Brown v. Rees

rite

JUN 11 2020

IN THE UNITED STATES DISTRICT COURT Clark, U.S. District Cou

FOR THE DISTRICT OF MONTANA Dis

HELENA DIVISION

ANTHEL BROWN,

CV 18-93-H-DLC-JTJ

Plaintiff,

vs. ORDER

PAUL REES, M.D.,

Defendant.

Anthel Brown sued Paul Rees, M.D., pursuant to 28 U.S.C. § 1983, alleging

that Rees violated his Eighth Amendment right by failing to provide effective

medical treatment. (Doc. 1 3-5.) Rees moved for summary judgment,

arguing that the undisputed facts demonstrate, inter alia, that his response to

Brown’s medical need was not “deliberately indifferent.” (Docs. 40; 42 at 9.)

Rather, Rees contended, the facts show that Brown simply disagreed with Rees’

prescribing decisions—a disagreement that fails to constitute an Eighth

Amendment violation. (Doc. 42 at 13.)

Now before the Court is the Findings and Recommendations of United

States Magistrate Judge John Johnston. (Doc. 51.) Agreeing with Rees that an

absence of evidence exists to support the “deliberate indifference” required to

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support Brown’s constitutional claim, Judge Johnston recommends granting Rees’

motion for summary judgment and dismissing this matter. (/d.) Brown timely

objected to the Findings and Recommendations (Doc. 52), and Rees filed a

response brief (Doc. 53).

Brown is entitled to de novo review of those findings to which he

specifically objects. 28 U.S.C. § 636(b)(1)(C). Absent objection, the Court

reviews findings and recommendations for clear error. United States v. Reyna-

Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Thomas v. Arn, 474 U.S.

140, 149 (1985), Clear error is “significantly deferential” and exists if the Court is

left with a “definite and firm conviction that a mistake has been committed.”

United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).

DISCUSSION

The Court will not reiterate the factual background here. Judge Johnston

thoroughly summarized the relevant facts in his Findings and Recommendations

by relying primarily on Rees’ Statement of Undisputed Facts. (See Doc. 51 at 4—

24; see also Doc, 40.) Brown failed to file a responsive Statement of Disputed

Facts, as required by the Local Rules. Nevertheless, Judge Johnston

acknowledged in his factual summary the points at which Rees’ Statement of

Undisputed Facts diverged from the version of events represented in Brown’s

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brief. (See, e.g., Doc. 51 at 6 (noting Brown’s contention that Rees

mischaracterizes the extent of Brown’s self-reported drug use); Doc. 51 at 7

(stating that Brown argues that no urinalysis would support an inference of his in-

custody drug use); Doc. 51 at 13 n.2 (highlighting Brown’s position that his

purported drug activity is unsupported).) For his part, Brown lodges no objection

to Judge Johnston’s review of the facts, and, for the Court’s part, it finds no error.

Instead, Brown first objects to Judge Johnston’s Findings and

Recommendations by accusing the Magistrate Judge of bias for allowing Rees to

engage in character assassination and Health Insurance Portability and

Accountability Act (“HIPPA”) violations. (Doc. 52 at 1-2.) However, judicial

bias is evidenced neither by Brown’s newfound HIPPA violation allegation nor

Rees’ purported lies about Brown’s in-custody drug use. See Greenway v.

Schiriro, 653 F.3d 790, 806 (9th Cir. 2011) (explaining that a showing of judicial

bias requires facts sufficient to create actual impropriety or an appearance of

impropriety). In other words, while Brown bridles at Rees’ factual account and

argument, he advances no facts sufficient to show actual or apparent impropriety

on the part of Judge Johnston in his review of the case. Considering this

objection de novo, the Court finds no evidence of judicial bias.

Next, Brown argues that “volumes of evidence and statements” by other

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doctors raise a material factual dispute that precludes summary judgment. (Doc.

52 at 3.) Brown fails to point the Court to any portion of the Findings and

Recommendations where Judge Johnston ignored the accounts of other doctors,

nor does he contend that another portion of the record contains such materials.

(id.) Furthermore, even if Brown did point to a specific doctor who would

approach his treatment differently than Rees did, “[a] difference of opinion does

not amount to a deliberate indifference to [his] serious medical needs.” Sanchez

v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Reviewing de novo, the Court finds no

error in Judge Johnston’s accounting of the opinions of the various medical

providers involved in Brown’s treatment, nor in his legal conclusions.

Brown goes on to misallocate the respective burdens the parties bear at the

summary judgment phase before spring-boarding into an objection that Judge

Johnston improperly chose Rees’ version of events over his. (Doc. 52 at3.) He

focuses here, apparently, on Rees’ averment in his sworn affidavit that Brown

reported to Rees that he, Brown, “had a history of heroin use, which amplified

[Rees’] concerns regarding the long-term continuation of his medication regimen.”

(Doc. 41-5 at 5.) However, while Judge Johnston indeed referenced Rees’

understanding—accurate or not—of Brown’s self-reported drug use in his

summary of the facts, his ultimate analysis on the issue of deliberate indifference

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was not reliant on that fact. That is, Judge Johnston looked to Rees’ testimony

explaining his rationale for changing Brown’s medication, which was not based on

Brown’s alleged prior drug use, but on Rees’ opinion that consistent use of opioid

medication for chronic non-malignant pain is ineffective and harmful to patients.

(Doc. 51 at 28.) In response, Brown presented no evidence to show that Rees’

alternative course of treatment was medically unacceptable under the

circumstances and chosen in conscious disregard of risks to his health. See

Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

Therefore, the Court disagrees that the “proof evolve[d] to one defendants

(sic) word over the dependability of his lawful accuser.” (Doc. 52 at 4.)

Instead, after Rees attested to his rationale for changing the course of Brown’s

treatment, the burden shifted to Brown to establish the existence of a genuine issue

of material fact—a burden he did not bear. Reviewing this objection de novo, the

Court finds no error.

Brown’s next objection regarding qualified immunity is inapposite. Rees

argued that qualified immunity applies as as an alternate route to summary

judgment in his favor. (Doc. 42 at 21-24.) However, because he determined as

a threshold matter that Brown failed to maintain a viable Eighth Amendment

claim, Judge Johnston never reached the question of qualified immunity, and

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neither will this Court.

Brown goes on to assert that Rees plays “fast and loose with the facts” about

a 2017 steroid injection that, according to Rees, improved Brown’s pain. (Docs.

52 at 5; 41-5 at9.) Brown offers no explanation or supporting documentation as

to why Rees’ testimony on this point amounts to fast and loose play, but instead

provides a non sequitur that he would never tell Rees that he was “some kind of

{hJeroin drug lord.” (Doc, 52 at5.) Reviewing de novo, the Court finds nothing

in this objection raises a factual dispute that would undermine Judge Johnston’s

legal analysis.

Likewise, the Brown’s speculation that various forms are missing from his

medical records fails to convince the Court that Judge Johnston’s legal analysis—

that no factual dispute exist as to the necessary “deliberate indifference” element—

iserroneous. (/d.) Similarly, Brown’s unsupported disagreement with Rees’

approach to “drug holidays” fails to raise a genuine factual dispute to preclude

summary judgment. (/d at 6.)

In sum, after reviewing the Findings and Recommendations de novo where

Brown specifically objects and for clear error where he does not, the Court finds no

error in Judge Johnston’s factual findings or legal analysis.

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Accordingly, IT IS ORDERED that Judge Johnston’s Findings and

Recommendations (Doc. 51) is ADOPTED IN FULL. IT IS FURTHER

ORDERED that the Clerk shall enter judgment in favor of Defendant Rees and

against Plaintiff Brown and close this case. Finally, IT IS ORDERED that the

Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate

Procedure that any appeal of this decision would not be taken in good faith.

DATED this aay of June, 2020,

United States District Court

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