Miller v. Gilbert et al

Filing 120

ORDER ADOPTING IN PART AND DECLINING IN PART Report and Recommendations re 105 Objections to R&R & 109 Objections to R&R. Case is Re-Referred to Magistrate Judge J. Richard Creatura. Signed by Judge Benjamin H. Settle. **7 PAGES, PRINT ALL** (Christopher Miller, Prisoner ID: 632688) (MGC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHRISTOPHER MILLER,
Plaintiff,

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v.
MARGARET GILBERT, et al.,

CASE NO. C16-5891 BHS
ORDER ADOPTING IN PART
AND DECLINING IN PART
REPORT AND
RECOMMENDATION

Defendants.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 103),

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Defendant Shelli Hudson’s (“Hudson”) objections to the R&R (Dkt. 105), Plaintiff

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Christopher Miller’s (“Miller) objections to the R&R (Dkt. 109),1 and Miller’s motion to

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strike Hudson’s objections to the R&R and her response to Miller’s own objections (Dkt.

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115).

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Also pending before the Court is Plaintiff’s motion seeking to compel the production of a copy
of the R&R and requesting an extension of his deadline to object. Dkt. 107. While it appears that it took
several days longer than would be expected for Plaintiff to receive a copy of the R&R, it is clear from
Plaintiff’s pleadings that he received a copy with adequate time to prepare his objections, which were
timely filed. Because Plaintiff received the R&R and timely filed his objections, the motion to extend
deadlines and to compel production (Dkt. 107) is DENIED as moot.

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The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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A.

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Miller’s Objections
Miller’s main objection focuses on the recommendation that Defendant Margaret

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Gilbert (“Gilbert”) be dismissed. Specifically, Miller argues that Gilbert’s participation in

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reviewing his level II grievance constitutes sufficient personal participation to support a

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finding of liability for an allegedly unconstitutional denial of medical care. However, the

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Court agrees with the R&R that Gilbert’s review provided an adequate response to the

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allegations in Miller’s grievance. Gilbert assigned an investigator to Miller’s claims and

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the resulting investigation indicated that (1) Miller had been seen by medical staff at the

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time the restraints were removed, (2) Miller had since cancelled an appointment for

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medical care, (3) and no medical kites could be located wherein Miller sought treatment

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for injuries to his wrist and thumb. Dkt. 85 at 2; see also Dkt. 102 at 97. Additionally,

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Miller had been seen twice by medical staff before the review of his level I grievance was

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completed. Dkt. 85 at 2.

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Miller did not allege in his grievance on August 25 that he had submitted multiple

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prior medical kites requesting treatment for his hand. In fact, under the facts and theory

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described in Miller’s own declaration, those alleged kites were never properly filed or

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submitted for the very purpose of avoiding review by a subsequent investigation or

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supervisor like Gilbert. See Dkt. 102 at 21 (“I believe Hudson threw away or destroyed

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them, so a doctor or provider wouldn’t see my injuries during an exam, and get Hudson

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in trouble for not reporting my injuries originally.”). Nor is there any evidence suggesting

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Gilbert was somehow placed on notice that Hudson or any other member of the medical

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staff had allegedly failed to process grievances properly or take any other action to

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prevent supervisors from discovering the extent of Miller’s injury.

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Based on the record, Gilbert reasonably believed that Miller was receiving

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adequate medical treatment and that any further necessary medical attention was readily

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available. There is no evidence whereby a rational juror could conclude that Gilbert was

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deliberately indifferent to Miller’s medical needs by delaying treatment.
Also, Miller objects to the recommended dismissal of his state law claims against

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the defendants who have been granted summary judgment on his federal claims. He notes

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that this case was removed from state court and argues that his state law claims should be

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remanded rather than dismissed if the Court declines to exercise supplemental

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jurisdiction. The Court agrees that judicial efficiency would favor an order of remand

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over dismissal of Miller’s state law claims. However, all of Plaintiff’s remaining state

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law claims are closely intertwined with his remaining federal claim against Hudson, as

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they all revolve around the use of bolt cutters to remove his hand cuffs and his resulting

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injuries. Remanding or dismissing the case partially while proceeding with the claim

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against Hudson could lead to inconsistent results and findings. Accordingly, the Court

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finds that in the interests of judicial efficiency, the Court should continue to exercise its

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supplemental jurisdiction over Miller’s state law claims and should address those claims

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on the merits. Accordingly, the Court will return this matter to Judge Creatura for

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consideration of the summary judgment motions already submitted in regards to Miller’s

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state law claims.

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B.

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Hudson’s Objections
Hudson objects to the R&R’s conclusion that the record presents genuine disputes

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of material fact over whether she was deliberately indifferent to Miller’s medical needs.

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Hudson’s primary argument is that “Plaintiff presented no admissible evidence to support

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a claim of deliberate indifference to a serious medical need by . . . Hudson.” Dkt. 105 at

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4. Specifically, Hudson argues that (1) the only objective findings during her examination

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were a small cut and slight swelling that were properly treated with ice, (2) nothing in the

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record supports a claim that Hudson ignored Miller’s requests for medical treatment, (3)

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no medical provider has diagnosed an avulsion fracture, (4) Plaintiff was placed in

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medical segregation from August 19 through August 24, (5) medical records show that he

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received care from M.L. Furst, M.D. on August 19, 21, and September 4, but there is not

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any mention of physical injuries from the incident, and (6) Miller was seen by medical

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professionals on twelve occasions between August 18, 2015 and October 12, 2015.

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However, Plaintiff has submitted evidence in the form of his declaration that he

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gave Hudson numerous medical kites seeking medical attention for his hand that were

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never properly filed. Dkt. 102 at 6. While this is scant evidence to support his claim, his

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statements are feasible when considered with other evidence in the record. For instance, it

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is at least somewhat suspicious or incongruent that Miller filed a grievance seeking

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medical attention and complaining that he received inadequate care for his hand as soon

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as he was moved out of medical segregation, and yet the records from when Miller was in

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medical segregation lack any indication that Miller was complaining about his hand. See

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Dkt. 102 at 89–90. While Hudson asserts that the only time she dealt with Miller was

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when he was initially brought to the outpatient infirmary and the handcuffs were

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removed, she acknowledges that she may have dealt with him in segregation when

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“possibly dispensing medication that had been ordered by medical providers. Dkt. 86 at

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3. This is not necessarily inconsistent with Miller’s statements that he gave medical kites

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to Hudson when she came to administer his medications. Dkt. 102 at 21.

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Also, it should be noted that while Miller was placed in medical segregation and

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received some treatment, the record plainly indicates that this was done in light of mental

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health and safety concerns and not to treat his hand. Dr. Furst—a psychiatrist—did not

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note any concerns pertaining to Miller’s hand on the record when providing mental health

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treatment, but this does not establish that Miller’s hand was not in fact injured.

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Furthermore, it is not inconsistent with Miller’s testimony that when he mentioned his

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hand to Dr. Furst, Dr. Furst explained that his focus dealt exclusively with mental health

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and that Miller would need to talk with his regular provider for physical treatment. Dkt.

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102 at 20.

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Finally, the Court notes that there is at least some evidence that Miller’s hand

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injury was sufficiently severe and painful that a deliberate delay of medical attention and

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relief would constitute an unnecessary and wanton infliction of pain. Plaintiff’s injury

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was sufficient enough that he received an immobilizing splint months after his hand was

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injured. Although the x-ray he eventually received 3 months after the injury does not

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confirm that his hand was broken by the removal of his handcuffs with bolt cutters, they

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do not rule out that possibility. See Dkt. 84 at 27 (“There is an old healed fracture at fifth

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metacarpal base,” the location of Miller’s injury). Additionally, defendants have failed to

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point to any evidence contradicting Miller’s description that his hand was severely

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swollen and remained so for days after the incident. Moreover, it plainly shown from the

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medical records that Miller does indeed suffer from painful conditions in his hand.

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Whether or not Miller lacks sufficient evidence to establish that his hand was broken or

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that his diagnosed hand injuries were actually caused by the cutting of his handcuffs, he

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has submitted sufficient evidence for a rational juror to believe that he suffered from

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sufficiently severe and apparent pain that an intentional delay of treatment, such as

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throwing away medical kites and ignoring medical requests, would constitute deliberate

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indifference to Millers medical and an unnecessary and wanton infliction of pain.

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As a final note, the Court recognizes the inherent difficulty in this case. The

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defendants point to an absence of medical records suggesting a severe hand injury in

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order support their defense that they were not deliberately indifferent to complaints of

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pain from a serious injury, yet Miller’s claims are predicated on a theory that medical

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staff was deliberately indifferent to his medical needs by refusing to process the very

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medical kites that would have created a record of his painful injury. Ultimately, the Court

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finds that this case comes down to a credibility determination that creates just sufficient a

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genuine dispute of material fact as to require submission to a jury.

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The Court having considered the R&R, Plaintiff’s objections, and the remaining
record, does hereby find and order as follows:

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The R&R is ADOPTED in part as follows: (1) Gilbert’s motion for summary

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judgment on Miller’s § 1983 claim against her is GRANTED; and (2) Hudson’s motion

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for summary judgment on Miller’s § 1983 claim against her is DENIED. The Court

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DECLINES to adopt the R&R in part and the case is RETURNED to Judge Creatura for

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further proceedings on Defendants’ motion for summary judgment in regards to Miller’s

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state law claims.

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Dated this 31st day of May, 2018.

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A

BENJAMIN H. SETTLE
United States District Judge

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ORDER - 7