Irby v. Johnson ( 2021 )

1 The Honorable Barbara J. Rothstein 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 TERRANCE JON IRBY, 9 Plaintiff, 10 Civil Action No. 21-5605-BJR-MLP v. 11 ORDER ADOPTING REPORT AND 12 CLIFFORD JOHNSON, et al. RECOMMENDATION AND DISMISSING 13 CASE Defendants. 14 15 16 17 I. INTRODUCTION 18 Currently before the Court is a Report and Recommendation in which the Honorable 19 Magistrate Judge Peterson recommends that this matter be dismissed pursuant to 28 U.S.C. 20 1915A(b)(1) and that Plaintiff’s application to proceed in forma pauperis and his motion for 21 preliminary injunctive relief be denied as moot. Dkt. No. 7. Plaintiff Terrance Jon Irby 22 23 (“Plaintiff”) filed objections to the Report and Recommendation. See Dkt. Nos. 10 and 11. 24 Having reviewed the Report and Recommendation, the Objections thereto, the record of the case, 25 and the relevant legal authority, the Court will adopt the Report and Recommendation and dismiss 26 this case. The reasoning for the Court’s decision follows. 27 1 II. BACKGROUND 2 Plaintiff is a state prisoner who is in the custody of the Washington Department of 3 Corrections (“DOC”). Plaintiff alleges that from 2014 through 2020, the DOC failed to perform 4 blood work or a prostate examine to test him for prostate cancer even though he was in his 40s 5 and had a known family history of prostate cancer. At some point, Plaintiff was transferred to the 6 7 Skagit County Community Justice Center while he awaited retrial on his murder and burglary 8 charges. Plaintiff was diagnosed with prostate cancer in July 2020 and received treatment for the 9 disease while in Skagit County custody. Plaintiff alleges that the cancer would have been detected 10 sooner if appropriate screening had been conducted while he was in DOC’s custody. 11 Plaintiff further claims that when he was transferred back to DOC custody after his retrial, 12 he was denied mental health medications that he had been prescribed while in Skagit County 13 custody. Plaintiff alleges that DOC’s alleged failure to properly screen for prostate cancer and its 14 15 alleged denial of mental health medications violates his Eighth and Fourteenth Amendment rights. 16 III. DISCUSSION 17 While Plaintiff alleges violations of both his Eighth and Fourteenth Amendment rights, his 18 allegations only implicate the Eighth Amendment; therefore, the Court will assess his claims 19 under that framework. To establish an Eighth Amendment violation for inadequate medical care, 20 a plaintiff must demonstrate that he had a “serious medical need,” and that defendants’ response 21 to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 22 23 (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by 24 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). A prison official is 25 deliberately indifferent to a serious medical need if he “knows of and disregards an excessive risk 26 to inmate health.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). To be found liable under the 27 1 Eighth Amendment, “the official must both be aware of facts from which the inference could be 2 drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. “If a 3 [prison official] should have been aware of the risk, but was not, then the [official] has not 4 violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cty. of Washoe, 290 5 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds by Castro v. County of Los Angeles, 6 7 833 F.3d 1060 (9th Cir. 2016). 8 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 9 (9th Cir. 2004). An inadvertent or negligent failure to provide adequate medical care is 10 insufficient to establish a claim under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 11 105-06 (1976); see also Farmer, 511 U.S. at 835 (finding “ordinary lack of due care” is 12 insufficient to establish an Eighth Amendment claim). Moreover, mere differences of opinion 13 between a prisoner and prison medical staff or between medical professionals regarding the 14 15 proper course of treatment does not give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058. “[T]o 16 prevail on a claim involving choices between alternative courses of treatment, a prisoner must 17 show that the chosen course of treatment ‘was medically unacceptable under the circumstances,’ 18 and was chosen ‘in conscious disregard of an excessive risk to [the prisoner’s] health.’” Id. 19 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 20 A. Claims related to Prostate Cancer 21 Plaintiff alleges that Defendants Dr. Clifford Johnson, Stephen Sinclair, and Cheryl 22 23 Strange violated his Eight Amendment rights by failing to screen Plaintiff for prostate cancer 24 from 2014 to 2020 while he was in DOC custody. The Report and Recommendation recommends 25 that this Court dismiss these claims against Defendants Sinclair and Strange because they are 26 supervisory officials and Plaintiff pleads no facts demonstrating that either Defendant had direct 27 1 knowledge or involvement in decisions regarding Plaintiff’s medical care. This Court agrees and 2 will adopt the recommendation as to Defendants Sinclair and Strange. See Starr v. Baca, 652 F.3d 3 1202, 1202 (9th Cir. 2011). 4 The Report and Recommendation further recommends that this Court dismiss the claims 5 against Defendant Johnson. Dr. Johnson was the medical doctor on staff at the Clallam Bay 6 7 Corrections Center in 2014 where Plaintiff was housed at the time. Plaintiff faults Dr. Johnson for 8 not undertaking appropriate prostate cancer screening when the doctor examined him in 2014. 9 Judge Peterson recommends that this Court dismiss the claims against Dr. Johnson because 10 Plaintiff alleged insufficient facts to demonstrate that Dr. Johnson was deliberately indifferent to a 11 serious medical need when Plaintiff was purportedly under his care and, even if sufficient facts 12 had been alleged, the claim would be time-barred by the applicable three-year statute of 13 limitations. Plaintiff objects to this recommendation with two contradictory statements. He first 14 15 argues that he could not have brought the claim against Dr. Johnson sooner because the doctor 16 failed to examine him for prostate cancer “back in 2014”, but he then claims that the doctor did 17 examine him and found that his prostate was enlarged and therefore should have started treatment. 18 Dkt. No. 10 at 3-4. Both of Plaintiff’s allegations are contradicted by Plaintiff’s own exhibits, 19 which include a medical record from July 16, 2014 that states that Plaintiff was given a prostate 20 exam on July 7, 2014 and the prostate was “normal”. Dkt. No. 10, Ex. 1 at 10. This medical 21 record demonstrates that Plaintiff was both examined in 2014 and his prostate was determined to 22 23 be normal. Therefore, Plaintiff cannot state a claim for relief against Dr. Johnson and the claim 24 must be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). 25 26 27 1 B. Claim related to Mental Health Medication 2 Next Plaintiff alleges that Defendant Strange and Defendant Amy Mok violated his Eighth 3 Amendment rights by denying him adequate mental health medication. As stated above, when 4 Plaintiff was transferred back to DOC custody from Skagit County, his mental health medications 5 were reduced. Specifically, when Plaintiff was in Skagit County’s custody, he was prescribed 6 7 venlafaxine and bupropion, but when he was transferred back to DOC’s custody, he was advised 8 that bupropion was restricted at DOC and he needed to meet with the psychiatry staff to initiate 9 taper of that medication and discuss alternatives. Plaintiff refused to meet with the psychiatry staff 10 so Defendant Mok advised Plaintiff that she would taper and discontinue his medications. 11 Plaintiff was advised that DOC prescribers could not continue him on medication that they did not 12 prescribe without first establishing a provider/patient relationship with him. Plaintiff subsequently 13 agreed to meet with psychiatry and his venlafaxine medication was increased again. Plaintiff 14 15 asserts, however, that he has received no substitute for bupropion, which, in his opinion, means he 16 continues to be under-medicated. 17 Judge Peterson recommended that this claim be dismissed for failure to state a claim that 18 rises to the level of an Eighth Amendment violation. This Court agrees. At most, Plaintiff has 19 identified nothing more than a difference of opinion regarding the proper course of treatment for 20 his mental health issues and such a difference of opinion does not rise to the level of an Eighth 21 Amendment violation. See Toguchi, 391 F.3d at 1058 (noting that a difference of opinion between 22 23 a prisoner and prison medical staff regarding proper course of treatment does not give rise to a 24 §1983 claim). And, as Judge Peterson noted, Plaintiff’s claim of deliberate indifference is 25 undermined by his own lack of cooperation with the DOC mental health providers. Therefore, the 26 Court will dismiss this claim pursuant to 28 U.S.C. § 1915A(b)(1). 27 1 IV. CONCLUSION 2 For the foregoing reasons, this Court HEREBY ADOPTS the Report and 3 Recommendation of Judge Peterson and DISMISSES the complaint without prejudice, under 29 4 U.S.C. § 1915A(b)(1), for failure to state a claim upon which relief may be granted. The Court 5 further DENIES Plaintiff’s request to proceed in forma pauperis and motion for preliminary 6 7 injunctive relief as moot. 8 The Clerk is respectfully directed to send copies of this order to Plaintiff and to Judge 9 Peterson. 10 Dated this 6th day of December 2021. 11 A 12 13 B arbara Jacobs Rothstein U.S. District Court Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27