Binford v. Armstrong

• Court: District Court, E.D. Washington
• Decided: August 23, 2021
• Docket: 4:19-cv-05280
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Aug 23, 2021 3 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 BOBBY LAYTHEN BINFORD, No. 4:19-CV-05280-SAB 10 Plaintiff, 11 v. ORDER DISMISSING ACTION 12 13 TEDDIE1 ARMSTRONG and SHAWN 14 GANNON, 15 Defendants. 16 17 Before the Court is Plaintiff’s Second Amended Complaint pursuant to 42 18 U.S.C. § 1983. ECF No. 30. On July 20, 2021, following remand from the Ninth 19 Circuit Court of Appeals, the Court granted Plaintiff a second opportunity to 20 amend or voluntarily dismiss. ECF No. 29. Plaintiff, a prisoner at the Washington 21

22 1 Plaintiff spells this person’s name as both Teddie and Teddi and the initials 23 provided after the name are sometimes APRN, APNR and ARNP. ECF No. 30 at 24 1, 3 and 5. This person is identified as a Nurse Practitioner responsible for 25 prescribing psychiatric medications. Defendant Shawn Gannon, RN, is identified 26 as a registered nurse who is responsible for dispensing medications to prisoners. Id. 27 at 5. 1 State Penitentiary (“WSP”), is proceeding pro se and in forma pauperis; 2 Defendants have not been served. 3 Plaintiff seeks injunctive relief and $300,000.00 in monetary damages from 4 each Defendant for alleged Eighth, Eleventh, and Fourteenth Amendment 5 violations. ECF No. 30 at 15. Elsewhere, Plaintiff states that he is seeking 6 $2,000,000.00 in monetary damages against each Defendant and declaratory relief 7 for alleged violations of his Eighth and Fourteenth Amendment rights. Id. at 5. He 8 claims that Defendants Armstrong and Gannon denied him “treatment for anti- 9 axority mental health disorder & dispense his psychiatric medication” without 10 providing “postdeprivation procedures.” ECF No. 30 at 5. 11 Although granted several opportunities to present facts showing that 12 Defendants were deliberately indifferent to his serious mental health issues, 13 Plaintiff has failed to do so. Liberally construing the Second Amended Complaint2 14 in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to 15 cure the deficiencies of his prior complaints and that he has failed to state a claim 16 upon which relief may be granted. 17 ELEVENTH AMENDMENT 18 Plaintiff asks the Court to find that Defendants violated his “11th 19 Amendment rights to the United States Constitution.” ECF No. 30 at 15. The 20 Eleventh Amendment provides: “The Judicial power of the United States shall not 21 be construed to extend to any suit in law or equity, commenced or prosecuted 22 against one of the United States by Citizens of another State, or by Citizens or 23 Subjects of any Foreign State.” U.S. Const. amend. XI. This provision involves the 24 sovereign immunity of states. The Court cannot discern how the identified 25

26 2 While this document is labeled Second Amended Complaint, it is the fourth 27 complaint filed in this action. See ECF Nos. 1, 14, 27 and 30. 1 Defendants could have violated the Eleventh Amendment. Therefore, Plaintiff’s 2 request that this Court find a violation of the Eleventh Amendment is denied. 3 FOURTEENTH AMENDMENT 4 The medical care that a prisoner receives is evaluated under the Eighth 5 Amendment of the U.S. Constitution. See Helling v. McKinney, 509 U.S. 25, 31 6 (1993). (“[T]he treatment a prisoner receives in prison and the conditions under 7 which he is confined are subject to scrutiny under the Eighth Amendment.”). To 8 the extent Plaintiff is asserting an entitlement to “postdeprivation processes” under 9 the Fourteenth Amendment regarding the medical treatment he received, this 10 assertion has no basis in law or fact. Plaintiff has failed to state any facts 11 supporting a Fourteenth Amendment violation. See Sandin v. Conner, 515 U.S. 12 472, 483–84 (1995). 13 PLAINTIFF’S ALLEGATIONS 14 In Count I, Plaintiff claims that Defendant Armstrong was deliberately 15 indifferent to his serious medical need in violation of the Eighth and Fourteenth 16 Amendments to the U.S. Constitution. ECF No. 30 at 4. Plaintiff claims that he 17 suffers from Bipolar disorder I and that, between 2011 and 2019, Dr. Grub—who 18 is not named as a Defendant to this action—treated him for this condition. Id. at 6. 19 Plaintiff asserts that the “CRC Committee,” presumably the Care Review 20 Committee, approved the treatment. Id. 21 Plaintiff states that when Dr. Grub’s contract ran out, Plaintiff was re- 22 assigned to Defendant Armstrong’s case load. ECF No. 30 at 6. Plaintiff states that 23 during a January/February 2019 mental health appointment, Defendant Armstrong 24 “signed off on all medications and treatment” for him and continued to “sign off” 25 on the prior physician’s treatment plan until July 8, 2019. Id. 26 Plaintiff asserts that on July 8, 2019, Defendant Armstrong “denied [him] 27 any treatment for bipolar disorder I.” ECF No. 30 at 6. Plaintiff states that he 1 described his bipolar symptoms to Defendant Armstrong, which included the 2 following: interference with his ability to follow simple directions; lack of sleep; 3 hearing voices; difficulty paying attention; lack of motivation; irritability and 4 intolerance; inability to interact with others; high anxiety and energy inhibiting 5 ability to sit still; “dreams of death and dieing [sic]”; and “thoughts of suicide but 6 not presently.” ECF No. 30 at 6. Plaintiff complains that Defendant Armstrong 7 advised him that she would not be prescribing the same treatment as Dr. Grub— 8 and, when Plaintiff argued that she had been continuing the treatment already 9 approved by the CRC, she told Plaintiff that she would not approve the treatment 10 plan. Id. Plaintiff avers that when he asked, “What am I cured then?” Defendant 11 Armstrong stated that she was not treating him for bipolar and ordered Plaintiff to 12 leave her office. ECF No. 30 at 6. Plaintiff states that as he was leaving, Defendant 13 Armstrong issued another directive to leave, and he stated, “I only want to be 14 treated for my bipolarism.” Id. 15 Although Plaintiff describes the symptoms that he attributes to Bipolar 16 Disorder I, ECF No. 30 at 6, he presents no facts showing when and if he was 17 diagnosed with Bipolar Disorder I. Indeed, the only document attached to the 18 Second Amended Complaint containing any reference to Bipolar Disorder lists it 19 under “Axis 1” and modifies it as “unspecified.” ECF No. 30-1 at 8. This 20 document is a Multidisciplinary Team Care Review from 2001 indicating that 21 Plaintiff was sent to the WSP from the Airway Heights Corrections Center more 22 than 20 years ago to prevent self-harm and because he was suspected of planning 23 an escape. Id. Plaintiff asserts throughout his Second Amended Complaint that 24 Defendant Armstrong provided no medication to treat his bipolar disorder. ECF 25 No. 30 at 6–7. 26 Plaintiff states that by July 8, 2019, Defendant Armstrong had interviewed 27 him for a total of two hours, conducted no tests, and had “only the records before 1 her.” Id. at 6. Plaintiff declares that he had informed Defendant Armstrong during 2 unspecified mental health appointments that a Medical Supervisor “documented in 3 [Plaintiff’s] chart as a standing order not to prescribe [Plaintiff] the class of drugs 4 known as psychotropic & antipsychotic.” Id. at 6–7. 5 Plaintiff complains that Defendant Armstrong prescribed these types of 6 drugs “at leas [sic] three times between July 8, 2018 to June 10, 2020[,]” “despite 7 being aware of her supervisors [sic] Order not to because they cause suicide and or 8 Violent thought reactions from plaintiff.” Id. at 7. Plaintiff states that he was told 9 that “the prescription was not the same kinds but in fact they were,” and this 10 resulted in “fights and thought of suicide, aggression with other inmates and 11 mental anguish caused by the effects of plaintiff’s mind fighting the medications 12 perscrible [sic] by Defendant Armstrong” Id. 13 Plaintiff does not specify when these medications were prescribed or the 14 circumstances surrounding the administration of these drugs, nor does he explain 15 what harm he suffered on these three occasions over a nearly two-year span. He 16 makes no allegation that Defendant Armstrong denied him treatment for any 17 resulting aggression or asserted suicidal ideation. Rather he refers the Court to 18 attached Health Services Kites. ECF No. 30 at 7. A review of these attached Health 19 Services Kites reveals no facts supporting a claim of deliberate indifference to 20 Plaintiff’s serious mental health needs. See ECF No. 30-1 at 2–4, 9–12. 21 Rather, they reveal that in August 2019, Defendant Armstrong scheduled 22 Plaintiff to be seen by a psychiatric provider after discontinuing Clonidine on an 23 “as-needed” basis due to the needs of the facility and recent findings concerning 24 prescribing the medication in that manner. ECF No. 30-1 at 2. In November 2019, 25 Defendant Armstrong addressed Plaintiff’s failure to attend a scheduled 26 appointment, advised him of a change of the dosage of Clonidine, warned him that 27 medications may be discontinued if he did not attend scheduled appointments, and 1 advised that his participation in mental health evaluations and follow-up care was 2 necessary for the continued prescription of psychotropic medication. Id. at 4. 3 In March 2020, Defendant Armstrong discontinued oxcarbazepine at 4 Plaintiff’s request. Id. at 11. In June 2020, Defendant Armstrong consulted with 5 the supervisory clinician at Plaintiff’s request and offered Plaintiff the option of 6 treatment with a particular medication and indicated that a routine appointment 7 would be scheduled if Plaintiff did not respond. Id. at 3. The Court can infer no 8 deliberate indifference to serious medical needs from these responses. 9 Another Health Service Kite is difficult to read but appears to concern 10 Plaintiff’s request for treatment for broken ribs in September 2019, with a response 11 that “[t]he provider has ordered imaging . . . . ” ECF No. 30-1 at 9. Plaintiff does 12 not identify who his provider was while he was in the IMU in September 2019. 13 ECF No. 30 at 11. The Mental Health box is notably left unchecked. ECF No. 30-1 14 at 9. The next Health Service Kite is dated September 30, 2019, and shows that x- 15 rays were taken, revealing a rib fracture, and that a five-day prescription for pain 16 medication was ordered, but advising Plaintiff the pain would “likely be longer as 17 these take a month or more to heal.” Id. at 10. These kites were neither addressed 18 to Defendant Armstrong, nor responded to by her. Therefore, the Court cannot 19 infer that Defendant Armstrong was involved in the care of Plaintiff’s ribs in 2019. 20 The last Health Services Kite is Plaintiff’s September 9, 2019 request for an 21 appointment with Dr. Grubb.3 A Psych Associate named E. Erbenich responded on 22 September 23, 2019, advising Plaintiff that “this message” was forwarded to 23 Plaintiff’s “assigned therapist to address.” ECF No. 30-1 at 12. Again, this kite is 24 neither addressed to Defendant Armstrong, nor responded to by her. For these 25

26 3 Plaintiff’s spelling of names is not consistent. Earlier, he spelled this physician’s 27 name as “Grub.” 1 reasons and because Defendant Armstrong had already advised Plaintiff that she 2 did not provide coverage in the IMU, id. at 2, the Court cannot infer that Defendant 3 Armstrong was involved in Plaintiff’s psychiatric care in September 2019. 4 In reference to his Health Services Kites, Plaintiff states, “I think this was 5 done for malace [sic] by her expermental [sic] prescribing [sic] drugs and not 6 telling me they were a class of drugs the supervisor ordered for providers not to 7 administer Plaintiff.” ECF No. 30 at 7. Plaintiff presents no facts from which the 8 Court could infer that experimenting with treatments to ascertain what is presently 9 effective and tolerated is medically unacceptable. Plaintiff admits that Defendant 10 Armstrong has discontinued medications when he has asserted adverse side effects. 11 See ECF No. 30 at 8 and ECF No.30-1 at 11. Plaintiff presents no facts from which 12 the Court could infer that Defendant Armstrong maliciously prescribed 13 medications. Plaintiff’s speculation is insufficient to state a constitutional claim. 14 Plaintiff complains that unspecified medications were not prescribed for his 15 bipolar condition, although he was “led to believe” that they were for treatment of 16 his bipolar condition between 2018 and August 1, 2021. ECF No. 30 at 7. Plaintiff 17 asserts that Defendant Armstrong provided no medication for his bipolar condition. 18 Id. Plaintiff presents no facts indicating that a medication was medically necessary 19 to treat his bipolar condition. 20 Plaintiff states that in September 2019, he was “not getting along with 21 others” and “had broken [his] ribs.” ECF No. 30 at 7. He avers that in response to 22 his Health Services Kite complaining of the pain in his ribs on September 26, 23 2019, he was told, “[t]he provider has ordered imagry [sic] and will move forward 24 with treatment after images have been obtained if necessary.” Id. Plaintiff does not 25 identify who his provider was in September 2019, but he complains that he did not 26 receive an interview for the “cause,” presumably his inability to get along with 27 others. Id. Plaintiff makes no assertion that he specifically sought mental health 1 treatment at that time and that an identified Defendant denied him mental health 2 treatment. 3 Plaintiff indicates that on September 29, 2019, he was advised that x-rays 4 revealed a rib fracture, pain medication had been ordered, and the fracture would 5 likely take more than a month to heal. ECF No. 3 at 7. Plaintiff makes no 6 allegation that he was denied the prescribed pain medication or if so, by whom. 7 Rather, Plaintiff states, “PLAINTIFF was never seen in person to answer 8 how or examined in person or follow-up on this injury or cause. Due to the side 9 effects of bipolar disorder I – as the direct cause of no treatment and confusion and 10 fear as well as all the other symptoms of non-treatment, was a direct result of 11 Defendants [sic] lack of or mistreatment of PLAINTIFF’s indifference to serious 12 mental health medical needs. This is not an isolated incident as plaintiff further, 13 described a total lack of being able to function with his cell partner(s) between the 14 periods described in this complaint.” ECF No. 30 at 7–8. Again, Plaintiff makes no 15 assertion that he specifically requested mental health treatment for his behavior 16 that resulted in broken ribs or his difficulties with cellmates, or that identified 17 Defendants denied him such treatment. Plaintiff’s general allegations that the 18 failure to effectively treat his bipolar condition contributed to his social problems 19 is insufficient to show deliberate indifference to his serious mental health needs. 20 Plaintiff states that on March 3, 2020, after Plaintiff sent Defendant 21 Armstrong a “health care kite” asking her to take him off “oxcarbazepine because 22 it made [him] ‘very aggressive and has increased [his] anger emotion – though not 23 now [he is] off from taking it causes [him] harm to other and possibly [him]self,” 24 she discontinued the drug. ECF No. 30 at 8. Apparently, this drug was prescribed 25 to “benefit” nerve damage in Plaintiff’s legs. Id. Plaintiff complains that Defendant 26 Armstrong “never scheduled any immediate appointment for months later.” Id. 27 Since Plaintiff indicated on his kite that his aggression subsided with his own 1 discontinuation of the medication and Defendant Armstrong discontinued it at his 2 request, the Court cannot infer from the facts presented that Defendant Armstrong 3 was deliberately indifferent to Plaintiff’s serious medical/mental health needs in 4 March 2020, more than two months after Plaintiff had filed his initial complaint in 5 this action. 6 Plaintiff avers that on September 9, 2019, he had requested an appointment 7 with another doctor to “follow up” concerning his “bipolar and manic depression.” 8 ECF No. 30 at 8. He complains that fourteen days later, a “MSW Psych Associate” 9 advised Plaintiff that his message had been forwarded to his therapist to address. 10 Id. Plaintiff states, “Plaintiff was not seen as a result of this submission of a 11 ‘Health Service KITE’. By Defendant or any one else.” ECF No. 30 at 8. However, 12 Plaintiff makes no allegation that the kite was addressed to or reviewed by either of 13 the named Defendants. The Court cannot infer from these assertions that either 14 Defendant was deliberately indifferent to his serious medical needs in September 15 2019. 16 Plaintiff states that in a Level III response to a grievance he filed against 17 Defendant Armstrong regarding his bipolar issue he was advised on October 29, 18 2019, that “appropriate care is being provided per patient care protocols.” ECF No. 19 30 at 8. Although granted numerous opportunities to amend, Plaintiff has failed to 20 present facts supporting a claim of deliberate indifference to his serious medical 21 needs. 22 Plaintiff asserts that on June 10, 2020, nearly six months after he filed this 23 action, Defendant Armstrong prescribed antipsychotic medications that caused 24 unspecified “dangerous side effects.” ECF No. 30 at 9. Plaintiff claims that she 25 falsely accused Plaintiff of requesting a particular medication to treat his bipolar 26 condition and then allegedly blamed Plaintiff for not treating him. Id. These bald 27 accusations, without supporting facts, do not state a claim of deliberate 1 indifference to a serious medical need. 2 Plaintiff challenges the limited time that Defendant Armstrong has 3 interviewed him, which he estimates at four hours. ECF No. 30 at 9. He complains 4 that she has conducted “no testing to draw her non-treatment and treatment based 5 on her diagnosis and prescribing medications.” Id. Plaintiff identifies no testing 6 that is medically necessary. Plaintiff’s allegations are insufficient to show 7 deliberate indifference to a serious medical need. 8 Plaintiff asserts that on July 20 of an unspecified year, a fellow prisoner died 9 while they were practicing their “Native American Sweat-Lodge religion.” ECF 10 No. 30 at 10. Plaintiff indicates that two days after the incident, he requested “a 11 medical emergancy [sic]” and was seen by a mental health counselor. Id. Plaintiff 12 contends, that although he has asked to see his medical provider, Defendant 13 Armstrong, on an emergency basis, she had not “correct[ed] his present medication 14 treatment,” as of the date he filed his Second Amended Complaint. Id. 15 Plaintiff indicates that when he declared a mental health emergency, he was 16 seen by a mental health counselor. If he required follow-up care for his grief and 17 anxiety, then he should appropriately seek such care. Plaintiff’s conclusory 18 assertion that “Defendant’s [sic] ARMSTRON’S [sic] lack of care to plaintiff 19 Binfords [sic] serious medical need is gross negligence amounts to deliberate 20 indifference to Plaintiff’s serious medical needs,” without supporting factual 21 allegations, is insufficient to state an Eighth Amendment claim against Defendant 22 Armstrong. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 23 In Count II, Plaintiff claims that Defendants Armstrong and RN Shawn 24 Gannon violated his Eighth and Fourteenth Amendment rights by cancelling a 25 medication for a non-medical reason. ECF No. 30 at 17. Plaintiff asserts that on 26 August 9, 2019, he was placed in administrative segregation for 47 days. He states 27 that on August 10, 2019, he requested a nighttime dose of Clonidine to alleviate his 1 “symptoms.” ECF No. 30 at 11. 2 Plaintiff’s general reference to all the symptoms he had previously described 3 throughout his Second Amended Complaint is insufficient to show that the 4 symptoms he experienced in August 2019 were a serious medical need. Id. at 11. 5 Plaintiff states that he told Defendant Gannon that he needed the Clonidine for 6 “anxiety and depression problems.” Id. at 12. 7 To establish a violation of the Eighth Amendment, Plaintiff must allege facts 8 showing a “serious medical need,” and that Defendants’ response to the need was 9 deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A 10 serious medical need exists if the failure to treat could result in further significant 11 injury or the “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 12 U.S. 97, 104 (1976). A difference of opinion over proper medical treatment does 13 not constitute deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 14 1989). To establish deliberate indifference, a plaintiff must show a purposeful act 15 or failure to act on the part of the defendant and resulting harm. See Shapley v. 16 Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Plaintiff’s 17 conclusory allegations are insufficient to show deliberate indifference to a serious 18 medical need. 19 Plaintiff complains that when Defendant Gannon came to his door on 20 August 10, 2019, he stated, “Did you stay up all night just to get me over here[?] I 21 am going to talk to the provider to discontinue the meds because we don’t run a 22 regular pill line at this time.” ECF No. 30 at 11. Plaintiff counters that the pill line 23 in the Intensive Management Unit did run on an “as needed” basis, but Defendant 24 Gannon did not want to bring Plaintiff his medication during the night. Id. at 12. 25 Plaintiff asserts that Defendant Gannon had no authority to seek its discontinuation 26 but told the booth officer to inform Plaintiff that a nighttime dose “was canceled.” 27 Id. Plaintiff claims that a daytime pill line nurse told Plaintiff that it was not 1 canceled. Id. 2 Plaintiff states that on a Health Services Kite dated August 13, 2019, 3 Defendant Armstrong advised: “I have discontinued you[r] clonidine 0.2mg at 4 bedtime due to the needs of the facility and the fact pill line does not occur on an 5 as [n]eeded basis. Additionally, I have reviewed the evidence regarding taking 6 clonidine on an as needed basis and cannot continue prescribing this to you in this 7 manner. Hypertension, and consequently cardiac issues. I HAVE INFORMED 8 SCHEDULING YOU RESIDED IN IMU_N at this time and have requested you 9 be seen by a psychiatric perscriber [sic], as IMU-N and IMU-S are not areas of the 10 prison I provide coverage. Should you have further questions feel free to send me a 11 kite.” Id. 12 Plaintiff states that on November 8, 2019, Defendant Armstrong wrote, “ . . . 13 I have changed the bedtime clonidine dose to 0.2mg, as I am aware you have 14 previously been taking an additional 0.2mg of clonidine in your cell in the middle 15 of the night . . . .”Id. at 12. Plaintiff claims that this contradicted Defendant 16 Armstrong’s reasoning for discontinuing the “as needed” nighttime dose of 17 Clonidine because it could cause “cardiac issues and rebound hypertension.” Id. 18 Plaintiff states that he has not had any mental health appointments with Defendant 19 Armstrong since August 13, 2019. Id. Plaintiff does not state what harm resulted 20 from the temporary suspension of Clonidine in August 2019. 21 Plaintiff avers that Dr. Grubb saw him on August 21, 2019, prescribed 22 “Kolonpin” for 7 days as treatment for his “bipolar I Disorder,” but “the order was 23 cancled [sic] days into the treatment . . . .” ECF No. 30 at 12. Elsewhere, Plaintiff 24 indicates that Dr. Grubb “came and [went] in the week of August, 2019[.]” Id. at 25 14. 26 Plaintiff contends that “Defendant Armstrong is the only provider that had 27 the authority at WSP to cancel the order or to be consulted if the order for 1 medication was not in stock.” Id. Plaintiff states a belief that “the out of stock for 2 medication provided by the daytime escorting pill line was false information. 3 Medical protocol and common sense say this is not the case.” Plaintiff has not 4 clearly asserted a claim for relief. His beliefs and speculations regarding the 5 availability of a particular drug do not state a viable claim for relief. Plaintiff does 6 not identify the harm cased from the discontinuation of “Kolonpin” and his general 7 reference to prior numbered paragraphs in his Second Amended Complaint does 8 not support a claim of present harm. 9 Plaintiff asserts that when he was told the “Klonipin4” was discontinued, he 10 was also told that there was no provider in his administrative segregation unit. ECF 11 No. 30 at 14. He avers that he filed a grievance that the grievance coordinator 12 rejected three days later. Id. He does not state the content of the grievance or the 13 response. The Court can infer no constitutional violation from the facts presented. 14 Although granted numerous opportunities to do so, Plaintiff has failed to 15 present facts from which the Court could infer that either Defendant Gannon or 16 Defendant Armstrong acted with deliberate indifference to his serious medical 17 needs. A difference in medical judgment regarding the discontinuation of an “as 18 needed” nighttime dose of Clonidine, even if based on non-medical concerns of the 19 facility and without any resulting harm, does not show deliberate indifference to a 20 serious medical need. 21 Plaintiff identifies no ill effects from the temporary suspension of Clonidine. 22 He presents no facts showing that Defendant Armstrong denied him treatment for 23 any specific suicidal ideations that he reported to her. Furthermore, Plaintiff’s 24

25 4 Plaintiff uses various spellings of “Klonipin,” “Klonapin” and “Kolonpin” in 26 reference to the drug Dr. Grubb prescribed on August 21, 2019. ECF No. 30 at 13– 27 14. 1 speculation about a drug he was informed was “not in stock” does not support a 2 constitutional claim. Plaintiff’s bare allegations against the named Defendants are 3 insufficient to state a claim for deliberate indifference. See Farmer v. Brennan, 511 4 U.S. 825, 837 (1994) (holding that a prison official is deliberately indifferent if he 5 or she knows that a prisoner faces a substantial risk of serious harm and disregards 6 that risk by failing to take reasonable steps to abate it). 7 Although granted the opportunity to do so, Plaintiff has failed to present 8 facts showing that Defendants Armstrong and Gannon denied him treatment for the 9 health effects he reported to them, evidencing deliberate indifference to his serious 10 mental health needs. He has alleged no facts showing what harm resulted to his 11 health that was not otherwise subsequently addressed. 12 Therefore, IT IS HEREBY ORDERED this action is DISMISSED with 13 prejudice for failure to state a claim against identified Defendants upon which 14 relief may be granted. 28 U.S. C. §§ 1915(e)(2) and 1915A(b)(1). 15 Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who 16 brings three or more civil actions or appeals which are dismissed as frivolous or for 17 failure to state a claim will be precluded from bringing any other civil action or 18 appeal in forma pauperis “unless the prisoner is under imminent danger of serious 19 physical injury.” 28 U.S.C. § 1915(g). Plaintiff is advised to read the statutory 20 provisions under 28 U.S.C. § 1915. This dismissal of Plaintiff’s complaint may 21 count as one of the three dismissals allowed by 28 U.S.C. § 1915(g) and may 22 adversely affect his ability to file future claims. 23 // 24 // 25 // 26 // 27 // 1 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, enter judgment, provide copies to Plaintiff at his last known address, and close the file. The Clerk of Court is directed to forward a copy of this Order to the Office of the Attorney General of Washington, Corrections Division. The Court certifies any 5|| appeal of this dismissal would not be taken in good faith. DATED this 23rd day of August 2021

8 9 ‘ Sfuleyld Festa i Stanley A. Bastian 12 Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DISMISSING ACTION -- 15