Wilson v. State of Washington et al

Filing 92

ORDER by Judge Benjamin H. Settle granting 80 Motion for Summary Judgment.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JEFFREY L. WILSON,

CASE NO. C16-5366 BHS
Plaintiff,

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ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

v.

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STATE OF WASHINGTON, et al.,

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Defendants.

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This matter comes before the Court on Defendant Dr. Leslie Sziebert’s

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(“Sziebert”) and Washington State’s (“State”) motion for summary judgment. Dkt. 80.

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The Court has considered the pleadings filed in support of and in opposition to the

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motion and the remainder of the file and hereby grants the motion.

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I.

BACKGROUND

On June 14, 2017, Plaintiff Jeffrey L. Wilson (“Plaintiff”) filed his third amended

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complaint in this action. Dkt. 54. Plaintiff asserted 42 U.S.C. § 1983 claims against the

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State, the Department of Social and Health Services (“DSHS”), Attorney General Bob

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Ferguson, Sziebert, and John Does (collectively, “Defendants”) arising from the length

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and conditions of his civil confinement at Washington’s Special Commitment Center on

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McNeil Island (“SCC”). Id. Specifically, Plaintiff alleged that he was deprived of

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adequate medical care while civilly committed and that it was unconstitutional to confine

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him for approximately 12 years without obtaining a verdict at trial. Id.

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On June 29, 2017, Defendants moved for partial summary judgment. Dkt. 57. The

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Court granted the motion. Dkts. 70, 73, 77. After the motion was granted, Plaintiff’s

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surviving claims consisted of a 42 U.S.C. § 1983 due process claim for inadequate

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medical treatment against Dr. Sziebert and medical negligence claims against Dr.

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Sziebert and his employer, the State.

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On June 20, 2018, Defendants moved for summary judgment on Plaintiff’s

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remaining claims. Dkt. 80. On July 9, 2018, Plaintiff responded. Dkt. 84. On July 13,

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2018, Defendants replied. Dkt. 88.

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II. DISCUSSION
Plaintiff’s only remaining claims before the Court are (1) a 42 U.S.C. § 1983

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claim against Dr. Sziezbert for allegedly providing inadequate medical care to Plaintiff,

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and (2) a medical negligence claim against Dr. Sziebert and the State as his employer.

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Defendants have moved for summary judgment on both claims.

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Summary judgment is proper only if the pleadings, the discovery and disclosure

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materials on file, and any affidavits show that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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The moving party is entitled to judgment as a matter of law when the nonmoving party

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fails to make a sufficient showing on an essential element of a claim in the case on which

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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323

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(1986). There is no genuine issue of fact for trial where the record, taken as a whole,

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could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

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present specific, significant probative evidence, not simply “some metaphysical doubt”).

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See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if

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there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

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jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

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626, 630 (9th Cir. 1987).

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The determination of the existence of a material fact is often a close question. The

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Court must consider the substantive evidentiary burden that the nonmoving party must

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meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477

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U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

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issues of controversy in favor of the nonmoving party only when the facts specifically

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attested by that party contradict facts specifically attested by the moving party. The

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nonmoving party may not merely state that it will discredit the moving party’s evidence

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at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

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Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

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nonspecific statements in affidavits are not sufficient, and missing facts will not be

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presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990).

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Defendant moves for summary judgment on Plaintiff’s due process and negligence
claims against Dr. Sziebert on three grounds. First, Defendants argue that Plaintiff lacks

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any evidence indicating that his treatment deviated from an acceptable exercise of

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professional judgment or fell below the applicable standard of care. Second, Defendants

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argue that Plaintiff has failed to show that Dr. Sziebert personally participated in causing

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any alleged harm to Plaintiff. Finally, Defendants argue that Dr. Sziebert is entitled to

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qualified immunity for any alleged constitutional violation. The Court finds that

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Defendants prevail on their first argument, and therefore the Court need not consider

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arguments on Dr. Sziebert’s personal participation or qualified immunity.

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In the context of civil confinement, Plaintiff’s right to constitutionally adequate
medical care and conditions of confinement is protected by the substantive component of

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the Due Process Clause. Youngberg v. Romeo, 457 U.S. 307, 315 (1982). “A civil

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detainee . . . is entitled to conditions of confinement that are not punitive.” Jones v.

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Blanas, 393 F.3d 918, 933 (9th Cir. 2004). Accordingly, Plaintiff is “entitled to more

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considerate treatment and conditions of confinement than criminals whose conditions of

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confinement are designed to punish,” but officials need only ensure that “professional

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judgment” was exercised. Youngberg, 457 U.S. 322–23. Under this standard, a “decision,

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if made by a professional, is presumptively valid; liability may be imposed only when the

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decision by the professional is such a substantial departure from accepted professional

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judgment, practice, or standards as to demonstrate that the person responsible actually did

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not base the decision on such a judgment.” Id. at 323. “This standard has been referred to

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as the ‘Youngberg professional judgment standard.’” Mitchell v. Washington, 818 F.3d

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436, 443 (9th Cir. 2016) (quoting Ammons v. Wash. Dep’t. of Soc. & Health Servs., 648

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F.3d 1020, 1027 (9th Cir. 2011)).

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In a similar vein, medical negligence claims in Washington State require that a

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plaintiff prove the health care provider caused him injury by “fail[ing] to exercise that

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degree of care, skill, and learning expected of a reasonably prudent health care provider

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at that time in the profession or class to which he or she belongs.” RCW 7.70.040(1). The

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plaintiff also must prove proximate cause. RCW 7.70.040(2). “The applicable standard of

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care and proximate causation generally must be established by expert testimony.” Grove

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v. PeaceHealth St. Joseph Hosp., 182 Wn.2d 136, 144 (2014) (citation omitted).

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The Court agrees with Defendants that Plaintiff has failed to present any evidence
to create a genuine dispute over whether the treatment Plaintiff received while civilly

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committed constituted a substantial departure from accepted professional judgment.

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Plaintiff’s arguments in favor of his claims are predicated on three theories that: (1)

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Plaintiff did not receive adequate dental care, (2) Dr. Sziebert failed to treat Plaintiff’s

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back pain by providing access to a specialist, and (3) the purportedly high dosages of

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Neurontin with which Plaintiff’s chronic pain was treated resulted in pancreatitis.

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Plaintiff’s claims that he was subjected to improper dental care are supported only by his

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own statement that in 2006, he was informed that he had one deep cavity and that, as a

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result, all of his upper teeth were unnecessarily removed and he was given dentures. Dkt.

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86 at 3. The medical decision was made by a professional and is presumptively valid.

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Youngberg, 457 U.S. 323. Plaintiff has failed to submit any evidence from a medical

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professional or some other similarly qualified person or source to indicate that this was

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not an acceptable exercise of professional judgment in light of Plaintiff’s dental issues.

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Thus, similar to the plaintiff in Mitchell, Plaintiff “has failed to present evidence

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sufficient to rebut the Youngberg professional judgment standard.” Mitchell, 818 F.3d at

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443.

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Furthermore, Plaintiff asserts that he should have been transported out of the SCC

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to consult a dentist. Although Plaintiff declares that he suffered from subsequent dental

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pain, his own statements acknowledge that he received evaluations from medical staff

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regarding his dental needs. Dkt. 86 at 3. Other than his vague assertions of dental pain,

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Plaintiff has not submitted any evidence showing that his condition required attention

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from a dentist or that the evaluations he received fell short of acceptable professional

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care. See id. On the other hand, Defendants have submitted thorough evidence regarding

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Plaintiff’s dental treatment indicating that Plaintiff’s condition was in fact evaluated by

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multiple dentists, all of whom concluded that Plaintiff suffered from severe perio, and

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that the extractions Plaintiff received were the recommended and necessary course of

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treatment. Dkt. 82-1 at 21–46. In light of the record, Plaintiff has failed to rebut the

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presumptively valid decision to remove his teeth and provide dentures.

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Regarding Plaintiff’s assertions that Dr. Sziebert refused to send Plaintiff out of

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the SCC to see a specialist, Plaintiff has similarly failed to present any evidence of

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decisions that fell below accepted professional standards. Plaintiff declares that,

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according to Dr. Sziebert, a neurologist and an orthopedic specialist were necessary to

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adequately treat his type of pain and his back-related troubles. Dkt. 86 at 4. Medical

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records also indicate that there was some effort on the part of Dr. Sziebert to secure

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treatment from an orthopedic specialist and a physiatrist, which suggests that such

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treatment constituted a course of treatment that was needed. Dkt. 82-1 at 59, 60. Plaintiff,

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however, has failed to cite any evidence other than his own testimony that it was

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recommended that he be treated by a specialist prior to 2013. In fact, the first mentions of

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a specialist in the medical records appear to have occurred in February 2013, shortly

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before Plaintiff’s release on April 19, 2013. See Dkt. 85-3. The medical records further

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reveal that Dr. Sziebert attempted to secure treatment from a specialist, that the search for

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a provider was difficult, and that a specialist that Dr. Sziebert had eventually located

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withdrew his agreement to treat Plaintiff and several of his peers at the SCC. Id.; Dkt. 85-

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9. Thus, Plaintiff has failed to submit any evidence that Dr. Sziebert’s efforts to secure a

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specialist to treat Plaintiff fell below any applicable standard of medical care or

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constituted a deviation from an acceptable exercise professional judgment.
Finally, Plaintiff has failed to submit sufficient evidence to support his assertions

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that Dr. Sziebert’s decisions fell below professional standards when he prescribed high

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dosages of Neurontin while failing to adequately monitor for pancreatitis. Plaintiff asserts

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that he has learned that the manufacturer of Neurontin warns doctors to watch for

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pancreatitis, which Plaintiff subsequently developed after his Neurontin treatment. Dkt.

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86 at 4. Plaintiff has also submitted the testimony of Dr. John Wilson, Plaintiff’s brother,

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stating that prescribers of Neurontin should carefully monitor the patient to avoid

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untoward reactions, such as the rare adverse reaction of pancreatitis. Dkt. 87 at 2

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(“Pancreatitis is an uncommon serious adverse reaction occurring in less than one percent

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of patients.”). Additionally, Dr. Wilson declares that Plaintiff’s development of

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pancreatitis is consistent with drug-induced pancreatitis and that, while other causes may

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be entertained, the most likely cause of Plaintiff’s pancreatitis is the use of Neurontin. Id.

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Dr. Wilson concludes that “had [Dr. Sziebert] been more astute to pancreatitis potential,

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the drug would have been (and should have been) immediately discontinued.” Id.

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Although Dr. Wilson testifies that Plaintiff’s use of Neurontin should have been

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discontinued if the risk of pancreatitis was being been more closely monitored, he fails to

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offer any testimony that Dr. Sziebert’s monitoring of pancreatitis risk fell below an

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acceptable standard of medical care. Id. Nor does he state that Plaintiff’s treatment

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through Neurontin constituted a substantial departure from an accepted exercise of

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professional judgment. Id. (Plaintiff dosage was 3,200 mg/day whereas 3,600 mg/day

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“has been tolearated”). In fact, all the evidence on the record, including Dr. Wilson’s

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declaration, indicate that Dr. Sziebert’s prescription of Neurontin is usually a safe and

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accepted treatment for Plaintiff’s neuropathy. Id. In short, while Dr. Wilson’s declaration

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indicates that better medical treatment could have prevented Plaintiff from developing

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pancreatitis, his testimony fails to create a question of fact that the care Plaintiff received

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fell below an applicable standard of care or deviated from an acceptable exercise of

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professional judgment. Absent any qualified testimony that Dr. Sziebert’s or his medical

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staff’s treatment of Plaintiff actually fell below the standard of care by not more closely

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monitoring Plaintiff’s risk or diagnosing him with pancreatitis, Plaintiff has failed to

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produce evidence that could support a finding of negligence or a due process violation on

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this theory of recovery.

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Based on the foregoing analysis, the Court concludes that Plaintiff has failed to
submit evidence supporting a theory that his treatment at the SCC violated the due

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process clause or that he suffered from medical negligence at the hands of Defendants.

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Accordingly, the Court must enter summary judgment in Defendants’ favor.

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III. ORDER

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Therefore, it is hereby ORDERED that Defendants’ motion for summary

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judgment (Dkt. 80) is GRANTED. The Clerk shall enter a JUDGMENT in favor of

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Defendants and close the case.

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Dated this 21st day of August, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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