Robinson v. Sziebert et al

Filing 91

ORDER ADOPTING 89 REPORT AND RECOMMENDATION and Dismissing Case by Judge Robert J. Bryan. Paper copy sent to Plaintiff at Steilacoom address. (TC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHARLES ROBINSON,

CASE NO. 3:15-cv-5555-RJB-DWC
Plaintiff,

v.
WASHINGTON STATE SPECIAL
COMMITMENT CENTER CHIEF
MEDICAL DIRECTOR, LESLIE
SZIEBERT; JOHN DOES 1-25 and JANE
DOES 1-25,

ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING CASE

Defendants.
THIS MATTER comes before the Court on the Report & Recommendation (R&R) of
United States Magistrate Judge David W. Christel. Dkt. 89. The Court has considered the R&R,
Plaintiff’s Objections thereof (Dkt. 90), and the remainder of the file. The R&R should be
adopted and the case dismissed.
The findings of the R&R should be adopted in their totality. The facts need not be
repeated, but the Court herein supplements the R&R with the following analysis to address the
merits of Plaintiff’s four objections. Dkt. 90 at 1.

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ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE - 1

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Objection 1: The conclusion that Defendant Sziebert had limited participation in Plaintiff’s

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treatment that did not fall below the minimum standard of care.

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Plaintiff objects to this R&R finding that Defendant Sziebert had limited participation in

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Plaintiff’s treatment, which failed to fall below the standard of minimum care, because this is a

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“mischaracterization [that] did not take into account the ten months it took to properly diagnose

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and treat the Plaintiff’s bones.” Dkt. 90 at 2.

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It is unclear whether Plaintiff objects to the “limited participation” finding or to the

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finding that treatment did not fall below the minimum standard of care. Assuming Plaintiff

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objects to both, Plaintiff has not controverted the record relied upon for either finding. As the

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R&R discusses, Defendant Sziebert saw Plaintiff three times during a ten month period, during

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which time Plaintiff also had five visits to a physical therapist, two orthopedic consults, two x-

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rays, and an MRI. Dkt. 89 at 8. At all three of Plaintiff’s visits with Defendant Sziebert,

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Defendant Sziebert evaluated Plaintiff’s broken foot injury, which, in Defendant Sziebert’s

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opinion, initially needed time to properly heal. See Dkt. 89 at 9, 10. This Objection lacks support

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in the record.

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Objection 2: Use of the term “sexually violent predator” to justify use of Eighth Amendment

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protections for prisoners and not Fourteenth Amendment protections.

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Plaintiff argues that the Court erred by analyzing Plaintiff’s claim under the “Eighth

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Amendment as [a] sexually violent predator instead of as a civilly committed person as if there is

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some distinction between the two when it comes to what rights the Plaintiff has under the

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Fourteenth Amendment.” Dkt. 90 at 4. Plaintiff argues that he is deserving of Fourteenth

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Amendment protections as a civil detainee “with all the rights that come with it.” Id.

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ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE - 2

Plaintiff’s argument is erroneous, because the R&R did, in fact, analyze Plaintiff’s claim

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under the Eighth and Fourteenth Amendments. See Dkt. 89 at 5, 6. As the R&R articulates,

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because civilly detained persons are due more considerate treatment than persons in criminal

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confinement, the “the Eighth Amendment [analysis applicable to criminally confined persons]

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still provides a floor for the level of protection” to civilly detained persons. Id. Plaintiff has not,

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however, made a sufficient showing under either standard. Dkt. 89 at 10:18.

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Objection 3: The conclusion that Defendant Sziebert acted with deliberate indifference in

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violation of Plaintiff’s rights under the Eighth and Fourteenth Amendments.
After articulating the relevant law for a deliberate indifference claim, Plaintiff argues

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conclusorily that “[u]nder any plausible baseline, Plaintiff Robinson’s condition of confinement

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implicate [sic] a protected liberty interest giving rise to procedural due process protection.” Dkt.

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90 at 5.

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Plaintiff’s argument is unavailing. See also, Dkt. 89 at 9, 10.

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Objection 4: The conclusion that Defendant Sziebert had no supervisory responsibility as the

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Medical Director at the Washington State Commitment Center (SCC).

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Plaintiff argues that Defendant Sziebert had supervisory responsibility because of the

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“SCC Medical Director’s Job Description[.]” Dkt. 90 at 6, 7. Plaintiff’s theory is that Defendant

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Sziebert acted with “deliberate indifference toward the possibility [of] deficient performance” by

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SCC providers whom she supervised. Dkt. 89 at 5, 6.

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Even if it is assumed that Defendant Sziebert had the responsibility to supervise other

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providers that gave care to Plaintiff, that is nothing more than a theory of vicarious liability,

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which, as discussed in the R&R, is an insufficient basis for liability under §1983. Dkt. 89 at 10,

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citing Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989).

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***

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE - 3

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THEREFORE, it is HEREBY ORDERED:

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The Report and Recommendation (Dkt. 89) is ADOPTED.

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Defendant’s Motion for Summary Judgment (Dkt. 77) is GRANTED.

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Plaintiff’s Motion for Summary Judgment (Dkt. 80) is DENIED.

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The case is DISMISSED.

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It is so ordered.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

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to any party appearing pro se at said party’s last known address.
Dated this 9th day of April, 2018.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE - 4