Stanard v. Dy

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 ROBERT A. STANARD, CASE NO. C19-1400-RSM 9 Plaintiff, 10 ORDER ADOPTING REPORT AND RECOMMENDATION AND v. DISMISSING ACTION 11 MARIA DY, et al., 12 Defendants. 13

14 I. INTRODUCTION 15 This matter comes before the Court on the Report and Recommendation (“R & R”) of the 16 Honorable Michelle L. Peterson, United States Magistrate Judge. Dkt. #36. The Court has 17 reviewed Plaintiff’s complaint, Defendants’ motion to dismiss, the R & R, Plaintiff’s objections 18 thereto, and the remaining record. The Court agrees with the R & R that Defendants’ motion to 19 dismiss should be granted, and that Plaintiff’s complaint and this action should be dismissed with 20 prejudice. 21 // 22

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 II. BACKGROUND 2 A. Factual Background 3 The Court adopts the relevant factual background set forth in the R & R. See Dkt. #36 at 4 2-5. Plaintiff Robert Stanard proceeds pro se and in forma pauperis (“IFP”) in this civil rights

5 action pursuant to 42 U.S.C. § 1983. Plaintiff is currently confined at the Federal Correctional 6 Institution in Sheridan, Oregon (“FCI Sheridan”). However, the claims at issue in this action took 7 place during Plaintiff’s confinement at the Federal Detention Center in SeaTac, Washington 8 (“FDC SeaTac”) in 2018 before his transfer to FCI Sheridan. 9 Plaintiff entered FDC SeaTac on November 10, 2016, was remanded to custody after an 10 initial appearance, and was subsequently ordered detained pending trial. Plaintiff arrived at FDC 11 SeaTac with a pre-existing Hepatitis C diagnosis. Plaintiff claims he discussed his Hepatitis C 12 diagnosis and possible treatment with Dr. Maria Dy, medical doctor at FDC SeaTac, upon arrival 13 to SeaTac but refused medical help at that time. Dkt. #32 at 5.

14 Plaintiff was convicted in early January 2018 and sentenced on July 13, 2018. He remained 15 at FDC SeaTac until late September 2018, at which point he was transferred to FCI Sheridan. 16 Following his conviction, Plaintiff began requesting treatment for his Hepatitis C from FDC 17 SeaTac staff, including Dr. Dy, Health Services Administrator McDermont, and Warden Dan 18 Sproul. Defendants rejected his request because he was considered a pretrial detainee, and his 19 AST-Platelet Ration Index (“APRI”), used by the U.S. Bureau of Prisons (“BOP”) to assess liver 20 fibrosis and cirrhosis, was not within the range to receive priority treatment under then-existing 21 BOP policy. 22 //

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 Plaintiff pursued his requests for Hepatitis C treatment through the BOP administrative 2 process. He submitted a BP-8 form on March 2, 2018 and, after not receiving a response, 3 submitted a second request in April 2018 asking for immediate treatment. On May 13, 2018, 4 Plaintiff received a response to his second request explaining that he was denied based on his status

5 as a pretrial detainee and APRI level, but that he would continue to be monitored. 6 Plaintiff then submitted a BP-9 request to Warden Sproul, which was denied on May 22, 7 2018 on the same basis related to his pretrial detainee status and APRI level. On May 30, 2018, 8 Plaintiff timely appealed the warden’s decision by submitting a BP-10 to the Western Regional 9 Director, J. Baltazar. Plaintiff argued that his status had changed given that he was convicted in 10 January 2018, and that his disease affected his enjoyment and participation in daily activities. On 11 October 7, 2018, after not receiving a timely response to his BP-10 from the Western Regional 12 Director, Plaintiff appealed to the central office by submitting a BP-11. By that time, Plaintiff had 13 recently been transferred to FCI Sheridan.

14 On December 6, 2018, Plaintiff received a response to his BP-10 appeal concluding that 15 Plaintiff had received appropriate care consistent with BOP clinical guidelines. Before Plaintiff 16 received responses to his appeals, the BOP updated its clinical guidance for Hepatitis C treatment 17 that allowed treatment to all inmates, including pre-trial detainees. Following his transfer to FCI 18 Sheridan, Plaintiff informed medical staff there that he wanted to receive Hepatitis C treatment. 19 New laboratory tests were ordered and Plaintiff was placed on a list for follow-up evaluation. 20 After he was authorized to receive treatment, Plaintiff successfully completed an eight-week 21 course of treatment in May 2019. 22 //

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 B. Procedural Background 2 Plaintiff filed this action on August 30, 2019 seeking $30 million in damages against 3 federal officers under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Dkt. 4 #1. In his amended complaint, Plaintiff alleges violations of his Fifth Amendment right to equal

5 protection for Defendants’ denial of his Hepatitis C treatment based on his status as a pretrial 6 inmate, while providing that treatment to other inmates who were already sentenced. Dkt. #14. 7 Plaintiff also alleges violations of his Fifth Amendment right to due process for Defendants’ failure 8 to properly address his medical needs as a pre-trial inmate. Lastly, Plaintiff claims violations of 9 his Eighth Amendment rights based on Defendants’ deliberate indifference to his medical needs. 10 On December 21, 2020, Defendants moved to dismiss Plaintiff’s claims. Dkt. #30. On 11 March 10, 2021, Judge Peterson issued the R & R recommending that this Court grant Defendants’ 12 motion to dismiss. Dkt. #36. The R & R determined that because Plaintiff was already convicted 13 at the time the asserted claims arose, the Eighth Amendment and not the Fifth Amendment was

14 implicated, thereby dismissing Plaintiff’s Fifth Amendment due process claim. Id. at 9. The 15 R & R further determined that both of Plaintiff’s remaining Bivens claims arose in a new context, 16 and because Plaintiff had other remedies available to him, Bivens was not properly extended to his 17 claims. Id. at 14. Lastly, the R & R concluded that even if Plaintiff could have brought a Bivens 18 claim under the Eighth Amendment, he had failed to state a cognizable claim for relief on the basis 19 that Plaintiff alleged no facts from which the Court could reasonably infer that Defendants violated 20 his Eighth Amendment rights. Id. at 14-16. 21 // 22 //

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 III. DISCUSSION 2 A. Legal Standard 3 A district court has jurisdiction to review a Magistrate Judge’s report and recommendation 4 on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any

5 part of the magistrate judge’s disposition that has been properly objected to.” Id. “A judge of the 6 court may accept, reject, or modify, in whole or in part, the findings or recommendations made 7 by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of 8 the report and recommendation to which specific written objection is made. United States v. 9 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 10 B. Plaintiff’s Objections 11 Plaintiff objects to the R & R on six bases: (1) his Eighth Amendment claim did not arise 12 in a new Bivens context; (2) he alleged sufficient facts for the Court to reasonably infer that 13 Defendants violated his Eighth Amendment rights; (3) the R & R impermissibly narrowed his

14 complaint; (4) Defendants’ reliance on the BOP policy was sufficient to establish deliberate 15 indifference; (5) Plaintiff need not show he suffered substantial harm as a result of delay; and (6) 16 regardless of whether Plaintiff received treatment, he should still receive damages for his pain 17 and suffering. Because the R & R correctly determined that Plaintiff cannot bring his Eighth 18 Amendment claim under Bivens, the Court need not reach Plaintiff’s remaining objections. 19 1. New Bivens Context 20 First, Plaintiff argues that Judge Peterson erred in concluding that his Eighth Amendment 21 deliberate indifference claim under Bivens arose in a new context. See Dkt. #40 at 2-3. For the 22 reasons set forth below, the Court finds no error in the R & R’s conclusion.

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 In Bivens, the U.S. Supreme Court held that even absent statutory authorization, it would 2 enforce a damages remedy to compensate persons injured by federal officers who violated the 3 prohibition against unreasonable search and seizures. Bivens, 403 U.S. at 397. The Court 4 acknowledged that the Fourth Amendment does not provide for money damages “in so many

5 words.” Id. at 396. However, it noted that Congress had not foreclosed a damages remedy in 6 “explicit” terms and that no “special factors” suggested that the Judiciary should “hesitat[e]” in 7 the face of congressional silence. Id. at 396–97, 91 S.Ct. 1999. The Court held that it could 8 authorize a remedy under general principles of federal jurisdiction. See id. at 392 (citing Bell v. 9 Hood, 327 U.S. 678, 684 (1946)). Since then, the Court has made clear that expanding the Bivens 10 remedy is now a “disfavored” judicial activity, in recognition that it has “consistently refused to 11 extend Bivens to any new context or new category of defendants.” Correctional Services Corp. 12 v. Malesko, 534 U. S. 61, 68 (2001). In Ziglar v. Abbasi, the Supreme Court set forth the test for 13 determining whether a case presents a new Bivens context:

14 If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive 15 list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way 16 because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to 17 how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of 18 disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. 19 137 S.Ct. 1843, 1859–60 (2017). In determining whether a Bivens remedy should be recognized 20 in that case, the Court in Abbassi compared the respondents’ claims to already recognized Bivens 21 22

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 claims and noted that a new context arises in cases where “even a modest extension” exists. Id. 2 at 1864. 3 In applying the test set forth in Abbassi, Judge Peterson determined that the closest case 4 to Plaintiff’s claims was Carlson v. Green, wherein the U.S. Supreme Court extended Bivens to

5 provide a remedy against federal officials responsible for deliberate indifference to a plaintiff’s 6 chronic asthmatic condition. See 446 U.S. 14, 16 n.1 (1980). The R & R distinguished the facts 7 at issue here from those in Carlson, where “a significant failure of the medical delivery 8 system . . . . ultimately resulted in the prisoner’s death . . . .” Dkt. #36 at 12. Here, in contrast, 9 Plaintiff’s allegations address the BOP’s “application of a policy which Plaintiff believes was 10 inequitable and/or discriminatory and prevented him from receiving the immediate medical 11 treatment he desired.” Id. Consequently, the R & R concluded that the deprivation alleged in 12 Carlson was “demonstrably different” than the deprivation alleged here. Id. 13 While Plaintiff argues that “the mechanism of the injury” was the same in Carlson with

14 respect to officials’ failure to provide medical treatment, Dkt. #40 at 2, the Court disagrees. Here, 15 Plaintiff challenges officials’ application of BOP’s former policy that denied administration of 16 Hepatitis C treatment to prisoners who had not yet been sentenced and were below a certain APRI 17 score. In Carlson, in contrast, prison officials failed to give the plaintiff proper medication or 18 steroid treatments ordered by the hospital physician, failed to call in any physician to the prison 19 hospital after he suffered an asthmatic attack, impeded plaintiff’s breathing by attempting to use 20 a respirator known to be inoperative and administering a contraindicating drug, which lead to the 21 prisoner’s respiratory arrest, and unsuccessfully attempted to administer an “electric jolt” despite 22 not knowing how to operate the machine. Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978).

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 The culmination of these events was prison staff moving plaintiff to an outside hospital, where 2 he was pronounced dead on arrival. Id. Given these key factual distinctions, the Court finds that 3 this case differs in a “meaningful way” from the claims at issue in Carlson. For these reasons, 4 the Court finds no error in the R & R’s conclusion that his Eighth Amendment Bivens claim arose

5 in a new context. 6 Plaintiff also argues that the Court has “extended the deliberate indifference standard to 7 Eighth Amendment claims involving medical care” in Wilson v. Seiter, 501 U.S. 294, 303 (1991). 8 Dkt. #40 at 3. However, Wilson did not address a Bivens-type claim and is therefore inapposite. 9 See Wilson, 501 U.S. at 296. 10 2. Extension of Bivens to New Context 11 Having determined that Plaintiff’s claims arose in a new Bivens context, the Court 12 considers whether the R & R erred in concluding that Bivens should not be extended to this new 13 context. Plaintiff has raised no objection to the R & R’s conclusion that extension of Bivens is

14 improper here. See generally Dkt. #40. Under Rodriguez v. Swartz, two conditions must be 15 satisfied for a court to extend Bivens to a new context: (1) “the plaintiff must not have any other 16 adequate alternative remedy;” and (2) “there cannot be any ‘special factors’ that lead [the court] 17 to believe that Congress, instead of the courts, should be the one to authorize a suit for money 18 damages.” 899 F.3d 719, 738 (9th Cir. 2018), vacated on other grounds by Swartz v. Rodriguez, 19 140 S. Ct. 1258 (2020)). 20 Here, the R & R correctly concluded that Bivens should not be extended to this new 21 context based on the alternative remedies available to Plaintiff. Dkt. #36 at 13 (“[I]t is clear that 22 Plaintiff, at the very least, had remedies available to him under the BOP’s administrative remedy

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 program which he did, in fact, utilize in an effort to resolve his claims.”). Furthermore, because 2 Plaintiff was challenging a BOP policy, he could have brought claims for injunctive relief outside 3 of Bivens. Id. (citing Malesko, 534 U.S. at 74 (“Unlike the Bivens remedy, which we have never 4 considered a proper vehicle for altering an entity’s policy, injunctive relief has long been

5 recognized as the proper means for entities acting unconstitutionally.”)). 6 On this basis alone, the R & R correctly determined that Plaintiff’s Fifth Amendment 7 equal protection claim and Eighth Amendment deliberate indifference claim should be dismissed 8 with prejudice. 9 Plaintiff’s remaining objections address the R & R’s alternative conclusion that, even if 10 his Bivens claim did not arise in a new context, he failed to state a claim under the Eighth 11 Amendment for deliberate indifference. See Dkt. #40 at 3-12. Because this Court has already 12 determined that Plaintiff cannot bring his Eighth Amendment deliberate indifferent claim under 13 Bivens, it need not address Plaintiff’s objections as to whether he sufficiently stated a claim for

14 relief. 15 IV. CONCLUSION 16 Accordingly, having reviewed Plaintiff’s civil rights complaint, the Report and 17 Recommendation of Judge Peterson, and the remainder of the record, the Court hereby finds and 18 ORDERS: 19 1) The Report and Recommendation, Dkt. #36, is APPROVED and ADOPTED. 20 2) Defendants’ motion to dismiss, Dkt. #30, is GRANTED. 21 3) Plaintiff’s amended complaint and this action are DISMISSED with prejudice. 22

23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1 4) The Clerk shall send a copy of this Order to Plaintiff, to counsel for Defendants, 2 and to the Honorable Michelle L. Peterson. 3 4 DATED this 1st day of July, 2021.

5 6 A 7 RICARDO S. MARTINEZ 8 CHIEF UNITED STATES DISTRICT JUDGE

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23 ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION