# Reed v. Kariko

> District Court, W.D. Washington · July 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10706619

## Case

- **Court:** District Court, W.D. Washington
- **Decided:** July 22, 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 TACOMA
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CHARLES VINCENT REED, CASE NO. C20-5580 BHS
8
Plaintiff, ORDER
9 v.
10 SARAH KARIKO, et al.,
11 Defendants.
12

13 THIS MATTER is before the Court on Magistrate Judge Christel’s Report and
14 Recommendation, Dkt. 48, recommending that the Court grant Defendants’ Motion for
15 Summary Judgment, Dkt. 37, and dismiss this case with prejudice. Pro se Plaintiff
16 Charles Reed has filed two sets of objections, Dkts. 52 and 61.
17 Reed is an inmate at Stafford Creek Correctional Center. Among numerous other
18 medical conditions, Reed has Hepatitis C. Reed previously sued the Stafford Creek
19 medical staff and others in 2016, in a case the parties refer to as “Reed 1.” See Reed v.
20 Hammond, et al., No. 16-cv-5993 BHS. Reed 1 largely involves Reed’s claim that the
21 prison staff violated his constitutional rights through deliberate indifference to his
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1 Hepatitis C. This Court appointed counsel for Reed in Reed 1, and the parties continue to
2 litigate that matter vigorously.
3 Reed is pro se in this second case, Reed 2. He asserts similar federal constitutional

4 and state law medical negligence claims based on the medical treatment he obtained for
5 other medical conditions. See generally Dkt. 5 (Complaint). His complaint and his
6 subsequent filings also reference his Hepatitis C and the treatment he has received for
7 that condition. Reed’s current objections to the Magistrate Judge’s R&R assert that this
8 case is “directly linked” to Reed 1 in “seeking damages and prospective injunctive relief

9 relative to the same material facts.” Dkt. 61 at 1. Indeed, Reed’s objections appear to be
10 modeled after the objections successfully asserted in response to an R&R in Reed 1. See
11 Reed 1, 16-cv-5993 BHS, Dkt. 188 (W.D. Wash. June 4, 2021).
12 But as a practical and legal matter, this case cannot be the same as Reed 1; if it
13 were, it would be dismissed as duplicative and precluded by the prior case. One may

14 generally not simultaneously maintain two actions against the same defendants for the
15 same conduct. Instead, as Defendants’ motion asserts, Reed is necessarily asserting
16 different deliberate indifference claims based on different circumstances in overlapping
17 but not identical time frames: the failure to diagnose and treat conditions such as
18 esophagitis, a torn right ACL, degenerative changes in his left knee, and rashes; as well

19 as claims based on the discontinuation of treatment, inadequate record keeping, and
20 retaliation. Dkt. 37 at 4; see also Dkt. 5.
21 Judge Christel’s thorough R&R details the claims and Defendants’ arguments in
22 support of the summary judgment motion. Dkt. 48. It recommends effectively granting
1 Defendants’ motion to strike, Dkt. 46, Reed’s supplemental declaration, Dkt. 45, because
2 it includes information and expert opinions that are not based on Reed’s personal
3 knowledge. Dkt. 48 at 10 (stating the Court “will not consider the impermissible

4 portions” of Reed’s Declaration in considering Defendants’ motion).
5 The R&R concludes that all of Reed’s § 1983 Eighth Amendment deliberate
6 indifference claims are subject to summary dismissal for lack of evidence. Id. at 12–36.
7 Similarly, it concludes that Reed’s retaliation claim should be dismissed because no
8 reasonable juror could conclude Defendants retaliated against Reed. Id. at 36–39. The

9 R&R does not address Defendants’ additional argument that, even if their conduct was
10 constitutionally deficient, the violations were not clearly established, and they are entitled
11 to qualified immunity. See Dkt. 37 at 12–13. It recommends dismissing Reed’s state law
12 claims without prejudice under 28 U.S.C. § 1367(c), because the parties did not
13 adequately address those claims in their filings. Dkt. 48 at 40.

14 Other than repeating the arguments and claims in Reed 1, and the arguments he
15 asserted in response to Defendants’ summary judgment motion in this case, Reed’s
16 objections to the R&R in this case primarily assert that the R&R erroneously refused to
17 consider his Declaration. Dkt. 61 at 2–4.
18 A district judge must determine de novo any part of the magistrate judge’s

19 disposition to which a party has properly objected. The district judge may accept, reject,
20 or modify the recommended disposition; receive further evidence; or return the matter to
21 the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). A proper objection
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1 requires specific written objections to the findings and recommendations in the R&R.
2 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
3 Nevertheless, objections to a Magistrate’s Report and Recommendation are not an

4 appropriate vehicle to rehash or re-litigate the points considered and resolved by the
5 Magistrate Judge. See, e.g., El Papel LLC v. Inslee, No. 20-cv-01323 RAJ-JRC, 2021 WL
6 71678, at *2 (W.D. Wash. Jan. 8, 2021) (“Because the Court finds that nearly all
7 objections are merely a rehash of arguments already raised and decided upon by the
8 Magistrate Judge, the Court will not address each objection here.”); Aslanyan v. Herzog,

9 No. 14-cv-0511 JLR, 2014 WL 7272437, at *1 (W.D. Wash. Dec. 17, 2014) (rejecting a
10 challenge to a Magistrate’s Report and Recommendations when “all of [plaintiff’s]
11 objections simply rehash arguments contained in his amended opening memorandum or
12 in his reply memorandum”). As Courts in other Districts have recognized and explained,
13 such re-litigation is not an efficient use of judicial resources.

14 There is no benefit to the judiciary “if the district court[] is required to review the
15 entire matter de novo because the objecting party merely repeats the arguments rejected
16 by the magistrate. In such situations, this Court follows other courts that have overruled
17 the objections without analysis." Hagberg v. Astrue, No. CV-09-01-BLG-RFC-CSO,
18 2009 WL 3386595, at *1 (D. Mont. Oct. 14, 2009). In short, an objection to a

19 magistrate’s findings and recommendations “is not a vehicle for the losing party to
20 relitigate its case.” Id; see also Conner v. Kirkegard, No. CV 15-81-H-DLC-JTJ, 2018
21 WL 830142, at *1 (D. Mont. Feb. 12, 2018); see also Fix v. Hartford Life & Accident Ins.
22 Co., CV 16-41-M-DLC-JCL, 2017 WL 2721168, at *1 (D. Mont. June 23, 2017)
1 (collecting cases); Eagleman v. Shinn, No. CV-18-2708-PHX-RM (DTF), 2019 WL
2 7019414, at *4 (D. Ariz. Dec. 20, 2019) (“[O]bjections that merely repeat or rehash
3 claims asserted in the Petition, which the magistrate judge has already addressed in the

4 R&R, are not sufficient under Fed. R. Civ. P. 72.”).
5 The Court agrees that Reed’s Supplemental Declaration, Dkt. 45, is largely
6 inadmissible, because it is not based on Reed’s personal knowledge and it improperly
7 includes expert opinions, legal conclusions, and other impermissible allegations. The
8 R&R’s approach of not relying on the inadmissible material in considering the

9 Defendants’ motion is ADOPTED.
10 Second, Reed’s objections are mostly an effort to simply re-litigate the issues
11 addressed in the R&R. Reed has not provided evidence from which a reasonable jury
12 could find that any of the defendants personally participated in any constitutional
13 deprivation, and he has not established that there was a constitutional violation on any of

14 the numerous non-Hepatitis C medical issues upon which his claims are based. The
15 R&R’s recommendation that the Court grant the Defendants’ summary judgment motion
16 is therefore ADOPTED.
17 Furthermore, and in any event, the Court agrees with Defendants that they are
18 entitled to qualified immunity on all of Reed’s § 1983 claims against them.

19 Under the qualified immunity doctrine, “government officials performing
20 discretionary functions generally are shielded from liability for civil damages insofar as
21 their conduct does not violate clearly established statutory or constitutional rights of
22 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
1 (1982). The purpose of the doctrine is to “protect officers from the sometimes ‘hazy
2 border between excessive and acceptable force.’” Brosseau v. Haugen, 543 U.S. 194, 198
3 (2004) (parenthetically quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). A two-part

4 test resolves claims of qualified immunity by determining whether plaintiffs have alleged
5 facts that “make out a violation of a constitutional right,” and if so, whether the “right at
6 issue was clearly established at the time of defendant’s alleged misconduct.” Pearson v.
7 Callahan, 555 U.S. 223, 232 (2009) (internal citations and quotations omitted).
8 Qualified immunity protects officials “who act in ways they reasonably believe to

9 be lawful.” Garcia v. Cnty. of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011) (quoting
10 Anderson v. Creighton, 483 U.S. 635, 641 (1987)). The reasonableness inquiry is
11 objective, evaluating “whether the officers’ actions are ‘objectively reasonable’ in light of
12 the facts and circumstances confronting them, without regard to their underlying intent or
13 motivation.” Huff v. City of Burbank, 632 F.3d 539, 549 (9th Cir. 2011) (quoting Graham

14 v. Connor, 490 U.S. 386, 397 (1989)). Even if the officer’s decision is constitutionally
15 deficient, qualified immunity shields her from suit if her misapprehension about the law
16 applicable to the circumstances was objectively reasonable. See Brosseau v. Haugen, 543
17 U.S. 194, 198 (2004). Qualified immunity “gives ample room for mistaken judgments”
18 and protects “all but the plainly incompetent.” Hunter v. Bryant, 502 U.S. 224, 229

19 (1991) (internal quotations omitted).
20 Defendants’ motion asserts that they are entitled to qualified immunity. Dkt. 37 at
21 12–13. The R&R did not address the issue. But Defendants correctly assert that once the
22 issue is raised, Reed has the burden of demonstrating that he suffered a constitutional
1 injury and that a reasonable official in the defendant’s position would have known that
2 their conduct violated Reed’s constitutional rights. Reed did not address the second prong
3 of this qualified immunity defense in his underlying response, Dkt. 41, or in his

4 objections to the R&R, Dkt. 61. The Court agrees that each defendant is entitled to
5 qualified immunity, and Reed has failed to identify any factual issue that must be
6 resolved before the qualified immunity issue can be determined. This is an additional
7 basis for granting Defendants’ summary judgment motion on Reed’s § 1983 claims
8 against them.

9 Finally, for a similar reason, the Court DECLINES to adopt the R&R’s
10 recommendation that the Court dismiss without prejudice Reed’s state law medical
11 negligence claims. Reed correctly argues that discovery is complete, and that it would be
12 unfair to the parties and to the state court to force them to start over again in a new
13 jurisdiction. See Dkt. 61 at 33.

14 Nor can the Court agree that the parties’ failure to fully address the viability of
15 those claims requires the court to effectively deny the motion. A defendant’s summary
16 judgment motion puts the plaintiff to his burden of proof by pointing out a lack of
17 evidence to support the plaintiff’s claim. The plaintiff is then obligated to provide
18 evidence and otherwise establish that, viewed in the light most favorable to him, that

19 evidence would permit a jury to find in his favor.
20 Expert medical testimony is generally required to establish the standard of care
21 and to prove causation in a medical negligence action. Guile v. Ballard Cmty. Hosp., 70
22 Wn. App. 18, 25 (1993) (citing Harris v. Groth, 99 Wn.2d 438, 449 (1983)). Therefore,
1 to defeat summary judgment in most medical negligence cases, the plaintiff must produce
2 competent medical expert testimony establishing that the injury complained of was
3 proximately caused by a failure to comply with the applicable standard of care. Seybold v.

4 Neu, 105 Wn. App. 666, 676 (2001). “If the plaintiff in a medical negligence suit lacks
5 competent expert testimony, the defendant is entitled to summary judgment.” Colwell v.
6 Holy Family Hosp., 104 Wn. App. 606, 611 (2001), abrogated on other grounds by
7 Frausto v. Yakima HMA, LLC, 188 Wn.2d 227 (2017).
8 Defendants argued and demonstrated that there was no evidence supporting his

9 claim that his doctors were negligent and that they proximately caused him injury. Dkt.
10 37 at 13–15. Reed failed to meet his burden1 in response. As a result, Defendants’
11 summary judgment motion should be granted. For the reasons outlined in the underlying
12 motion, Defendants’ motion for summary judgment on Reed’s state law medical
13 negligence claims is GRANTED and those claims are dismissed with prejudice.

14 The R&R is ADOPTED in part. Defendants’ Motion for Summary Judgment on
15 Reed’s § 1983 claims, Dkt. 37, is GRANTED, for the reasons in the R&R and because
16 the Defendants are entitled to qualified immunity. The Court DECLINES the R&R’s
17 recommended dismissal of Reed’s state law claims, and Defendants’ summary judgment
18 motion on those claims, Dkt. 37, is also GRANTED. Reed’s claims in this case are

19 DISMISSED with prejudice.
20 The Clerk shall enter a JUDGMENT and close the case.
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1 Reed does reference Dr. Gish’s expert opinions in Reed 1, but those opinions do not
22 address the medical negligence claims in this second case.
1 IT IS SO ORDERED.
2 Dated this 22nd day of July, 2022.
A
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BENJAMIN H. SETTLE
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United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10706619. Public record. Not legal advice.