Metcalf v. Key

1

2 U.S. F DIL ISE TD R I IN C TT H CE O URT

EASTERN DISTRICT OF WASHINGTON

3 Dec 09, 2019

4

SEAN F. MCAVOY, CLERK

5

6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF WASHINGTON

8

9 JAMES CARL METCALF,

10 Plaintiff, NO. 4:18-cv-00302-SAB

11 v.

12 JAMES KEY, Superintendent AHCC, ORDER RE: CROSS MOTIONS

13 PATRICK PETERSON, Medical Provider FOR SUMMARY JUDGMENT

14 – P.A., and DON MCINTYRE, Health

15 Service Manager,

16 Defendants.

17

18 Before the Court are Plaintiff’s Motion of Summary Judgment, ECF No. 30,

19 and Defendants’ Motion for Summary Judgment, ECF No. 31. The motions were

20 considered without oral arguments. Plaintiff is proceeding pro se and Defendants

21 are represented by Michelle Hansen from the Washington State Attorney General’s

22 Office. Plaintiff alleges that Defendants violated his Eighth Amendment right to be

23 free from cruel and unusual punishment by denying him access to medical care for

24 chronic back pain. Having considered the motions, the responses and replies, and

25 the relevant case law, the Court denies Plaintiff’s Motion for Summary Judgment

26 and grants Defendant’s Motion for Summary Judgment.

27 //

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1 Material Facts Not in Dispute

2 Plaintiff is currently incarcerated at Airway Heights Correctional Center

3 (AHCC). During his time at AHCC, Plaintiff has been seen repeatedly by prison

4 medical officials for chronic low back pain related to an injury he suffered as a

5 teenager prior to his incarceration. ECF No. 9 at 7; ECF No. 39 at ¶ 8. On October

6 15, 2017, Plaintiff alleges that he woke up with extreme back pain and signed up

7 for an urgent care appointment for October 19th. ECF No. 9 at 5. Defendant

8 Peterson—a physician’s assistant with the AHCC urgent care clinic—was on call

9 on October 19, 2017; he walked Plaintiff from the waiting room back to the

10 examination room, observing Plaintiff’s gait to assess for any problems. ECF No. 9

11 at 5; ECF No. 39 at ¶ 8. In addition, Defendant Peterson reviewed his medical

12 records from previous encounters with Plaintiff. ECF No. 39 at ¶ 8. Defendant

13 Peterson concluded that Plaintiff’s condition was not so severe that he required an

14 urgent care visit, as Plaintiff’s pain was considered a chronic condition. Id.

15 Defendant Peterson then told Plaintiff that he could not circumvent his primary

16 care physician by making an urgent care appointment and instructed him to

17 schedule an appointment with his primary care provider to follow up on his chronic

18 pain. Id. Defendant Peterson then escorted Mr. Metcalf back to the waiting room

19 and ended the appointment. Id. Later this same day, Plaintiff was examined by

20 Tracy Porter, RN, who noted that Plaintiff reported chronic low back pain, but was

21 not in a state of medical emergency. ECF No. 31 at 4. On October 21, Plaintiff was

22 also seen by Chenelle Patrick, RN, who also noted that Plaintiff reported chronic

23 low back pain but was not in a state of medical emergency. ECF No. 38.

24 Shortly after his appointment with Defendant Peterson, Plaintiff sent a kite

25 declaring a medical emergency; Defendant Peterson cancelled the kite on grounds

26 that Plaintiff had already been seen that day. ECF No. 39 at ¶ 9. Plaintiff also filed

27 an emergency medical grievance complaint, wherein he asserted that he wanted

28 “medical to do their job.” ECF No. 9 at 5; ECF No. 39 at ¶ 10. AHCC Custody

1 Unit Supervisor Paul Duenich reviewed the complaint and, after consultation with

2 Defendant Peterson, determined that it did not meet the criteria for an emergent

3 medical complaint and directed the complaint to proceed through normal channels.

4 ECF No. 34 at ¶ 3; ECF No. 46 at ¶ 2. Defendant McIntyre—Health Services

5 Manager 2 at AHCC—reviewed the denial of Plaintiff’s initial grievance and

6 concluded that the grievance was baseless. ECF No. 35. Defendants Key—

7 Superintendent of AHCC—reviewed the emergency grievance and appeals of the

8 initial grievance and concluded that the complaint was not emergent in nature. ECF

9 No. 34. Following these grievances, Plaintiff did not seek medical attention again

10 until November 27, 2017, when he saw his primary care provider Ruth Oman, RN.

11 ECF No. 46 at ¶ 3.

12 Summary Judgment Standard

13 Summary judgment is appropriate “if the movant shows that there is no

14 genuine dispute as to any material fact and the movant is entitled to judgment as a

15 matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of

16 showing the absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett,

17 477 U.S. 317, 325 (1986). An issue of material fact is genuine if there is sufficient

18 evidence of a reasonable jury to return a verdict for the non-moving party. Thomas

19 v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). The non-moving party cannot rely

20 on conclusory allegations alone to create an issue of material fact. Hansen v.

21 United States, 7 F.3d 137, 138 (9th Cir. 1993). If the moving party meets its initial

22 burden, the non-moving party must then go beyond the pleadings and “set forth

23 specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty

24 Lobby, Inc., 477 U.S. 242, 248 (1986). The parties must support assertions by

25 citing to particular parts of the record or show that the materials cited do not

26 establish the absence or presence of a genuine dispute of material fact. Fed. R. Civ.

27 P. 56(c). However, a court may neither weigh the evidence nor assess credibility;

28 instead, “the evidence of the non-movant is to be believed, and all justifiable

1 inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255; see also

2 Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015).

3 In addition to showing there are no questions of material fact, the moving

4 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of

5 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled

6 to judgment as a matter of law when the non-moving party fails to make a

7 sufficient showing on an essential element of a claim on which the non-moving

8 party has the burden of proof. Celotex, 477 U.S. at 323.

9 When considering a motion for summary judgment, a court may neither

10 weigh the evidence nor assess credibility; instead, “the evidence of the non-movant

11 is to be believed, and all justifiable inferences are to be drawn in his favor.”

12 Anderson, 477 U.S. at 255. When parties file simultaneous cross-motions for

13 summary judgment, the court reviews each motion and the appropriate evidentiary

14 material identified in support of the motion separately, giving the nonmoving party

15 for each motion the benefit of all reasonable inferences. Brunozzi v. Cable

16 Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017).

17 Eighth Amendment Standard

18 The Eighth Amendment guarantees that an incarcerated person be free from

19 cruel and unusual punishment during their term of confinement. This protection

20 extends to guarantee prisoners’ right to adequate medical treatment while

21 incarcerated. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). This right is violated

22 when a prison official acts with deliberate indifference to the serious medical needs

23 of a prisoner. Id. A prisoner has a serious medical need if he has “an injury that a

24 reasonable doctor or patient would find important and worthy of comment or

25 treatment; the presence of a medical condition that significantly affects an

26 individual’s daily activities; or the existence of chronic and substantial pain.”

27 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other

28 grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

1 In order to state an Eighth Amendment claim under 42 U.S.C. § 1983, a

2 prisoner must satisfy a two-part test. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

3 Cir. 2004). First, the prisoner must demonstrate that the prison official objectively

4 deprived him of the “minimal civilized measure of life necessities.” Id. This

5 element is satisfied if the prisoner shows the risk posed by the deprivation is

6 obvious. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). Second, the

7 prisoner must show that the prisoner official acted with deliberate indifference in

8 depriving the prisoner of medical attention. Id. A prison official acts with

9 deliberate indifference if the official knows of and disregards an excessive risk to

10 inmate health and safety. Id. A defendant must purposefully ignore or fail to

11 respond to a prisoner’s pain or possible medical need in order to establish

12 deliberate indifference. McGuckin, 974 F.2d at 1060. In addition, the inmate must

13 show that the prison official had no reasonable justification for their actions in light

14 of the risk posed to the inmate. Thomas, 611 F.3d at 1150; Jett v. Penner, 439 F.3d

15 1091, 1096 (9th Cir. 2006) (finding deliberate indifference where a prison doctor

16 failed to ensure that plaintiff prisoner received necessary orthopedic care for a

17 broken thumb, causing the fracture to not heal properly).

18 Regardless of the basis for an Eighth Amendment claim, “vague and

19 conclusory allegations of official participation in civil rights violates are not

20 sufficient to withstand” a motion for summary judgment for failure to state a

21 cognizable claim. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th

22 Cir. 1982); see, e.g., Evans v. Skolnik, 673 F. App’x 285, 288 (9th Cir. 2015)

23 (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)) (“an allegation that a

24 prison official inappropriately denied or failed to adequately respond to a

25 grievance, without more, does not state a claim under § 1983.”).

26 Qualified Immunity Standard

27 Qualified immunity protects government officials sued in their individual

28 capacities from liability in § 1983 suits. Plumhoff v. Richard, 572 U.S. 765, 778

1 (2014). Prison officials involved in the day-to-day operations of a prison are

2 entitled to especially generous consideration in the determination of whether

3 qualified immunity applies. Hunter v. Bryant, 502 U.S. 224, 229 (1991) (citing

4 Bell v. Wolfish, 441 U.S. 520, 531 (1979)). In order to defeat a claim of qualified

5 immunity raised by a prison official, a prisoner must show that a constitutional

6 right would have been violated on the facts alleged. Plumhoff, 572 U.S. at 774

7 (citing Saucier v. Katz, 533 U.S. 194, 200 (2001), reversed in part by Pearson v.

8 Callahan, 555 U.S. 223 (2009)). Second, the court must determine whether the

9 right at issue was clearly established at the time of alleged violation. Id.; see also

10 Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). An official has not

11 violated a clearly established right unless the right was sufficiently definite that

12 any reasonable official in the official’s shoes would have understood that he was

13 violating that right. Plumhoff, 572 U.S. at 778-79. Although there does not need to

14 be a case directly on point to meet this standard, precedent must have placed the

15 question beyond debate. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). That being

16 said, the inquiry “must be undertaken in light of the specific context of the case,

17 not as a broad general proposition.” Mullenix v. Luna, --- U.S. ----, 136 S. Ct. 305,

18 308 (2015) (internal citations and quotation marks omitted).

19 Discussion

20 For the reasons discussed below, the Court denies Plaintiff’s Motion for

21 Summary Judgment, ECF No. 30, and grants Defendants’ Motion for Summary

22 Judgment, ECF No. 31. Plaintiff’s motion fails because he fails to demonstrate that

23 he is entitled to judgment as a matter of law on his Eighth Amendment claims.

24 Defendant’s motion succeeds because they showed there was no genuine dispute as

25 to material fact and are entitled to judgment as a matter of law because Plaintiff

26 failed to state a claim under the Eighth Amendment. Defendants’ motion also

27 succeeds because all three Defendants are entitled to qualified immunity.

28 //

1 1. Plaintiff’s Motion for Summary Judgment

2 In his motion, Plaintiff generally alleges that Defendant Peterson violated his

3 Eighth Amendment right to medical care when Peterson did not conduct a physical

4 examination of him during his visit of AHCC’s urgent care clinic on October 19,

5 2017. ECF No. 9 at 5-7. Plaintiff also alleges that his rights were further violated

6 when Defendant Peterson cancelled a medical emergency kite filed by Plaintiff on

7 the grounds that he had already been seen that day and was not having a medical

8 emergency. Id. Finally, Plaintiff alleges that his rights were violated by Defendants

9 Key and McIntyre when they failed to investigate and overturn the denial of his

10 emergency grievances and appeals. Id.

11 In response to Plaintiff’s motion, Defendants present significant evidence in

12 the form of affidavits that Plaintiff did in fact receive medical care for his back

13 pain between October 19 and 21, 2017. See ECF Nos. 34, 35, 36, 37, 38, 39, 40,

14 41, and 42. Indeed, based on this evidence, Plaintiff was seen by different medical

15 professionals during this time, all of whom noted in their visit summaries that

16 Plaintiff had a history of chronic back pain and complained of back pain during

17 these visits, but was not in a state of medical emergency. ECF Nos. 38, 39.

18 Plaintiff does not contest these facts; rather, Plaintiff focuses on the fact that he

19 was not given a physical examination by Defendant Peterson at the initial urgent

20 care appointment on October 19 and that he was not given an emergency medical

21 appointment after he complained about his first appointment.

22 Plaintiff’s complaint seems to be that he was not given a physical

23 examination by Defendant Peterson, and that this failure to be physically examined

24 is what constitutes denial of access to medical care. ECF No. 47 at 4, 6. In

25 addition, with regards to Defendant Peterson’s assertion that he examined

26 Plaintiff’s gait in the walk to his office, Plaintiff disputes the length of the walk

27 and whether Defendant Peterson could have assessed his gait as “normal” given

28 previous injuries that he says give him a limp. Furthermore, Defendant disputes

1 that the condition for which he sought medical treatment on October 15, 19, and 21

2 was “chronic” in nature; however, in all of his interactions with AHCC medical

3 staff, Plaintiff’s medical records and kites describe his lower back pain as chronic.

4 ECF No. 47 at 4, 10. Although Plaintiff disputes some of the facts introduced by

5 Defendants, the facts are not material to the Court’s consideration of the merits of

6 this matter.

7 Having determined that there are no genuine disputes as to material fact, the

8 Court now turns to the question of whether Plaintiff is entitled to judgment as a

9 matter of law. As stated above, in order to succeed on an Eighth Amendment

10 claim, Plaintiff must demonstrate that he was (1) objectively deprived of “civilized

11 life’s necessities” and (2) that this deprivation was done with deliberate

12 indifference to a serious medical need. Thomas, 611 F.3d at 1150.

13 Although Plaintiff’s chronic back pain likely qualifies as a serious medical

14 need for purposes of the Eighth Amendment, see McGuckin, 974 F.2d at 1059-60,

15 Plaintiff fails to show that he was objectively deprived of a life necessity and that

16 Defendants deprived Plaintiff of those necessities with deliberate indifference.

17 Plaintiff asserts that he was wholly deprived of medical care and that his claims are

18 not based on a disagreement with Defendant Peterson about the chosen course of

19 treatment. See ECF No. 47 at 6. However, Plaintiff fails to rebut Defendants’

20 evidence and assertions that he was, in fact, provided medical care on October 19,

21 2017. Plaintiff introduces no evidence that the exams conducted by Defendant

22 Peterson were insufficient beyond baseless assertions that the exams were in fact

23 unacceptable. In addition, Plaintiff fails to dispute that he was given medical care

24 and a physical exam by Registered Nurse Porter on October 19 and by Registered

25 Nurse Patrick on October 21 or that he did not seek further medical care until his

26 appointment with is primary care provider Ruth Oman. ECF No. 46 at ¶ 3.

27 Based on the above, the Court concludes Plaintiff has failed to show that he

28 was objectively deprived of medical care and that Defendants deprived him of

1 medical care and were deliberately indifferent to his chronic back pain.

2 Accordingly, Plaintiff is not entitled to summary judgment in his favor and his

3 Motion, ECF No. 30, is denied.

4 2. Defendant’s Motion for Summary Judgment

5 Defendants argue that they are entitled to summary judgment in their favor

6 for two reasons. First, Defendants argue that they are entitled to summary

7 judgment because Plaintiff has failed to state a claim upon which relief can be

8 granted. Second, Defendants argue that they are entitled to qualified immunity and

9 cannot be held liable for any alleged harms suffered by Plaintiff.

10 Based on the motions and applicable case law, the Court concludes that

11 Defendants are entitled to summary judgment on both grounds. Defendants have

12 demonstrated that there is no genuine dispute as to material fact and that they are

13 entitled to judgment as a matter of law on either of the theories they present in their

14 motions. Accordingly, the Court grants Defendants’ Motion for Summary

15 Judgment, ECF No. 31.

16 Defendants are entitled to judgment as a matter of law because Plaintiff has

17 failed to state an Eighth Amendment claim upon which relief can be granted. As to

18 Defendant Peterson, summary judgment is warranted because Plaintiff has failed to

19 state a claim that Defendant Peterson denied him access to medical care. It is not

20 disputed that Plaintiff had an urgent care appointment with Defendant Peterson on

21 October 19, 2017. The fact that Plaintiff was unsatisfied with the way Defendant

22 Peterson conducted the appointment and his chosen course of treatment is not—

23 without more—evidence that Defendant Peterson violated Plaintiff’s Eighth

24 Amendment right to medical care. Plaintiff is not entitled to “jump the line” to see

25 a medical provider because of a health problem that did not amount to a medical

26 emergency. See, e.g., Peralta v. Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014)

27 (holding that prison officials may be skeptical of prisoner complaints, as prisoners

28 may exaggerate their symptoms in order to accelerate access to care). Absent

1 evidence that the manner in which Defendant Peterson conducted the urgent care

2 appointment with Plaintiff was objectively unreasonable, Plaintiff fails to state a

3 cognizable claim under the Eighth Amendment.

4 Furthermore, Defendant Peterson is entitled to qualified immunity and is

5 therefore not liable to Plaintiff. Plaintiff has failed to show that he had a

6 constitutional right to have a medical appointment conducted in a certain way or

7 that the way his appointment was conducted amounts to a constitutional violation.

8 Plaintiff has also failed to show that a reasonable prison official in Defendant

9 Peterson’s shoes would have known that it would be unconstitutional to conduct a

10 medical appointment in that way. Plaintiff cites only to caselaw that generally

11 establishes the right to medical care in prison but does not and cannot point to

12 caselaw square on this point. See Mullenix, 136 S. Ct. at 308. Accordingly,

13 Defendant Peterson is entitled to qualified immunity.

14 As to Plaintiff’s claims against Defendants McIntyre and Key, Defendants

15 are entitled to summary judgment because these Defendants are entitled to

16 qualified immunity. Plaintiff alleges only that Defendants McIntyre and Key

17 violated his constitutional rights in the way they handled his emergency

18 grievances. A prison officials’ denial of a grievance does not in itself violate the

19 Constitution. Ramirez, 334 F.3d at 860. Defendants’ decision to deny Plaintiff’s

20 grievance and to route it through routine—rather than emergency—review is not a

21 constitutional violation. Accordingly, Defendants are entitled to qualified

22 immunity and summary judgment is granted in their favor.

23 //

24 //

25 //

26 //

27 //

28 //

1 Accordingly, IT IS HEREBY ORDERED:

1. Plaintiffs Motion for Summary Judgment, ECF No. 30, is DENIED.

2. Defendants’ Motion for Summary Judgment, ECF No. 31, is GRANTED

3. The District Court Executive is directed to enter judgment in favor of

Defendants and against Plaintiff.

IT IS SO ORDERED. The District Court clerk is hereby directed to enter

this Order, to provide copies to counsel and to Plaintiff, and to close the file.

DATED this 9th day of December 2019.

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hy than

Stanley A. Bastian

United States District Judge

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