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)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 CHRISTOPHER MILLER, Plaintiff, 9 10 v. MARGARET GILBERT, et al., CASE NO. C16-5891 BHS ORDER ADOPTING IN PART AND DECLINING IN PART REPORT AND RECOMMENDATION Defendants. 11 12 This matter comes before the Court on the Report and Recommendation (“R&R”) 13 14 of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 103), 15 Defendant Shelli Hudson’s (“Hudson”) objections to the R&R (Dkt. 105), Plaintiff 16 Christopher Miller’s (“Miller) objections to the R&R (Dkt. 109),1 and Miller’s motion to 17 strike Hudson’s objections to the R&R and her response to Miller’s own objections (Dkt. 18 115). 19 20 21 22 1 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. ORDER - 1 1 The district judge must determine de novo any part of the magistrate judge’s 2 3 disposition that has been properly objected to. The district judge may accept, reject, or 4 modify the recommended disposition; receive further evidence; or return the matter to the 5 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 6 A. 7 Miller’s Objections Miller’s main objection focuses on the recommendation that Defendant Margaret 8 Gilbert (“Gilbert”) be dismissed. Specifically, Miller argues that Gilbert’s participation in 9 reviewing his level II grievance constitutes sufficient personal participation to support a 10 finding of liability for an allegedly unconstitutional denial of medical care. However, the 11 Court agrees with the R&R that Gilbert’s review provided an adequate response to the 12 allegations in Miller’s grievance. Gilbert assigned an investigator to Miller’s claims and 13 the resulting investigation indicated that (1) Miller had been seen by medical staff at the 14 time the restraints were removed, (2) Miller had since cancelled an appointment for 15 medical care, (3) and no medical kites could be located wherein Miller sought treatment 16 for injuries to his wrist and thumb. Dkt. 85 at 2; see also Dkt. 102 at 97. Additionally, 17 Miller had been seen twice by medical staff before the review of his level I grievance was 18 completed. Dkt. 85 at 2. 19 Miller did not allege in his grievance on August 25 that he had submitted multiple 20 prior medical kites requesting treatment for his hand. In fact, under the facts and theory 21 described in Miller’s own declaration, those alleged kites were never properly filed or 22 submitted for the very purpose of avoiding review by a subsequent investigation or ORDER - 2 1 supervisor like Gilbert. See Dkt. 102 at 21 (“I believe Hudson threw away or destroyed 2 them, so a doctor or provider wouldn’t see my injuries during an exam, and get Hudson 3 in trouble for not reporting my injuries originally.”). Nor is there any evidence suggesting 4 Gilbert was somehow placed on notice that Hudson or any other member of the medical 5 staff had allegedly failed to process grievances properly or take any other action to 6 prevent supervisors from discovering the extent of Miller’s injury. 7 Based on the record, Gilbert reasonably believed that Miller was receiving 8 adequate medical treatment and that any further necessary medical attention was readily 9 available. There is no evidence whereby a rational juror could conclude that Gilbert was 10 11 deliberately indifferent to Miller’s medical needs by delaying treatment. Also, Miller objects to the recommended dismissal of his state law claims against 12 the defendants who have been granted summary judgment on his federal claims. He notes 13 that this case was removed from state court and argues that his state law claims should be 14 remanded rather than dismissed if the Court declines to exercise supplemental 15 jurisdiction. The Court agrees that judicial efficiency would favor an order of remand 16 over dismissal of Miller’s state law claims. However, all of Plaintiff’s remaining state 17 law claims are closely intertwined with his remaining federal claim against Hudson, as 18 they all revolve around the use of bolt cutters to remove his hand cuffs and his resulting 19 injuries. Remanding or dismissing the case partially while proceeding with the claim 20 against Hudson could lead to inconsistent results and findings. Accordingly, the Court 21 finds that in the interests of judicial efficiency, the Court should continue to exercise its 22 supplemental jurisdiction over Miller’s state law claims and should address those claims ORDER - 3 1 on the merits. Accordingly, the Court will return this matter to Judge Creatura for 2 consideration of the summary judgment motions already submitted in regards to Miller’s 3 state law claims. 4 B. 5 Hudson’s Objections Hudson objects to the R&R’s conclusion that the record presents genuine disputes 6 of material fact over whether she was deliberately indifferent to Miller’s medical needs. 7 Hudson’s primary argument is that “Plaintiff presented no admissible evidence to support 8 a claim of deliberate indifference to a serious medical need by . . . Hudson.” Dkt. 105 at 9 4. Specifically, Hudson argues that (1) the only objective findings during her examination 10 were a small cut and slight swelling that were properly treated with ice, (2) nothing in the 11 record supports a claim that Hudson ignored Miller’s requests for medical treatment, (3) 12 no medical provider has diagnosed an avulsion fracture, (4) Plaintiff was placed in 13 medical segregation from August 19 through August 24, (5) medical records show that he 14 received care from M.L. Furst, M.D. on August 19, 21, and September 4, but there is not 15 any mention of physical injuries from the incident, and (6) Miller was seen by medical 16 professionals on twelve occasions between August 18, 2015 and October 12, 2015. 17 However, Plaintiff has submitted evidence in the form of his declaration that he 18 gave Hudson numerous medical kites seeking medical attention for his hand that were 19 never properly filed. Dkt. 102 at 6. While this is scant evidence to support his claim, his 20 statements are feasible when considered with other evidence in the record. For instance, it 21 is at least somewhat suspicious or incongruent that Miller filed a grievance seeking 22 medical attention and complaining that he received inadequate care for his hand as soon ORDER - 4 1 as he was moved out of medical segregation, and yet the records from when Miller was in 2 medical segregation lack any indication that Miller was complaining about his hand. See 3 Dkt. 102 at 89–90. While Hudson asserts that the only time she dealt with Miller was 4 when he was initially brought to the outpatient infirmary and the handcuffs were 5 removed, she acknowledges that she may have dealt with him in segregation when 6 “possibly dispensing medication that had been ordered by medical providers. Dkt. 86 at 7 3. This is not necessarily inconsistent with Miller’s statements that he gave medical kites 8 to Hudson when she came to administer his medications. Dkt. 102 at 21. 9 Also, it should be noted that while Miller was placed in medical segregation and 10 received some treatment, the record plainly indicates that this was done in light of mental 11 health and safety concerns and not to treat his hand. Dr. Furst—a psychiatrist—did not 12 note any concerns pertaining to Miller’s hand on the record when providing mental health 13 treatment, but this does not establish that Miller’s hand was not in fact injured. 14 Furthermore, it is not inconsistent with Miller’s testimony that when he mentioned his 15 hand to Dr. Furst, Dr. Furst explained that his focus dealt exclusively with mental health 16 and that Miller would need to talk with his regular provider for physical treatment. Dkt. 17 102 at 20. 18 Finally, the Court notes that there is at least some evidence that Miller’s hand 19 injury was sufficiently severe and painful that a deliberate delay of medical attention and 20 relief would constitute an unnecessary and wanton infliction of pain. Plaintiff’s injury 21 was sufficient enough that he received an immobilizing splint months after his hand was 22 injured. Although the x-ray he eventually received 3 months after the injury does not ORDER - 5 1 confirm that his hand was broken by the removal of his handcuffs with bolt cutters, they 2 do not rule out that possibility. See Dkt. 84 at 27 (“There is an old healed fracture at fifth 3 metacarpal base,” the location of Miller’s injury). Additionally, defendants have failed to 4 point to any evidence contradicting Miller’s description that his hand was severely 5 swollen and remained so for days after the incident. Moreover, it plainly shown from the 6 medical records that Miller does indeed suffer from painful conditions in his hand. 7 Whether or not Miller lacks sufficient evidence to establish that his hand was broken or 8 that his diagnosed hand injuries were actually caused by the cutting of his handcuffs, he 9 has submitted sufficient evidence for a rational juror to believe that he suffered from 10 sufficiently severe and apparent pain that an intentional delay of treatment, such as 11 throwing away medical kites and ignoring medical requests, would constitute deliberate 12 indifference to Millers medical and an unnecessary and wanton infliction of pain. 13 As a final note, the Court recognizes the inherent difficulty in this case. The 14 defendants point to an absence of medical records suggesting a severe hand injury in 15 order support their defense that they were not deliberately indifferent to complaints of 16 pain from a serious injury, yet Miller’s claims are predicated on a theory that medical 17 staff was deliberately indifferent to his medical needs by refusing to process the very 18 medical kites that would have created a record of his painful injury. Ultimately, the Court 19 finds that this case comes down to a credibility determination that creates just sufficient a 20 genuine dispute of material fact as to require submission to a jury. 21 22 The Court having considered the R&R, Plaintiff’s objections, and the remaining record, does hereby find and order as follows: ORDER - 6 1 The R&R is ADOPTED in part as follows: (1) Gilbert’s motion for summary 2 judgment on Miller’s § 1983 claim against her is GRANTED; and (2) Hudson’s motion 3 for summary judgment on Miller’s § 1983 claim against her is DENIED. The Court 4 DECLINES to adopt the R&R in part and the case is RETURNED to Judge Creatura for 5 further proceedings on Defendants’ motion for summary judgment in regards to Miller’s 6 state law claims. 7 Dated this 31st day of May, 2018. 8 9 A BENJAMIN H. SETTLE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?