkt. 119). 17 On October 28, 2016, Judge Christel issued the R&R recommending that the 18 Court deny Varnell’s motion for a preliminary injunction. Dkt. 106. On December 7, 19 2016, the Court adopted the R&R stating that no objections had been filed. Dkt. 115. On 20 December 13, 2016, Varnell filed objections. Dkt. 119. On December 20, 2016, Varnell 21 filed a motion for reconsideration of the Court order. Dkt. 120. 22 ORDER - 1 1 A. Reconsideration 2 In his motion, Varnell asserts that he did not receive the R&R in a timely fashion 3 because of a mistake at his institution. Dkt. 120. Varnell requests that the Court 4 reconsider its order adopting the R&R in light of the objections he has filed as promptly 5 as possible. Id. The Court finds that the interests of justice and due process comport 6 with considering Varnell’s objections. Therefore, the Court grants Varnell’s motion for 7 reconsideration and vacates its previous order. 8 B. Objections 9 The district judge must determine de novo any part of the magistrate judge’s 10 disposition that has been properly objected to. The district judge may accept, reject, or 11 modify the recommended disposition; receive further evidence; or return the matter to the 12 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 13 In this motion, the issue is whether Defendants must transport Varnell to medical 14 appointments in a vehicle with cushioned seats or with prescribed medical cushions. The 15 record shows that Varnell’s provider initially authorized a vehicle with cushioned seats, 16 but then rescinded that order and prescribed two medical cushions for transport in 17 vehicles with hard plastic seats. Dkt. 106 at 7. To the extent that Varnell claims this is a 18 violation of his Eight Amendment right, the Court agrees with Judge Christel that, at 19 most, Varnell has shown a difference of medical opinion and not the required deliberate 20 indifference. Id. Thus, Varnell has failed to show a likelihood of success on the merits 21 of his claim and the motion for a preliminary injunction fails. To the extent that Varnell 22 argues that Defendants are violating his rights under the Americans with Disabilities Act, ORDER - 2 1 the Court agrees with Judge Christel that the argument is beyond the scope of the 2 operative complaint. Id. at 9–11. 3 Therefore, the Court having considered the R&R, Varnell’s objections, and the 4 remaining record, does hereby find and order as follows: 5 (1) The Court GRANTS Varnell’s motion for reconsideration (Dkt. 120) 6 (2) The Court VACATES its previous order (Dkt. 115); 7 (3) The R&R is ADOPTED; and 8 (4) The Court DENIES Varnell’s motion for a preliminary injunction (Dkt. 9 10 32). Dated this 24th day of January, 2017. A 11 12 BENJAMIN H. SETTLE United States District Judge 13 14 15 16 17 18 19 20 21 22 ORDER - 3

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