Opinion
C21-5326-BHS-MLP
02-22-2022
LOUIS JAMES THIBODEAUX, Plaintiff, v. RON HAYNES, et al., Defendants.
REPORT AND RECOMMENDATION
MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This is a 42 U.S.C. § 1983 prisoner civil rights action. Plaintiff Louis Thibodeaux (“Plaintiff”), a pro se prisoner proceeding in forma pauperis (“IFP”), is currently confined at the Washington State Penitentiary (“WSP”) in Walla Walla, Washington. Plaintiff has filed an amended complaint alleging violations of his Eighth Amendment rights stemming from his contraction of COVID-19 during his previous incarceration at the Stafford Creek Corrections Center (“SCCC”). (Am. Compl. (dkt. # 19) at 9-11.)
This matter is before the Court on: (1) Plaintiff's motion for summary judgment (“Plaintiff's Motion”) (Pl.'s Mot. (dkt. # 37)); and (2) Defendants SCCC Superintendent Ron Haynes, Washington Department of Corrections (“DOC”) Chief Medical Officer Sara Kariko, SCCC Facility Medical Director Ryan Herrington, SCCC Corrections Unit Supervisor (“CUS”) Dennis Cherry, SCCC Officer David Christensen, and SCCC Food Services Manager Ron Attard's (“Defendants”) cross-motion for summary judgment (“Defendants' Cross-Motion”) (Defs.' Cross-Mot. (dkt. # 40)). In addition, Defendants' reply in support of their Cross-Motion contained a motion to strike (“Defendants' Strike Motion”) a portion of an Office of Corrections Ombuds Monitoring Report on SCCC (“OCO Report”) that Plaintiff submitted in support of his Motion. (Defs.' Strike Mot. (dkt. # 49).)
On August 27, 2021, Defendants filed a notice to the docket indicating that Defendant Christensen died before the filing of the instant matter, and that Defendants' counsel is unaware of the identity of Defendant Christensen's personal representative for his estate. (Dkt. # 30.) As such, Defendant Christensen remains unserved. Nevertheless, Plaintiff concedes to dismissal of Defendant Christensen with prejudice due to his passing. (See Pl.'s Strike Resp. (dkt. # 51) at 3.)
Having considered the parties' submissions, the governing law, and the balance of the record, the Court recommends that: (1) Defendants' Strike Motion (dkt. # 49) be GRANTED; (2) Plaintiff's Motion (dkt. # 37) be DENIED; and (3) Defendants' Cross-Motion (dkt. # 40) be GRANTED, as further explained below.
II. BACKGROUND
A. Procedural History
On May 4, 2021, Plaintiff, along with two other inmates at the SCCC, filed an IFP application and proposed complaint alleging Eighth Amendment claims arising from the SCCC's handling of the COVID-19 pandemic, its internal COVID-19 protocols, and his contraction of COVID-19. (Dkt. # 1.) On May 12, 2021, this Court issued an order to show cause due to IFP deficiencies and improper joinder, and on May 26, 2021, Plaintiff filed a response. (Dkt. ## 11, 14.) Based on Plaintiff's response, this Court issued a Report and Recommendation recommending that Plaintiff be granted IFP status and that he be allowed to proceed in this action with the claims pertaining to him. (R. & R. (dkt. # 15) at 7.)
On July 26, 2021, the Honorable Benjamin H. Settle adopted this Court's Report and Recommendation, and Plaintiff's amended complaint was filed. (Dkt. ## 18-19.) On July 29, 2021, this Court directed service of Plaintiff's amended complaint. (Dkt. # 22.) On September 27, 2021, Defendants filed their answer. (Answer (dkt. # 33).)
Plaintiff submitted his amended complaint to the Court on July 2, 2021, after the Report and Recommendation was issued but before it was adopted by Judge Settle. (See dkt. # 16.)
On October 19, 2021, Plaintiff filed his Motion. (Pl.'s Mot.) On November 5, 2021, Defendants filed their response and Cross-Motion. (Defs.' Cross-Mot.) Defendants additionally submitted declarations from Defendants' counsel, DOC Deputy Director of Health Services Scott Russell, WSP Legal Liaison Rochelle Stephens, and Defendant Attard. (Feulner Decl. (dkt. # 41); Russell Decl. (dkt. # 42); Stephens Decl. (dkt. # 43); Attard Decl. (dkt. # 44).) On November 16, 2021, Plaintiff filed a combined response and reply. (Pl's. Resp. (dkt. # 47)). On December 8, 2021, Defendants filed their reply, which contained their motion to strike. (Defs.' Strike Mot.)
On December 9, 2021, this Court authorized Plaintiff to file a response to Defendants' Strike Motion (dkt. # 50), which Plaintiff filed on December 14, 2021 (Pl.'s Strike Resp. (dkt. # 51)). On December 17, 2021, Defendants filed their reply. (Defs.' Strike Reply (dkt. # 53).) This matter is now ripe for the Court's review.
B. Factual Background
Beginning in February 2020, DOC implemented several policies and procedures to address the risk of COVID-19 to its inmates and staff. (Russell Decl. at ¶¶ 5, 7-8.) Among these measures, DOC required screening and testing of all inmates and staff, isolation and quarantine of affected individuals, medical care for individuals who tested positive for COVID-19, preventative measures for high-risk inmates housed in certain units, and use of personal protective equipment (“PPE”) throughout its facilities. (Id. at ¶¶ 10, 15-21.) DOC's COVID-19 protocol (“Guideline”) remains in place and continues to be updated. (Id. at ¶ 10; see also id., Ex. 1 (dkt. # 42-1) at 2-95.)
On January 15, 2019, Plaintiff was transferred to SCCC. (Feulner Decl., Ex. 1 (dkt. # 41-1) at 13; Am. Compl. at 3.) Per his amended complaint, Plaintiff alleges that at some unidentified time in December 2020, he was infected with COVID-19 and that his exposure came as a result of CUS Cherry bringing the virus into the H-1 Unit at the SCCC. (Am. Compl. at 3, 7.) Plaintiff further alleges he was subsequently transferred to the H-6 Unit at the SCCC, where he was again exposed to COVID-19 by Officer Christensen. (Id. at 3.)
As a result of his exposures to COVID-19 from Defendants Cherry and Christensen, Plaintiff alleges he contracted the virus and that he had to be hospitalized in January 2021 for six days due to severe chest pain and respiratory complications. (Am. Compl. at 3.) Plaintiff notes that he has several underlying health issues that put him at heightened risk for complications because he is a 59-year-old African American male. (Id. at 7.) Plaintiff has also previously been diagnosed with heart disease, chronic obstructive pulmonary disease (“COPD”), hypertension, diabetes, and obesity. (Id.; see also Feulner Decl., Ex. 2 (dkt. # 41-1) at 16-19.) Plaintiff further alleges that he has since suffered severe damage to his lungs and other vital organs, myocarditis, and that he now requires portable oxygen as a result of his COVID-19 infection. (Am. Compl. at 8.)
Per Defendants' account, on November 30, 2020, Plaintiff was tested for COVID-19 and received a positive result on December 4, 2020. (Feulner Decl., Ex. 2 at 60.). Plaintiff was tested again on December 1, 2020, and that test also came back positive on December 7, 2020. (Id. at 62.) After his positive COVID-19 diagnosis, Plaintiff's vital signs were monitored by SCCC medical staff and remained stable. (Id. at 47-59.) Plaintiff was seen by SCCC medical staff on December 4, December 10, and December 11, 2020. (Id. at 61, 63-64.) During those visits, SCCC medical staff noted that he was experiencing mild COVID-19 symptoms, including cough and shortness of breath. (Id.)
On December 14, 2020, Plaintiff was again seen by SCCC medical staff, but was noted as asymptomatic. (Feulner Decl., Ex. 2 at 65.) During the period of time Plaintiff had COVID-19, no inmate was transferred into his cell prior to his positive COVID-19 diagnosis, but one inmate was transferred into his cell after he tested positive. (Stephens Decl. at ¶ 3.) On December 28, 2020, Plaintiff reported to SCCC medical staff during a visit that a third individual was planned to be placed in his cell and that he was concerned about space. (Feulner Decl., Ex. 2 at 66.) As a result, SCCC Physician Assistant Certified (“PAC”) Erin Lystad issued Plaintiff a health status report for a two-person cell due to the space required for Plaintiff's medical equipment. (Id. at 66-67.)
On January 7, 2021, Plaintiff tested negative for COVID-19. (Feulner Decl., Ex. 2 at 68.) On January 19, 2021, Plaintiff received an inconclusive test for COVID-19. (Id. at 73-74.). On January 22, 2021, Plaintiff was seen by SCCC medical staff for COVID-19 based on his inconclusive test but was noted as asymptomatic. (Id. at 74.)
On January 27, 2021, Plaintiff complained of chest pain to SCCC medical staff, and he was transferred to the Grays Harbor Community Hospital where he returned “an abnormal stress test with reversible ischemia.” (Feulner Decl., Ex. 2 at 75, 84.) Because the Grays Harbor Community Hospital lacked cardiology services, Plaintiff was transferred to Capital Medical Center in Olympia, Washington on January 29, 2021. (Id. at 84.) On January 31, 2021, Plaintiff was discharged from the hospital in stable condition. (Id. at 84, 96.) Plaintiff was then housed in the SCCC infirmary for one night before being released back to his cell. (Id. at 96-98.) Plaintiff told SCCC medical staff during his infirmary stay that his chest pain might be related to stress stemming from having received a new cellmate. (Feulner Decl., Ex. 2 at 97; see also Stephens Decl. at ¶ 3.)
Since his positive COVID-19 diagnosis in December 2020, Plaintiff has continued to receive medical attention from DOC for his medical conditions. (Feulner Decl., Ex. 2 at 99-104.) On June 22, 2021, Plaintiff was issued a portable oxygen tank as a result of his COPD and hypoxia with exertion. (Id. at 105.) In September 2021, Plaintiff complained of chest pain on two separate occasions, and received care both times at WSP and from a hospital but was not found to be suffering from any acute cardiopulmonary abnormalities. (Id. at 107-08, 111-14, 118.) On October 4, 2021, Plaintiff was seen by WSP medical staff in regard to his chest pain and diabetes. (Id. at 119-26.)
C. Plaintiff's Claims
Plaintiff's first cause of action alleges a violation of his Eighth Amendment rights against Defendants, and “Does 1-10, ” based on his conditions of his confinement at the SCCC due to Defendants' handling of the COVID-19 pandemic and the SCCC's internal COVID-19 protocols. (See Am. Compl. at 9-10.) Plaintiff alleges that he was unable to protect himself from COVID-19, and that the virus was allowed to spread at the SCCC due to Defendants' actions. (Id.)
Plaintiff has not amended his complaint to include the identity of “Does 1-10, ” and therefore, such individuals remain unserved. Because Plaintiff has not sufficiently identified the Doe Defendants, he has not shown that any of these intended Defendants personally participated in causing the alleged harm. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977).
Plaintiff's second cause of action alleges that, pursuant to § 1983, Defendants Haynes, Kariko, Herrington, Cherry, Attard, and “Does 1-10, ” instituted official policies and procedures at the SCCC that deprived him of timely medical care, treatment, testing, effective COVID-19 PPE, and adequate segregated housing to mitigate COVID-19 exposures. (Am. Compl. at 10-11.) Plaintiff further alleges under this cause of action that Defendants Haynes, Kariko, Herrington, Cherry, Attard, and “Does 1-10, ” falsely reported to DOC that the SCCC followed COVID-19 avoidance procedures and that they negated the administrative process to provide him emergency relief. (Id. at 11.)
Plaintiff seeks declaratory and injunctive relief, damages, and costs. (Am. Compl. at 11-14.) Specifically, Plaintiff requests a temporary restraining order or preliminary injunction requiring Defendants to identify Plaintiff as a “medically vulnerable inmate, ” to identify an expert to classify appropriate categories of release for him, to arrange for Plaintiff to be seen by different physicians and for additional medical treatment, to release him to home confinement, and to expunge all court fees, costs, and institutional debts from his record. (Id. at 11-14.) Plaintiff additionally requests that his conditions and place of confinement be modified, and that a portion of his sentence be stricken. (Id. at 12.) Finally, Plaintiff requests declaratory judgment that the SCCC's COVID-19 policy violated his Eighth Amendment rights. (Id. at 13.)
III. DISCUSSION
Plaintiff's Motion seeks summary judgment based on his allegations that Defendants violated his Eighth Amendment rights due to their alleged failure to protect him from contracting COVID-19 at the SCCC. (Pl.'s Mot. at 1-4, 12-16.) Specifically, it appears Plaintiff's Motion argues summary judgment is appropriate because Defendants placed a COVID-19 positive inmate in his cell two days after he previously tested negative and that he contracted COVID-19 due to this exposure. (Id. at 9-10.) Defendants' Cross-Motion moves for summary judgment on the basis that: (1) Plaintiff failed to establish deliberate indifference on the part of any named Defendant; (2) Defendants are entitled to qualified immunity; and (3) Plaintiff failed to raise a non-moot claim for declaratory or injunctive relief. (Defs.' Mot at 12-19.)
In Plaintiff's Motion and Strike Response, and in an attached declaration that included several recent medical kite exhibits, it appears Plaintiff attempts to raise retaliation and conditions of confinement claims stemming from Defendants' grievance responses and his transfer to WSP, in addition to claims pertaining to Defendants' alleged failure to provide him with a heart healthy diet. (See Pl.'s Mot. at 2-4; dkt. # 38 at ¶¶ 6-7, 9-12; Pl.'s Strike Resp. at 4-6, 8; dkt. # 52 at ¶¶ 3-6.) However, such claims were not raised in Plaintiff's amended complaint (see Am. Compl. at 9-11), and thus, the Court will not consider them on summary judgment. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (finding that a party generally cannot raise new claims at the summary judgment stage); Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“[S]ummary judgment is not a procedural second chance to flesh out inadequate pleadings.”) (citation and internal quotation omitted).
Because Plaintiff's allegations fail to demonstrate a violation of his Eighth Amendment rights in the first instance, the Court declines to address whether Defendants are additionally entitled to qualified immunity. Qualified immunity protects officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. 7, 11, (2015); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here, a qualified immunity analysis is unnecessary because Plaintiff failed to demonstrate Defendants' alleged actions violated his Eighth Amendment rights.
As explained further below, the Court concludes there are no genuine issues of material fact regarding Plaintiff's claims, Plaintiff fails to establish that Defendants violated his Eighth Amendment rights, and that Defendants are entitled to summary judgment.
Footnote Matter Not Avaliable.
A. Motion to Strike
Defendants' Strike Motion requests that a portion of the OCO Report included in Plaintiff's declaration submitted in support of his Motion be stricken. (Defs.' Strike Mot. at 2-3.) The OCO Report attached to Plaintiff's declaration included a portion detailing two use of force incidents that occurred at the SCCC against black individuals. (Pl.'s Decl. (dkt. # 48-1) at 38-48.) Defendants argue that this portion of the OCO Report should be stricken as irrelevant and as improper propensity evidence. (Defs.' Strike Mot. at 2-3.) Plaintiff submits that the OCO Report is necessary because it is a “use of force on Black men at SCCC.” (Pl.'s Decl. (dkt. # 48) at ¶ 2.)
In opposing summary judgment, when a party relies upon evidence that is inadmissible, such evidence can be stricken by the court. See Fed. R. Civ. P. 56(c)(2); Local Civil Rule 7(g); see also Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.”) (citation omitted). Here, the Court finds that the portion of the OCO Report challenged by Defendants should be stricken as irrelevant. Plaintiff's claims do not include any allegations of use of force, there is no evidence that named Defendants were involved in the incidents identified in the OCO Report, and the events described in the OCO Report do not involve Plaintiff. (See Pl.'s Decl. at 38-48.) Plaintiff claims the OCO Report is evidence of how “Defendants continuously file incident reports as well [as] falsify documents to cover up their cruel and unusual demeanors.” (Pl.'s Strike Resp. at 4.) As such, it appears Plaintiff is also improperly seeking to use the OCO Report as propensity evidence. See Fed. R. Evid. 404.
In any event, Plaintiff's Strike Response fails to rebut Defendants' Strike Motion and instead argues the merits of his claims and other grievances that were not raised in his amended complaint. (See Pl.'s Strike Response.) Consequently, the Court will not consider the portion of the OCO Report regarding the two use of force incidents in its adjudication of the parties' motions.
B. Motions for Summary Judgment
First, in addressing the parties' motions, the Court notes that Plaintiff's amended complaint was not signed under penalty of perjury. (See Pl.'s Am. Comp. at 15.) As such, Plaintiff's amended complaint cannot be considered as evidence in seeking or opposing summary judgment. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (finding in a pro se case, the court will consider a complaint signed under penalty of perjury as evidence to the extent it is based upon personal knowledge that would be admissible in evidence); Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) (to be a “verified” complaint considered as evidence, the complaint must be signed under penalty of perjury in compliance with 28 U.S.C. § 1746).
Nevertheless, even if the allegations in Plaintiff's amended complaint are considered, the Court finds that Plaintiff fails to present sufficient evidence to support his claims in his Motion, and that Defendants are entitled to summary judgment on their Cross-Motion.
i. Legal Standards
1. Summary Judgment
Summary judgment is appropriate when the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of showing the Court “that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. The moving party can carry its initial burden by producing affirmative evidence that negates an essential element of the nonmovant's case or by establishing that the nonmovant lacks the quantum of evidence needed to satisfy its burden at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden then shifts to the nonmoving party to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party. Id. at 585-87.
Genuine disputes are those for which the evidence is such that a “reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 257. The opposing party must present significant and probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). “The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient[]” to defeat summary judgment. Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Likewise, allegations that are based merely on a party's belief are insufficient to oppose summary judgment, as are unsupported conjecture and conclusory statements. See Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003); McElyea v. Babbitt, 833 F.2d 196, 197-98 n.1 (9th Cir. 1987) (per curiam).
When parties file cross-motions for summary judgment, each motion “must be considered on its own merits.” Fair Housing Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The Court must review the evidence submitted in support of each cross-motion and determine whether disputed issues of material facts are present. Id.
2. Section 1983 Claims
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) he suffered a violation of his rights protected by the Constitution or created by federal statute; and (2) the violation was proximately caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy the second prong, a plaintiff must allege facts showing how individually named defendants caused or personally participated in the harm alleged in the complaint. Arnold, 637 F.2d at 1355. The causation requirement of § 1983 is satisfied only if a plaintiff demonstrates a defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act he was legally required to do that caused the deprivation complained of. Id. (citing Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).
ii. Plaintiff's Motion
The Eighth Amendment's Cruel and Unusual Punishment Clause prohibits conditions of confinement that involve the “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986); see Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). A prisoner claiming an Eighth Amendment violation based on conditions of confinement “must show (1) that the deprivation he suffered was ‘objectively, sufficiently serious'; and (2) that prison officials were deliberately indifferent to his safety in allowing the deprivation to take place.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
To establish an Eighth Amendment violation related to medical care, an inmate must prove “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106; see also Clouthier v. County of Contra Costa, 591 F.3d 1232, 1241 (9th Cir. 2010). Prison officials may be deemed to have been deliberately indifferent to an inmate's serious medical needs “when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citations and internal quotation marks omitted). However, a prison official may be held liable “only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847.
In this case, Plaintiff's Motion and submitted evidence regarding his contraction of COVID-19 neither aligns with his claims as articulated in his amended complaint nor does it demonstrate that any of the named Defendants were deliberately indifferent to his safety. First, Plaintiff's Motion fails to supply a theory or argument for how he contracted COVID-19 from an alleged exposure from CUS Cherry or Officer Christensen, which was previously alleged in his amended complaint. (Compare Am. Compl. at 2 with Pl.'s Mot.) Plaintiff's Motion and response appear to instead allege he is entitled to summary judgment against Defendants because he tested negative for COVID-19 on November 30, 2020, but tested positive two days later on December 1, 2020, as a result of Defendants' placement of a COVID-19 positive inmate in his cell on December 7, 2020. (See Pl.'s Mot. at 9-10; Pl.'s Resp. at 2-3.) Plaintiff additionally submits that PAC Lystad noted he was exposed to COVID-19 at SCCC by another inmate. (Pl.'s Resp. at 2.)
Based on the record, it appears Plaintiff actually received a new cellmate on December 4, 2020. (Stephens Decl. at ¶ 3.)
However, Plaintiff's submitted documentation from his COVID-19 testing on November 30, 2020, accords with Defendants' submission of the same testing and demonstrates that his November 30, 2020 test was-in fact-positive. (Compare Pl.'s Resp., Ex. 1 (dkt. # 47-1) at 1 with Feulner Decl., Ex. 2 at 60.) In any event, the temporal nature of Plaintiff's allegations fails to demonstrate any particularized wrongdoing as to any named Defendant or demonstrate how Defendants' alleged placement of a COVID-19 positive inmate in his cell on December 7, 2020, resulted in his contraction of the virus a week prior. Moreover, the document Plaintiff cites to from PAC Lystad merely indicates that Plaintiff tested positive after a suspected exposure while housed at the SCCC but does not identify the source of such exposure. (See Feulner Decl., Ex. 2 at 65.)
Finally, Plaintiff's cited references to the OCO Report as to the inadequacy of SCCC's COVID-19 response does not present evidence that Defendants were deliberately indifferent to his safety. (Pl.'s Resp. at 6.) To the contrary, the OCO Report lauded the SCCC's efforts at mitigating the spread of COVID-19. (See Pl.'s Decl. at 1 (“[I]t was evident that the COVID-19 outbreak was being taken very seriously by staff . . . SCCC are clearly taking actions to isolate individuals with known positive cases of COVID-19, quarantine suspected/potential cases, and to restrict movement of the rest of the compound to prevent further spread of the disease.”).
Defendants raise the question of whether the OCO Report could be presented in an admissible form at trial. (Defs.' Strike Mot. at 5 n.4 (citing RCW 43.06C.060).) However, because the Court concludes the OCO Report does not provide evidence of Plaintiff's claims, the Court need not address that evidentiary concern.
Summary judgment requires the moving party to present evidence that, if uncontroverted at trial, would entitle it to prevail as a matter of law on an issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1473 (9th Cir. 1994). Because Plaintiff's allegations and evidence fail to support his Eighth Amendment claims against Defendants, the Court recommends that Plaintiff's Motion be denied.
iii. Defendants' Cross-Motion
In regard to Defendants' Cross-Motion, based on the record before the Court, Defendants have sufficiently demonstrated that they addressed COVID-19 risks at the SCCC and attempted to mitigate such risks. As noted above, DOC developed and implemented a Guideline plan to mitigate the spread of COVID-19 at its facilities, including the SCCC, which continues to remain in place. (Russell Decl. at ¶¶ 5, 10; see also id., Ex. 1 at 2-95.) DOC's Guideline plan provides for extensive COVID-19 protocols, including screening, testing, monitoring, isolation and quarantine, medical care for COVID-19 positive individuals, provision of COVID-19 PPE, social distancing, and prison population reduction efforts. (Id. at ¶¶ 5, 10, 14-32.) In addition, DOC has now vaccinated the majority of DOC inmates, and all DOC staff, in positions requiring in-person interaction with inmates, have also been fully vaccinated. (Id. at ¶¶ 35-42.) Though DOC did not eliminate all risk of contracting COVID-19, Plaintiff's allegations fail to establish that Defendants knew of, and otherwise disregarded, an excessive risk to his health or safety based on their COVID-19 response in regard to his conditions of confinement. See Fraihat v. U.S. Immigr. & Customs Enforcement, 16 F.4th 613, 636-38 (9th Cir. 2021) (finding detainees failed to demonstrate ICE acted with deliberate indifference where ICE complied with CDC interim guidance for its detention facilities, enacted system for reporting suspected or confirmed COVID-19 cases on expedited timeframe, and enabled discretionary release of at-risk detainees); Hope v. Warden York Cty. Prison, 972 F.3d 310, 330 (3rd Cir. 2020) (“Nor does a failure to eliminate all [COVID-19] risk establish that the Government was deliberately indifferent to [plaintiffs'] serious medical needs.”); see also Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (finding prison officials took adequate actions to mitigate risk of COVID-19 and that such actions demonstrated a lack of deliberate indifference); Swain v. Junior, 961 F.3d 1276, 1287-1289 (11th Cir. 2020) (same).
Per Defendants' submitted declarations, as of November 2, 2021, 9, 649 incarcerated individuals had received at least one dose of the COVID-19 vaccine. (Russel Decl. at ¶ 40.)
Furthermore, based on the allegations in Plaintiff's second cause of action, it is clear from the record that Defendants were not deliberately indifferent to his serious medical needs after his COVID-19 diagnosis nor was he denied adequate medical treatment. As previously documented, Plaintiff was treated immediately after he contracted COVID-19, received constant vital sign monitoring, and was seen by SCCC medical staff at least four times across a 10-day period for his mild COVID-19 symptoms. (See Feulner Decl., Ex. 2 at 47-59, 61, 63-65.) After Plaintiff tested negative for COVID-19 on January 7, 2021, he remained monitored by Defendants for COVID-19, received medical care for his complaints of chest pain, and has continued to receive medical care for his chronic medical conditions. (Id. at 68, 73-75, 84, 96-98, 99-105, 107-08, 111-14, 118-26.)
Plaintiff appears to attribute his medical complications to his contraction of COVID-19, but it is clear from the record that Plaintiff suffers from several long-term medical conditions, including COPD, and there is no evidence before the Court that his hospitalization in late January 2021 came as a result of complications stemming from his contraction of COVID-19. Though Plaintiff believes he should have received different medical treatment, this belief is also insufficient to establish an Eighth Amendment violation. See Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (finding that deliberate indifference to a serious medical need requires more than a difference of opinion between an inmate and medical authorities regarding treatment).
In conclusion, Plaintiff fails to demonstrate that Defendants were deliberately indifferent to his safety or serious medical needs, or that he was otherwise denied adequate medical treatment, based on Defendants' actions. Accordingly, the Court recommends that Defendants' Cross-Motion be granted.
IV. CONCLUSION
For the foregoing reasons, the Court recommends that: (1) Defendants' Strike Motion (dkt. # 49) be GRANTED; (2) Plaintiff's Motion (dkt. # 37) be DENIED; and (3) Defendants' Cross-Motion (dkt. # 40) be GRANTED. A proposed Order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within twenty-one (21) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on March 18, 2022.
The Clerk is directed to send copies of this Report and Recommendation to the parties and to the Honorable Benjamin H. Settle.