Reed v. Department of Corrections et al

Filing 147

ORDER ADOPTING 137 REPORT AND RECOMMENDATION AND DENYING DEFENDANTS' MOTION TO CERTIFY; signed by Judge Benjamin H. Settle. The R&R is ADOPTED as modified. Defendants' motion for judgment on the pleadings, Dkt. 132 , and motion to certify, Dkt. 139 are DENIED. (SP)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C16-5993 BHS-DWC

CHARLES V. REED,
Plaintiff,

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v.
STEVEN HAMMOND, LARA
STRICK, ROB WEBER, SARA
SMITH, and JOHN DOES No. 1-6, in
their individual capacities,

ORDER ADOPTING REPORT
AND RECOMMENDATION AND
DENYING DEFENDANTS’
MOTION TO CERTIFY

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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 David W. Christel, United States Magistrate Judge, Dkt. 137, and

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Defendants Steven Hammond (“Hammond”), Sara Kariko (formerly Smith) (“Smith”),

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Rob Weber (“Weber”), and Lara Strick’s (“Strick”) (“Defendants”) objections to the

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R&R, Dkt. 138, Plaintiff Charles V. Reed’s (“Reed”) response to Defendants’ objections,

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Dkt. 140, 1 and Defendants’ motion to certify a question to the Washington Supreme

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Court, Dkt. 139.

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Reed’s Second Amended Complaint alleges that Hammond was the Chief Medical Officer for
the Washington Department of Corrections (“DOC”), Smith was the Facility Medical Director for

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I.

PROCEDURAL HISTORY

On August 29, 2019, Judge Christel recommended that the Court deny

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Defendants’ partial motion for judgment on the pleadings without prejudice. Dkt. 137 at

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1 (citing Dkt. 132). 2 On September 12, 2019, Defendants filed objections, Dkt. 138, and a

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motion to certify a question to the Washington Supreme Court, Dkt. 139. On September

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25, 2019, Reed responded to Defendants’ objections. Dkt. 140. On September 30, 2019,

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Reed responded to Defendants’ motion to certify. Dkt. 141. On October 4, 2019,

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Defendants replied to their motion to certify. Dkt. 142.

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II. DISCUSSION

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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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In their objections, Defendants argue Judge Christel erred in failing to dismiss

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Reed’s state law claims as a matter of law and erred in finding Defendants were not

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entitled to qualified immunity from Reed’s claims as alleged as a matter of clearly

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established law. Dkt. 138. In their motion for certification, Defendants argue that if the

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Court doubts their position on Reed’s state law claims, the Court should certify a

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question to the Washington Supreme Court to decide the issue. Dkt. 139.

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Stafford Creek Corrections Center, Weber was the Health Services Manager for the DOC, and Strick was
the Statewide Infectious Diseases Physician for the DOC. Dkt. 96, ⁋⁋ 26–29.
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Additional procedural history of this case is available in Judge Christel’s May 8, 2019 Order.
Dkt. 120 at 2–3.

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A.

State Law Medical Negligence
RCW 7.70.150 (“the certificate of merit statute”) requires a plaintiff in a medical

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malpractice case to file a certificate of merit from a medical expert at the time of filing

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suit. Putman v. Wenatchee Valley Med. Ctr. P.S., 166 Wn.2d 974, 985 (2009) (“Putman”)

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held that the certificate of merit statute was unconstitutional “because it violates the right

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of access to courts and conflicts with the judiciary’s inherent power to set court

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procedures.” The State Supreme Court explained that “[o]btaining the evidence necessary

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to obtain a certificate of merit may not be possible prior to discovery” and concluded that

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“[r]equiring plaintiffs to submit evidence supporting their claims prior to the discovery

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process violates the plaintiffs’ right of access to the courts.” Id. at 979.

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Waples v. Yi, 169 Wn.2d 152, 155 (2010) (en banc) held that a related provision of

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Washington law which required plaintiffs to give defendants in medical malpractice cases

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90 days notice of their intent to file suit was unconstitutional because it violates the

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separation of powers. The Washington Supreme Court explained that the notice provision

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dealt with procedural, not substantive rights and impermissibly added an additional step

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for commencing a suit beyond those required by the Washington Superior Court Civil

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Rules. Id. at 160 (citing CR 3(a)). McDevitt v. Harborview Med. Ctr., 179 Wn.2d 59, 62–

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63, 74–75 (2013) (en banc) (“McDevitt”) “further explain[ed]” the holding in Waples,

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finding Waples was applicable to suits against private parties but inapplicable to suits

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against state defendants. The Washington Supreme Court concluded that “the 90 day

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presuit notice requirement is constitutional as applied against the State on the grounds

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that the legislature may establish conditions precedent, including presuit notice

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requirements” pursuant to its authority in art. II, § 26 of the Washington Constitution.

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McDevitt, 179 Wn.2d at 63. The Washington Supreme Court reasoned that Waples was

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properly characterized as an as-applied, rather than facial, decision on the

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unconstitutionality of the notice requirement because it involved only private parties and

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thus did not address art. II, § 26 or the State’s waiver of sovereign immunity, and because

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a severability clause, RCW 43.72.911, provided that “[i]f any provision of this act or its

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application to any person or circumstance is held invalid, the remainder of the act or the

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application of the provision to other persons or circumstances is not affected.” Id. at 74.

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Defendants argue that the reasoning used in McDevitt to limit Waples to an “as

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applied” holding pertaining only to private parties also “narrows the holding in Putman to

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an ‘as applied’ holding pertaining only to private parties, not State defendants.” Dkt. 138

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at 2. Judge Christel disagreed with this line of argument, reasoning that unlike the

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certificate of merit requirement in Putman which did burden access to the courts, the

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Washington Supreme Court found the presuit notice requirement in McDevitt was

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constitutional as applied against State defendants in part because it “does not constitute a

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substantial burden on the ability of government tort victims to obtain relief.” Dkt. 137 at

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5 (citing McDevitt, 179 Wn.2d at 68). Judge Christel concluded that “nothing in McDevitt

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indicates that the Washington Supreme Court intended to apply its holding to the

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certificate of merit statute.” Dkt. 137 at 5.

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Defendants move for certification, arguing that while the Court “could predict that

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Washington courts would apply the reasoning in McDevitt to this case,” if the Court has

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any doubts about this conclusion, certification is appropriate. Dkt. 139 at 2–3. Reed

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responds that while he does not have a strong objection to the motion to certify, the case

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should not be stayed during certification as it is unlikely that the Washington Supreme

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Court would apply any decision retroactively as against Reed and thus might not answer

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the constitutional question at all. Dkt. 141 at 1, 3.

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When there is no controlling Washington Supreme Court precedent on issues of

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state law, the Court is bound to apply the law as it believes the Washington Supreme

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Court would under the circumstances. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77–80

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(1938). “If there be no decision by [the state’s highest] court then federal authorities must

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apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of

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other courts of the State.” Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967).

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In McDevitt, the Washington Supreme Court declined to apply its holding

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retroactively, explaining that (1) its decision was not clearly foreshadowed, (2)

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retroactive application of the decision would impede the legislature’s policy objective

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regarding presuit notification requirements, and (3) retroactive application would create a

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substantially inequitable outcome. 179 Wn.2d at 76 (citing Chevron Oil Co. v. Huson,

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404 U.S. 97 (1971)).

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While Defendants present an unresolved issue of state law, the Court concludes

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that under the circumstances any decision of the Washington Supreme Court on a

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certified question would be applied prospectively and would not operate to bar Reed’s

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claims in this case. Erie R.R., 304 U.S. at 77–80. In other words, even if the question was

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answered in Defendants’ favor, it is highly unlikely that the court would enforce the

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requirement to preclude Reed’s claim. Therefore, for these reasons, the Court denies the

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objection to the R&R on the certificate of merit issue and denies the motion to certify.

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B.

Qualified Immunity

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Specific Procedural History

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On September 25, 2017, Defendants moved for summary judgment on Reed’s

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Eight Amendment claim for deliberate indifference to a serious medical need. Dkt. 40.

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Defendants argued that Reed had failed to establish the violation of a constitutional right

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and, even if he did establish that violation, Defendants were entitled to qualified

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immunity because the law was not sufficiently clear. Id. at 13–24. On January 30, 2018,

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Judge Christel issued an R&R recommending that the Court grant the motion because

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Reed failed to establish the violation of a constitutional right. Dkt. 57. On April 19,

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2018, the Court declined to adopt the R&R. Dkt. 62. The Court concluded that

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Defendants had failed to establish an absence of material questions of fact regarding the

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violation of Reed’s constitutional rights. Id. at 4–9. The Court then concluded that the

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best path forward would be to refer the matter to Judge Christel to address Defendants’

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other bases for summary judgment such as lack of personal participation and whether the

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law was clearly established. Id. at 9–11. The Court also appointed counsel for Reed. Id.

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On August 9, 2018, Judge Christel issued a second R&R recommending that the

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Court grant Defendants’ motion for summary judgment on the issue of qualified

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immunity. Dkt. 87. On November 11, 2019, the Court adopted the R&R in part and

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declined to adopt it in part. Dkt. 90. First, the Court agreed with the conclusion that

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there was no clearly established law on the issue of whether the DOC’s HCV policy was

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unconstitutional on its face. Id. at 2. The Court concluded that the key distinction was

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that the policy included exceptions to the categorical denial of treatment and the

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exceptions were based on an individual’s objective symptoms. Id.

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Second, regarding Reed’s objective symptoms, the Court found that the R&R did

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not accurately reflect the record. Id. at 3–6. The Court concluded that Reed should be

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given an opportunity to discover evidence to counter Defendants’ medical expert

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evidence and that it was possible that questions of fact could exists whether Defendants

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were negligent or deliberately indifferent. Id. Thus, the Court declined to adopt the R&R

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on all other issues and referred the matter for further consideration of Reed’s motion to

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amend the complaint and reopen discovery. Id. at 7.
On January 25, 2019, Reed filed an amended complaint. Dkt. 96. Reed asserts

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one claim for violation of his Eight Amendment right and one claim for medical

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malpractice under Washington law. Id. ¶¶ 32–50.

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On February 14, 2019, the Court adopted Judge Christel’s R&R recommending

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that Defendants’ original motion for summary judgment, Dkt. 40, be denied as moot in

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light of the amended complaint. Dkt. 101.

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On February 22, 2019, Judge Christel issued a scheduling order setting August 22,
2019 as the deadline for completion of discovery.
On March 20, 2019, Defendants filed another motion for summary judgment on

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qualified immunity despite the order reopening discovery. Dkt. 108. On April 9, 2019,

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Defendants filed a motion for a protective order requesting that all discovery be stayed

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pending determination of their motion for summary judgment. Dkt. 113. In other words,

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Defendants sought a determination that there are no disputes of material fact and an order

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precluding Reed from propounding discovery to gather relevant facts. On May 8, 2019,

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Judge Christel denied both the motion for summary judgment and the motion for

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protective order without prejudice. Dkt. 120. On May 22, 2019, Defendants filed

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objections to Judge Christel’s order. Dkt. 121. On June 18, 2019, the Court denied

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Defendants’ objections agreeing with Judge Christel that Defendants’ motion for

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summary judgment was premature. Dkt. 127. The Court stated that nothing precludes

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Defendants from filing a motion for judgment on the pleadings based on qualified

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immunity. Id. at 2–3.

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On July 9, 2019, Defendants filed a motion for judgment on the pleadings. Dkt.

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132. On August 29, 2019, Judge Christel issued an R&R recommending in part that the

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Court deny the motion because additional discovery is necessary and “qualified immunity

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cannot be resolved on the pleading in this case . . . .” Dkt. 137 at 6–9. On September 12,

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2019, Defendants filed objections. Dkt. 138.

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2.

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Reed’s amended complaint contains numerous allegations that “Defendants were

Merits

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recklessly and deliberately indifferent” to his serious medical needs. See, e.g., Dkt. 96,

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¶¶ 34–40. Defendants request qualified immunity as to two specific allegations, which

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Defendants refer to as (1) the failure to initiate a review claim and (2) the right to a

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Fibroscan claim. Dkt. 132 at 13–16. Reed responded in part by arguing that Defendants

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fail to seek a “coherent form of relief” because they are requesting that the Court

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“dismiss theories and evidence rather than claims—small pieces of Mr. Reed’s case, such

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as the fact that his monitoring was inadequate and he should have been told when his

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treatment options changed.” Dkt. 135 at 14–15. The Court agrees with Reed.

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A Rule 12(c) motion for judgment on the pleadings is reviewed under the Rule

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12(b)(6) standard. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir.

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1989) (“Because the motions are functionally identical, the same standard of review

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applicable to a Rule 12(b) motion applies to its Rule 12(c) analog.”). Rule 12(b)(6)

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explicitly states the defense of “failure to state a claim upon which relief can be granted.”

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Fed. R. Civ. P. 12(b)(6). Thus, “[a] dismissal for failure to state a claim is appropriate

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only where it appears, beyond doubt, that the plaintiff can prove no set of facts that would

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entitle it to relief.” Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).
In this case, Defendants seek qualified immunity as to particular allegations in

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support of Reed’s claim. Defendants, however, provide no authority for the proposition

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that they may separate and attack particular allegations that support a claim. The Court

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finds this failure to be dispositive as to Defendants’ motion because Rule 12(b)(6) is “a

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screening mechanism designed to weed out cases that do not warrant either discovery or

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trial.” Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013); see also Rutter Group Prac.

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Guide Fed. Civ. Pro. Before Trial Ch. 9-D, § 9:188.1 (“A Rule 12(b)(6) motion cannot be

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used to challenge just certain allegations within a claim while the underlying claim is not

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itself challenged.”). Once discovery is complete, Rule 56 allows parties to seek judgment

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on a “claim” or “part of [a] claim.” Fed. R. Civ. P. 56(a). Therefore, the Court denies

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Defendants’ motion for judgment on the pleadings because it improperly requests relief

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as to individual allegations within Reed’s Eighth Amendment claim.

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III. ORDER

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Therefore, the Court having considered the R&R, Defendants’ objections,

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Plaintiff’s response, and the remaining record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED as modified; and

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(2)

Defendants’ motion for judgment on the pleadings, Dkt. 132, and motion to
certify, Dkt. 139, are DENIED.

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Dated this 13th day of January, 2020.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 10