# Silva v. Sanders

> District Court, W.D. Washington · July 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10706519

## Case

- **Court:** District Court, W.D. Washington
- **Decided:** July 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
6 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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RAMON SAUL SILVA, JR., CASE NO. 2:21-cv-00472-JHC
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Plaintiff, ORDER RE: REPORT AND
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RECOMMENDATION
v.
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BENJAMIN SANDERS,
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Defendant.
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14 I.
15 INTRODUCTION
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.
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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
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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.

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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.
1 III.
2 ANALYSIS
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)).
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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).
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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
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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
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ORDER RE: REPORT AND

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10706519. Public record. Not legal advice.