Silva v. Sanders

Opinion

1 2 3

4 5 UNITED STATES DISTRICT COURT AT SEATTLE 7 RAMON SAUL SILVA, JR., CASE NO. 2:21-cv-00472-JHC 8 Plaintiff, ORDER RE: REPORT AND 9 RECOMMENDATION v. 10 BENJAMIN SANDERS, 11 Defendant. 12 13

14 I. 16 This matter comes before the Court on the Report and Recommendation of United States 17 Magistrate Judge David W. Christel (Dkt. # 44) and the objections thereto filed by Plaintiff 18 Ramon Silva, Jr. (Dkt. # 45). Plaintiff alleges that Defendant Benjamin Sanders, the Medical 19 Director of Jail Health Services (“JHS”), which provides medical services to inmates at the King 20 County jail, acted with deliberate indifference by failing to provide Plaintiff with prescription 21 glasses. Dkt. # 7. Defendant moved for summary judgment. Dkt. # 32. Magistrate Judge 22 Christel recommends to the Court that it grant Defendant’s motion for summary judgment and 23 revoke Plaintiff’s in forma pauperis (“IFP”) status for purposes of any appeal. Dkt. # 44. 24 1 Plaintiff objected to Judge Christel’s Report and Recommendation (Dkt. # 45), and Defendant 2 filed a response (Dkt. # 46). Plaintiff filed a reply (Dkt. # 47) and Defendant moved to strike the 3 reply (Dkt. # 48). The Court granted the motion to strike the reply. Dkt. # 54. Having reviewed 4 the filings, to the extent set forth below, the Court ADOPTS the Report and Recommendation 5 and GRANTS Defendant’s motion for summary judgment. 6 II. 7 BACKGROUND1 8 Defendant, as the medical director at the Jail, supervises the JHS staff of medical 9 providers. Dkt. # 34, Sanders Dec., ¶ 3. Defendant also provides “direct patient care, review[s] 10 patient records for quality assurance and improvement, and serve[s] as part of the leadership 11 team of JHS.” Id. 12 On February 16, 2019, Plaintiff submitted a medical complaint (“kite”) complaining of 13 extreme eye pain after coming to the Jail without his glasses. Dkt. # 34, Sanders Dec., ¶ 18; Ex. 14 B. Plaintiff was provided with information about obtaining reading glasses. Id. Plaintiff 15 continued to complain of eye pain in February and March 2019. See id. at ¶¶ 19–22, 24. JHS 16 staff instructed him to contact his family or attorney to bring him his glasses and that optometry 17 services were not provided by JHS. Id. at ¶¶ 19, 21. “JHS provides or refers for 18 ophthalmological specialty care to address serious health problems that affect inmates’ eyes.” 19 Id. at ¶ 4. JHS does not consider refractive errors—a general term to describe issues with 20 focusing—to be “serious health problems” and “JHS therefore does not have equipment to 21 perform optometry services, does not employ optometrists, does not refer for optometric 22 services, and does not prescribe corrective lenses[.]” Id. at ¶¶ 9, 11.

23 1 This background section is derived almost entirely from the Report and 24 Recommendation (Dkt. # 44 at 2–5). 1 On March 26, 2019, Plaintiff sent Defendant a personal letter asking for an explanation as 2 to why he had not received an eye appointment, explaining that due to his lack of prescription 3 glasses he was experiencing eye pain, headaches, and dizziness, stating that his vision had begun

4 to worsen over the past week, and requesting prescription glasses. Id. at ¶ 25. Defendant 5 responded the next day suggesting that Plaintiff submit a kite for reading glasses or request 6 glasses through his legal team. Id. Plaintiff continued to write medical kites to JHS complaining 7 of eye pain in the following weeks and JHS continued to advise him that JHS did not provide 8 optometry services and that he should seek prescription glasses through his friends, family, or 9 legal team. Id. 10 On April 2, 2019, Plaintiff moved in King County Superior Court for an order compelling 11 JHS to provide him with glasses. Dkt. # 33, Froh Dec., Ex. D, E. On April 23, 2019, after 12 speaking with the Senior Deputy Prosecuting Attorney on Plaintiff’s case, non-party Advanced

13 Registered Nurse Practitioner (“ARNP”) Catherine Schroeder recommend that Plaintiff be 14 evaluated for complaints of damage to his eyes. Dkt. # 34, Sanders Dec., ¶ 26, Ex. J. The 15 appointment was scheduled for April 25, 2019. Id. Plaintiff’s medical record indicates that he 16 failed to attend the clinic appointment to evaluate his eyes. Id. at ¶ 27. On April 27, 2019 17 Plaintiff sent a kite to JHS stating, “I did not refuse my appointment, officers have been denying 18 my visits.” Dkt. # 36, Ex. E. 19 On May 7, 2019, the superior court ordered Plaintiff to try to locate his prescription 20 through an investigator and to use that prescription to obtain glasses. Dkt. # 33, Froh Dec., Ex. 21 F. Also on May 7, Plaintiff was seen by non-party Dr. Roger Higgs who worked for JHS. Id. at 22 ¶ 28. Dr. Higgs noted Plaintiff’s near vision was excellent and Plaintiff’s sole concern was

23 seeing things at a distance. Id. Dr. Higgs did not note any disease of the eye and determined 24 Plaintiff’s reported pain was of unknown etiology. Id. The treatment notes indicate Plaintiff 1 complained “of eye pain that is a result of straining eyes as he must constantly use the muscles to 2 focus the lens in his eyes due to poor distance vision.” Dkt. # 34 at 47. Plaintiff told Dr. Higgs 3 that “the eye pain would be resolved if he had glasses.” Id. Dr. Higgs reported he would request

4 an ophthalmology consultation, which was scheduled for July 24, 2019. Id.; Dkt. # 34, Sanders 5 Dec., ¶¶ 28–29. 6 Plaintiff continued to complain via kites of not being provided with glasses in May and 7 June 2019. See Dkt. # 34, Sanders Dec., ¶ 30; see also Dkt. # 34 at 51, 53. According to his 8 medical records, Plaintiff refused to attend two exams with a triage nurse in June and stated that 9 he wanted to document that he was requesting eyeglasses and JHS was not providing glasses. 10 Dkt. # 34, Sanders Dec., ¶ 30, 31, Ex. N, O. On July 24, 2019, non-party Dr. Ashley Roldan, an 11 ophthalmologist, evaluated Plaintiff. Dkt. # 34, Sanders Dec., ¶ 32. Plaintiff had a normal eye 12 exam and Dr. Roldan provided Plaintiff with a prescription for a refractive error. Id.; Dkt. # 34

13 at 55–56. On September 10, 2019, a competency report noted Plaintiff was wearing glasses. 14 Dkt. # 33, Froh Dec., ¶ 15; Dkt. # 34, Sanders Dec., ¶ 35. It is unclear from the records who 15 arranged for Plaintiff to obtain the glasses or whether they were prescription glasses. Dkt. # 33, 16 Froh Dec., ¶ 15. 17 Plaintiff filed a 28 U.S.C. § 1983 lawsuit against Defendant, alleging deliberate 18 indifference under the Eight and Fourteenth Amendments. Dkt. # 7. Defendant moved for 19 summary judgment. Dkt. # 32; Dkt. # 33–34 (supporting evidence). Plaintiff filed responses to 20 the Motion for Summary Judgment (Dkt. # 36, 42), and Defendant filed replies (Dkt. # 39, 43). 21 Magistrate Judge Christel recommended that the Court grant Defendant’s motion for summary 22 judgment. Dkt. # 44. Plaintiff filed objections and Defendant filed a response. Dkt. # 45, 46.

23 Plaintiff filed a reply and Defendant moved to strike the reply. Dkt. # 47, 48. The Court struck 24 the reply. Dkt. # 54. 3 A. Standard of Review

4 A district court has jurisdiction to review a magistrate judge’s report and 5 recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must 6 determine de novo any part of the magistrate judge’s disposition that has been properly objected 7 to.” Id. “A judge of the court may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 9 B. Summary Judgment Standard 10 Summary judgment is proper only if the evidence, when viewed in the light most 11 favorable to the non-moving party, shows “that there is no genuine dispute as to any material fact 12 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also

13 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party is entitled to judgment as 14 a matter of law when the nonmoving party fails to make a sufficient showing on an essential 15 element of a claim in the case on which the nonmoving party has the burden of proof. Celotex 16 Corp., 477 U.S. at 323. 17 A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, 18 Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” if the evidence is such that 19 reasonable persons could disagree about whether the facts claimed by the moving party are true. 20 Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983). “Uncorroborated allegations and 21 ‘self-serving testimony’ will not create a genuine issue of material fact.” Heko Servs., Inc. v. 22 ChemTrack Alaska, Inc., 418 F. Supp. 3d 656, 660 (W.D. Wash. 2019) (quoting Villiarimo v.

23 Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)). 24 1 The moving party bears the initial burden of informing the court of the basis of its motion 2 and citing parts of the materials in the record that show the absence of a genuine issue of fact. 3 Celotex Corp., 477 U.S. at 323. If the moving party meets its burden, then the non-moving party

4 “must make a showing sufficient to establish a genuine dispute of material fact regarding the 5 existence of the essential elements of [their] case that [they] must prove at trial.” Galen v. Cnty. 6 Of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The Court is “required to view the facts and draw 7 reasonable inferences in the light most favorable to the [non-moving] party.” Scott v. Harris, 8 550 U.S. 372, 378 (2007). 9 C. Qualified Immunity 10 Both parties raise viable arguments as to summary judgment on Plaintiff’s Section 1983 11 claim. But in any event, Defendant raises a meritorious qualified immunity defense to which 12 Plaintiff does not respond. The Court concludes that, as a matter of law, qualified immunity bars

13 Plaintiff’s claim against Defendant and grants summary judgment on that basis. 14 “The doctrine of qualified immunity protects government officials from liability for civil 15 damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or 16 constitutional right, and (2) that the right was clearly established at the time of the challenged 17 conduct.’” Wood v. Moss, 572 U.S. 744, 757–58 (2014) (quoting Ashcroft v. al–Kidd, 563 U.S. 18 731, 735 (2011)). “Qualified immunity balances two important interests—the need to hold 19 public officials accountable when they exercise power irresponsibly and the need to shield 20 officials from harassment, distraction, and liability when they perform their duties reasonably.” 21 Pearson v. Callahan, 555 U.S. 223, 231 (2009). 22 Courts should not “define clearly established law at a high level of generality.” Ashcroft,

23 563 U.S. at 742. A defendant “‘cannot be said to have violated a clearly established right unless 24 the right’s contours were sufficiently definite that any reasonable official in the defendant’s 1 shoes would have understood that he was violating it.’” Kisela v. Hughes, 138 S. Ct. 1148, 1153 2 (2018) (quoting Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014)). “Thus, our ‘task is to 3 determine whether the preexisting law provided the defendants with fair warning that their

4 conduct was unlawful.’” Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir. 2010) (quoting 5 Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136–37 (9th Cir.2003)) (internal 6 quotation marks omitted). “Qualified immunity thus protects ‘all but the plainly incompetent or 7 those who knowingly violate the law.’” J. K. J. v. City of San Diego, 17 F.4th 1247, 1259 (9th 8 Cir. 2021) (quoting Rico v. Ducart, 980 F.3d 1292, 1298 (9th Cir. 2020)). “In analyzing whether 9 rights are clearly established, we look to then-existing ‘cases of controlling authority’ or, absent 10 such cases, to a ‘consensus’ of persuasive authorities.” Id. at 1259 (quoting Evans v. Skolnik, 11 997 F.3d 1060, 1066 (9th Cir. 2021)). “In the absence of binding precedent, courts should look 12 to available decisions of other circuits and district courts to ascertain whether the law is clearly

13 established.” Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 967 (9th Cir. 2010). A 14 plaintiff “bears the burden of showing that the right at issue was clearly established.” Emmons v. 15 City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019) (quoting Alston v. Read, 663 F.3d 1094, 16 1098 (9th Cir. 2011)). 17 Plaintiff claims that, under the Fourteenth Amendment, Defendant was deliberately 18 indifferent in failing to provide him medical care. See Gardner v. Las Vegas Metro. Police 19 Dep’t, 831 F. App’x 365 (9th Cir. 2020) (“Courts apply an objective deliberate indifference 20 standard to claims of inadequate medical treatment brought by pretrial detainees”); Gordon v. 21 Cnty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (when a plaintiff’s allegation of a 22 violation of their constitutional right is based on conduct occurring during their confinement as a

23 pretrial detainee, their rights derive from the Fourteenth Amendment, not the Eight Amendment). 24 1 Thus, the question is whether there exists clearly established law under the Fourteenth 2 Amendment prohibiting Defendant’s conduct. 3 Binding authority does not establish that Defendant’s action, or lack thereof, violated

4 clearly established law. Colwell v. Bannister, which addresses a somewhat similar factual 5 situation, is distinguishable. 763 F.3d 1060 (9th Cir. 2014). In Colwell, the plaintiff suffered 6 from cataracts that made him blind in one eye. Id. at 1063. As a result of his monocular 7 blindness, the plaintiff “ran his hand through a sewing machine on two occasions while 8 working”; “ran into a concrete block, splitting open his forehead”; “regularly hit[] his head on 9 the upper bunk of his cell”; and triggered fights by bumping into other inmates. Id. at 1067. 10 Two medical specialists examined the plaintiff and recommended that he receive cataract 11 surgery, but the defendants denied the surgery, citing an administrative policy that provided that 12 an inmate must “endure reversible blindness in one eye if he can still see out of the other.” Id. at

13 1068. The Ninth Circuit reversed the trial court’s grant of summary judgment in favor of the 14 defendants stating that the defendants’ actions were “the very definition of deliberate 15 indifference.” Id. 16 There are some similarities between Colwell and this case: the medical issue pertains to 17 eyesight and Defendant denied Plaintiff’s request for an eye exam and prescription glasses based 18 on a JHS policy. But unlike in Colwell—where the plaintiff presumably had no other avenue to 19 access cataract surgery while incarcerated—it is undisputed that Defendant and other JHS staff 20 repeatedly advised Plaintiff that he could ask his family, friends, or legal counsel for prescription 21 glasses. Plaintiff fails to raise a genuine issue of material fact over whether he tried and failed to 22 do so or whether such a course of action was unavailable to him. Additionally, this case involves

23 an approximately three-month delay in receiving an exam and seven-month delay in obtaining 24 1 glasses2 compared to the blanket denial of treatment seen in Colwell. Finally, Plaintiff submits 2 no evidence that Defendant denied treatment against the recommendation of medical specialists. 3 Non-binding cases also suggest that Defendant’s actions, or lack thereof, did not violate 4 clearly established law. See Dorlette v. Wu, No. 3:16-CV-318 (VAB), 2019 WL 1284812, at *7– 5 9 (D. Conn. Mar. 20, 2019) (granting summary judgment for the defendants when the plaintiff 6 experienced an eight-month delay in receiving prescription glasses despite complaining of pain, 7 eye strain, and headaches during that time because he provided no evidence that the delay had a 8 serious effect on his health); Davidson v. Desai, 817 F. Supp. 2d 166, 187–88 (W.D.N.Y. 2011) 9 (granting the defendants’ motion for summary judgment where “although Plaintiff maintains that 10 his inability to obtain proper eyeglasses required Plaintiff rely on his outdated prescription 11 lenses, resulting in eyestrain and headaches, . . . Plaintiff fails to allege that such symptoms 12 impaired Plaintiff’s daily activities,” and where the plaintiff was not prevented from obtaining

13 glasses from “an outside source”); Weatherspoon v. Dallas Cnty. Med. Dep’t, No. 3:04-CV- 14 1644-BF(H), 2006 WL 1234825, at *11 (N.D. Tex. May 9, 2006) (“The Court finds that an 15 objectively reasonable official considering the law as it existed at the time would not have 16 believed that he was violating Plaintiff’s constitutional rights by failing to provide Plaintiff with 17 prescription eyeglasses at UTMB’s expense.”). Accordingly, the Court cannot conclude that the 18 law was sufficiently definite that Defendant would have known whether he was violating it. See 19 Kisela, 138 S. Ct. at 1153 (2018) (Defendant “‘cannot be said to have violated a clearly 20 established right unless the right’s contours were sufficiently definite that any reasonable official 21

22 2 Though the record does not state that the glasses Plaintiff was seen wearing in September were in his prescription, he does not contend that he still lacks glasses, and there are 23 “no documented complaints or comments in the medical record regarding [Plaintiff’s] vision, request for glasses and optometry services, or continued eye pain after August 8, 2019. Dkt. # 24 34, Sanders Dec. ¶ 33. l in the defendant’s shoes would have understood that he was violating it.’” (quoting 2 || Plumhoff, 572 U.S. at 778-79)). 3 D. IFP on Appeal 4 For the reasons explained by Judge Christel, the Court adopts the Report and 5 Recommendation’s recommendation that Plaintiff's IFP status be revoked for purposes of an 6 appeal. 7 IV. g CONCLUSION 9 For the foregoing reasons, the Court hereby ORDERS as follows: 10 (1) The Court ADOPTS the Report and Recommendation as to the recommended 11 disposition; 12 (2) The Court GRANTS Defendant’s motion for summary judgment (Dkt. # 32); 13 (3) The Court STRIKES Plaintiff's motion for a ruling on the Report and 14 Recommendation (Dkt. # 58) as moot; and 15 (4) The Court directs the Clerk to send copies of this order to the parties and to 16 Magistrate Judge Christel. 17 Dated this Ist day of July, 2022. 18 ] bn 4. Chur 19 John H. Chun United States District Judge 20 21 22 23 24 ORDER RE: REPORT AND