Oppen v. Phillips et al, No. 2:2013cv05147 - Document 41 (E.D. Wash. 2015)
Court Description: ORDER DENYING PLAINTIFF'S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - denying 35 Motion to Voluntarily Dismiss Complaint ; granting 36 Motion for Summary Judgment Signed by Chief Judge Rosanna Malouf Peterson. (VR, Courtroom Deputy)
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Oppen v. Phillips et al Doc. 41 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 DICKIE CLAIR OPPEN, NO: 2:13-CV-5147-RMP Plaintiff, 8 v. ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 9 10 11 JO PHILLIPS and JAMES EDWARDS, Defendants. 12 13 Before the Court is pro se Plaintiff Dickie Clair Oppen’s Motion to 14 Voluntarily Dismiss the Complaint Pursuant to Rule 41(a), ECF No. 35, and 15 Defendants’ Motion for Summary Judgment, ECF No. 36. The Court has 16 reviewed the motions, all other relevant findings, and is fully informed. 17 18 BACKGROUND Plaintiff Oppen (“Oppen”) filed a civil rights complaint under 42 U.S.C. § 19 1983 in this Court on November 27, 2013. ECF No. 1. Following Magistrate 20 Judge John T. Rodgers’ order directing Oppen to amend or voluntarily dismiss his 21 complaint, ECF No. 8, Oppen filed his first amended complaint on February 18, ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2014. ECF No. 9. Oppen seeks damages and injunctive relief against Defendants 2 Phillips and Edwards 1 regarding violations of his Eighth and Fourteenth 3 Amendment rights while housed at the Washington State Penitentiary (“WSP”). 4 Oppen is currently housed at the Stafford Creek Corrections Center at 191 5 Constantine Way in Aberdeen, Washington 98520. ECF No. 29 at 1. However, at 6 all times relevant to this action, including the filing of his complaint, ECF No. 1, 7 Oppen resided at the WSP at 1313 N. 13th St. in Walla Walla, Washington 99362. 8 ECF No. 9 at 2. The parties agree that Oppen suffers from Guillain-Barre Syndrome 9 10 (“GBS”). ECF No. 9, Attach. A-1; ECF No. 20 at 3. Defendant, Dr. James 11 Edwards 2, explains that GBS is “an immune reaction that affects the nervous 12 system causing gradual paralysis.” ECF No. 37-3, Ex. 2 at 2. Dr. Edwards admits 13 that neuropathic pain may occur in roughly 40-50 percent of patients during the 14 course of GBS. ECF No. 37-3, Ex. 2 at 3. Oppen contends that his symptoms 15 include exhaustion, neuro-muscular paralysis, excruciating and constant pain, and 16 17 18 1 The Court granted the parties’ stipulated motion to dismiss Defendants Bowman and Rima with prejudice on December 18, 2014. ECF No. 34. 19 2 Dr. Edwards treated Oppen for symptoms of his GBS while housed at WSP 20 between January of 2013 and March of 2014. ECF No. 37-3, Ex. 2 at 2. 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 2 1 muscle spasms in his back, neck, and legs. ECF No. 1, Attach. B-1. These 2 symptoms were documented as neuropathic pain. ECF No. 9, Ex. 2. 3 Oppen states that from 2001 until 2006, he was treated for the symptoms of 4 his GBS and was subjected to rigorous testing of different medications to discover 5 the most effective medication to manage his pain. ECF No. 1, Attach. B-1. On 6 June 7, 2007, Oppen was indefinitely prescribed the drug “Gabapentin” 3 to treat 7 his chronic pain associated with GBS. ECF No. 9, Ex. 2. On July 5, 2013, Defendant Jo Phillips, Oppen’s treating Physican’s 8 9 Assistant at the WSP, submitted a request for renewal of Oppen’s Gabapentin 10 prescription. ECF No. 37-3, Attach. A. The DOC Pharmacy & Therapeutics 11 12 3 At the time that Oppen was prescribed Gabapentin in 2007, the drug was 13 classified as a “formulary” medication by the Washington State Department of 14 Corrections (“DOC”). ECF No. 37-1 at 4. A formulary medication may be 15 prescribed whenever medically necessary and did not require further approval for 16 continued use. ECF No. 37-1 at 4. On October 5, 2012, the DOC re-classified 17 Gabapentin as a “restricted formulary” drug that required annual review of the 18 patient’s eligibility for continued use, with a maximum authorization of one year 19 upon approval of the request for continued use. ECF No. 37-1 at 23; ECF No. 37-2 20 at 96. 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 3 1 Committee (“P&T Committee”) 4, responsible for reviewing all renewal requests, 2 denied the request. ECF No. 37-3, Attach. A. The P&T Committee gave the 3 following explanation for the denial of Defendant Phillips’ request: 4 It is not clear from the neuro consults that the patient has a seizure disorder and/or whether he is still experiencing side effects related specifically to Guillain-Barre, or that the pain is neuropathic in nature. Please begin the taper process for the gabapentin and titrate with a formulary alternative (higher dose of nortriptyline or carbamazepine). Should he fail these options, further alternatives would be submission of NFR for either topiramate (especially if he shows return of seizure activity) or duloxetine. 5 6 7 8 ECF No. 37-3, Attach. A. 9 Defendant Phillips’ medical notes indicate that she met with Oppen on July 10 16, 2013, to explain that the P&T Committee denied his Gabapentin renewal 11 request as of July 13, 2013. ECF No. 37-3, Ex. 3 at 3; ECF No. 37-3, Ex. 3, 12 Attach. C. Defendant Phillips’ report of the meeting indicated that Oppen 13 expressed frustration about the denial to continue Gabapentin and expressed 14 concerns that the suggested alternative drug made him nauseous. ECF No. 37-3, 15 Ex. 3, Attach. C. Noting that nausea is not one of the side effects recognized as a 16 bar to using the alternative drug, Nortriptyline, Defendant Phillips began titration 17 4 “The P&T Committee is a committee of health care practitioners and pharmacists 18 established to manage medication utilization within the Department [of 19 Corrections] in accordance with the Offender Health Plan (OHP).” ECF No. 37-1 20 at 3; see also ECF No. 37 at 2. 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 4 1 as ordered by the P&T Committee. ECF No. 37-3, Ex. 3 at 4; ECF No. 37-3, Ex. 2 3, Attach. C. 3 Defendant Edwards’ records reveal that he met with and examined Oppen on 4 September 3, 2013. ECF No. 37-3, Ex. 2, Attach. A. According to his notes, 5 Defendant Edwards acknowledged Oppen’s request to resume Gabapentin, but 6 explained to Oppen that because the renewal request had been denied, he must try 7 alternative medication. ECF No. 37-3, Ex. 2, at 4-5, ECF No. 37-3, Ex. 2, Attach. 8 A. Oppen agreed to try another alternative medication, venlafaxine. ECF No. 37- 9 3, Ex. 2, at 4-5, ECF No. 37-3, Ex. 2, Attach. A. 10 In his first amended complaint before the Court, Oppen contends that on 11 July 16, 2013 and September 3, 2013, Defendants Phillips and Edwards, 12 respectively, “terminated [his] prescribed medication, gabapentin, without notice 13 and for no valid reason.” ECF No. 9, Attach. A-2. Oppen furthers that Defendants 14 “knew that termination of [his] prescribed medication, gabapentin, would cause an 15 immediate increase in pain and deterioration to his health.” ECF No. 9, Attachs. 16 A-2, A-3. Finally, Oppen argues that Defendants “intentionally terminated [his] 17 prescribed medication, gabapentin, to inflict pain, cause suffering, and to punish 18 [him].” ECF No. 9, Attachs. A-2, A-3. Consequently, Oppen alleges that 19 Defendants violated his rights under both the Eighth and Fourteenth Amendments 20 of the United States Constitution. ECF No. 9, Attachs. A-3, A-4. 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 5 1 Following a series of denied motions to compel discovery and shift the costs 2 of discoverable materials on the Defendants, Oppen filed a Motion to Voluntarily 3 Dismiss the Complaint Pursuant to Rule 41(a) on January 1, 2015. ECF No. 35. 4 Oppen moved to dismiss on the ground that he “does not have the monetary funds 5 to pay for the records” sought to prove his case. ECF No. 35 at 1. Also on January 6 5, 2015, Defendants filed a Motion for Summary Judgment alleging that: 1) Oppen 7 cannot demonstrate an Eighth Amendment violation by either Defendant, 2) even 8 if the Court finds a constitutional violation, Defendants are entitled to qualified 9 immunity with respect to monetary damages, and 3) Oppen’s claims for injunctive 10 11 12 13 relief should be dismissed. ECF No. 36 at 4-10. DISCUSSION A. Defendants’ Motion for Summary Judgment The Court must first determine whether summary judgment is warranted. 14 Summary judgment is appropriate when the moving party establishes that there are 15 no genuine issues of material fact and that the movant is entitled to judgment as a 16 matter of law. Fed. R. Civ. P. 56(a). If the moving party demonstrates the absence 17 of a genuine issue of material fact, the burden then shifts to the non-moving party 18 to set out specific facts showing a genuine issue for trial. Celotex Corp. v. Catrett, 19 477 U.S. 317, 323-25 (1986). A genuine issue of material fact exists if sufficient 20 evidence supports the claimed factual dispute, requiring “a jury or judge to resolve 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 6 1 the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. 2 Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). 3 The evidence presented by both the moving and non-moving parties must be 4 admissible. Fed. R. Civ. P. 56(e). Evidence that may be relied upon at the 5 summary judgment stage includes “depositions, documents, electronically stored 6 information, affidavits or declarations, stipulations . . . admissions, [and] 7 interrogatory answers . . . .” Fed. R. Civ. P. 56(c)(1)(A). The court will not 8 presume missing facts, and non-specific facts in affidavits are not sufficient to 9 support or undermine a claim. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 10 (1990). 11 In evaluating a motion for summary judgment, the Court must draw all 12 reasonable inferences in favor of the nonmoving party. Dzung Chu v. Oracle 13 Corp. (In re Oracle Corp. Secs. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing 14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). However, “when 15 opposing parties tell two different stories, one of which is blatantly contradicted by 16 the record, so that no reasonable jury could believe it, a court should not adopt that 17 version of that facts . . . .” Scott v. Harris, 550 U.S. 372, 380 (2007). 18 To state a claim under 42 U.S.C. § 1983, at least two elements must be met: 19 (1) the defendant must be a person acting under color of state law; and (2) his 20 conduct must have deprived the plaintiff of rights, privileges or immunities secured 21 by the Constitution or the laws of the United States. See Parratt v. Taylor, 451 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 7 1 U.S. 527, 535 (1981), overruled in part on other grounds by Daniels v. Williams, 2 474 U.S. 327 (1986). 3 i. 4 The Court must first determine whether there is any genuine dispute of Eighth Amendment Violation 5 material fact regarding Oppen’s Eighth Amendment claims against Defendants 6 Phillips and Edwards. 7 “The government has an obligation to provide medical care for those whom 8 it is punishing by incarceration,” and failure to meet this obligation can result in an 9 Eighth Amendment violation cognizable under 42 U.S.C. § 1983. Estelle v. 10 Gamble, 429 U.S. 97, 103 (1976). To maintain an Eighth Amendment claim based 11 on medical treatment in prison, the plaintiff must show “deliberate indifference to 12 serious medical needs.” Id. at 104. 13 A “serious medical need” exists if the failure to treat the injury or condition 14 “could result in further significant injury or the ‘unnecessary and wanton infliction 15 of pain.’” Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006) (quoting McGuckin v. 16 Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by 17 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). “Indications 18 that a plaintiff has a serious medical need include the existence of an injury that a 19 reasonable doctor or patient would find worthy of comment or treatment; the 20 presence of a medical condition that significantly affects an individual’s daily 21 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 8 1 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting McGuckin, 974 F.2d at 1059-60) 2 (internal quotation marks omitted). 3 Deliberate indifference to an inmate’s serious medical needs may constitute 4 cruel and unusual punishment under the Eighth Amendment if a prison official 5 knows that the inmate “faces a substantial risk of serious harm” and disregards the 6 “risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 7 U.S. 825, 847 (1994). The official must be both aware of the facts from which an 8 inference of substantial risk of serious harm can be drawn, and the official must 9 actually draw the inference. Id. at 837. Deliberate indifference may occur when 10 prison officials “deny, delay, or deliberately interfere with medical treatment.” 11 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 12 However, a showing of cruel and unusual punishment requires more than an 13 ordinary lack of due care for the inmate’s interests and health. Whitley v. Albers, 14 475 U.S. 312, 319 (1986). Mere medical malpractice, negligence, or an 15 inadvertent failure to provide medical care does not amount to a violation under the 16 Eighth Amendment. Jett, 439 F.3d at 1096 (citations omitted). Nor does a 17 difference in medical opinion as to the need to pursue one course of treatment over 18 another, or the difference in opinion between the prison official and the inmate 19 concerning the appropriate treatment, amount to deliberate indifference. See 20 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Difference in opinion 21 amounts to deliberate indifference only when the course of treatment chosen is ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 9 1 “medically unacceptable under the circumstances” and was chosen “in conscious 2 disregard of an excessive risk to plaintiff’s health.” Id. (citations omitted). Only 3 conduct characterized by “obduracy and wantonness” amounts to deliberate 4 indifference under the Eighth Amendment. Albers, 475 U.S. at 319. 5 Defendants move for summary judgment on Oppen’s Eighth Amendment 6 claim, arguing that there is no genuine issue of material fact as to whether 7 Defendants were deliberately indifferent to Oppen’s medical condition. ECF No. 8 36 at 4. Specifically, Defendants argue that their treatment of Oppen was 9 “consistent with generally accepted medical principles,” as Oppen was only 10 temporarily removed from Gabapentin, while Defendants provided alternative pain 11 medications, as instructed by the P&T Committee. ECF No. 36 at 6. Defendants 12 contend that the “continued consultation and treatment” of Oppen’s GBS did not 13 amount to deliberate indifference. Id. Finally, Defendants argue that Oppen’s 14 assertions merely amount to a difference in opinion, not actionable under the 15 Eighth Amendment. Id. 16 Oppen has not responded to Defendants’ motion for summary judgment. 17 The Court will therefore analyze Oppen’s first amended complaint, ECF No. 9, to 18 determine whether there are genuine issues of material fact. Though the Court 19 must draw all reasonable inferences in favor of Oppen, In re Oracle Corp. Secs. 20 Litig., 627 F.3d at 387, the Court finds that Oppen’s assertions are clearly 21 contradicted by the record. ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 10 1 Defendants concede, and the Court agrees, that Oppen has a serious medical 2 need. Expert medical testimony provides that GBS is a serious debilitating 3 condition that can cause neuropathic pain. ECF No. 37-3, Ex. 2 at 2-3. As a result 4 of his condition, Oppen explains that he suffers excruciating pain that is mitigated 5 only by particular pain medication. ECF No. 1, Attach. B-1. Oppen has been 6 treated for his GBS symptoms and has experimented with different pain 7 medications since 2001, a minimum of fourteen years of attempted pain 8 management. Id. These circumstances establish that Oppen has a serious medical 9 need eligible for treatment by prison officials under Jett and Colwell. 10 However, there is no genuine dispute about whether Defendants denied, 11 delayed, or acted with deliberate interference in treating Oppen’s GBS. 12 Hutchinson, 838 F.2d at 394. First, Defendants did not deny Oppen medical 13 treatment, as they both examined and evaluated Oppen with respect to his GBS and 14 subsequently prescribed and administered pain medication to him. ECF No. 37-3, 15 Ex. 3 at 4; ECF No. 37-3, Ex. 2, Attach. A. Defendants merely followed the orders 16 of the P&T Committee and worked with Oppen to find a suitable alternative pain 17 medication. Id. At most, Defendants denied Oppen’s desired medical treatment, 18 which does not amount to a constitutional violation. See Gamble, 429 U.S. at 103- 19 104. 20 21 Second, Defendants did not delay Oppen’s medical treatment. The record shows that Defendants prescribed Oppen some form of pain medication during all ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 11 1 relevant times. ECF No. 37-3, Ex. 3, Attachs. B-C; ECF No. 37-3, Ex. 2, Attach. 2 A. The record also demonstrates that Defendants engaged in titration and tapering 3 processes to ensure that Oppen was not without any pain medication while the 4 transition between medications took place. ECF No. 37-3, Ex. 3 at 4; ECF No. 37- 5 3, Ex. 3, Attachs. B-C; ECF No. 37-3, Ex. 2, Attach. A. This transition and 6 experimentation process, as mandated by the P&T Committee, did not amount to a 7 delay in Oppen’s medical treatment under Farmer. Furthermore, Oppen does not assert that Defendants delayed in 8 9 administering pain medication generally, only that they delayed in administering 10 his previously prescribed and preferred medication, Gabapentin. 5 ECF No. 9, 11 Attach. A-2. The Eighth Amendment requires that prison officials provide 12 “adequate medical care” to prison inmates, not preferred or desired medical care. 13 Gamble, 429 U.S. at 103. The record is devoid of evidence that Defendants 14 provided delayed or inadequate care due to an “unnecessary and wanton infliction 15 of pain.” Gamble, 429 U.S. at 104. To the contrary, Defendants both counseled 16 Oppen and worked with him to provide an appropriate medication to manage his 17 5 By the time Oppen filed his Motion to Voluntarily Dismiss, he states that his 18 Gabapentin prescription has been re-instated. ECF No. 35-1 at 2. The DOC 19 records allegedly indicate that the prescription was reinstated on September 9, 20 2014. ECF No. 37-3, Ex. 2 at 3. 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 12 1 pain, without any gap in treatment. ECF No. 37-3, Ex. 2, Attach. A; ECF No. 37- 2 3, Ex. 3, Attachs. B-C. 3 Third, Defendants did not deliberately interfere with Oppen’s medical 4 treatment. Oppen contends that Defendants terminated his Gabapentin prescription 5 “without notice and for no valid reason.” ECF No. 9, Attach. A-2. Additionally, 6 Oppen argues that Defendants knew the termination of his prescription would 7 increase his pain and would be detrimental to his health. Id. Finally, Oppen 8 asserts that Defendants intentionally interfered with his medication as punishment, 9 and with the intent to cause pain and suffering. Id. The Court addresses each of 10 11 these arguments in turn. The record contradicts Oppen’s contention that Defendants terminated his 12 prescription “without notice and for no valid reason.” Defendant Phillips states 13 that, on July 16, 2013, she notified Oppen that his Gabapentin prescription had 14 been denied by the P&T Committee. ECF No. 37-3, Ex. 3 at 3-4; ECF No. 37-3, 15 Ex. 3, Attach. C. Defendant Phillips then explained the reasons for denial and the 16 P&T Committee’s plan to experiment with different medications. Id. Not until 17 after this meeting did Defendant Phillips order titration of the alternative 18 medication. Id. Defendant Edwards states that he had a similar conversation with 19 Oppen on September 3, 2013, explaining the need to try alternative medication 20 because the Gabapentin renewal request had been denied. ECF No. 37-3, Ex. 2 at 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 13 1 4-5; ECF No. 37-3, Ex. 2, Attach. A. There is no evidence that either Defendant 2 terminated Gabapentin without notice or without a valid reason. Moreover, the record lacks evidence that Defendants knew the termination 3 4 of Gabapentin would increase Oppen’s pain and deteriorate his health or that 5 Defendants intended to cause pain and suffering. The culpable mental state 6 required for an actionable Eighth Amendment cruel and unusual punishment claim 7 is “wanton and unnecessary infliction of pain.” Gamble, 429 U.S. at 104. Nothing 8 in the record suggests that Defendants terminated Oppen’s prescription for any 9 reason other than that they were following the P&T Committee’s orders. ECF No. 10 37-3, Ex. 2, Attach. A; ECF No. 37-3, Ex. 3, Attachs. B-C. Furthermore, because 11 Defendants worked with Oppen to find a suitable medication to effectively manage 12 his pain, there is no basis for concluding that Defendants terminated his medication 13 with the knowledge of and intent to cause pain. Id. Though the Court may 14 speculate about the reasons that Defendants experimented with different 15 medications, absent from the record is any evidence that Defendants experimented 16 with Oppen’s medication to punish him. 17 For the reasons stated, the Court concludes that there is no genuine issue of 18 material fact as to Oppen’s Eighth Amendment claim. This claim is dismissed 19 with prejudice. 20 / / / 21 / / / ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 14 1 ii. 2 It is not clear whether Oppen intended to allege an independent Fourteenth 3 Amendment violation, or whether he cited the Fourteenth Amendment because it 4 makes the Eighth Amendment applicable to the states. In any event, there is no 5 basis for an independent Fourteenth Amendment claim. 6 Fourteenth Amendment Violation Courts apply the same legal standards to a prisoner’s claims of inadequate 7 medical care under both the Eighth and Fourteenth Amendments. Simmons v. 8 Navajo County, Ariz., 609 F.3d 1101, 1017 (9th Cir. 2010) (applying the 9 “deliberate indifference” standard to claims for inadequate medical treatment under 10 both the Eighth and Fourteenth Amendments); see also Clouthier v. County of 11 Contra Costa, 591 F.3d 1232, 1242-43 (2010) (citing Frost v. Agnos, 152 F.3d. 12 1124, 1128 (9th Cir. 1998)). However, claims under the Amendments differ in that 13 the due process clause protects pretrial detainees, while the cruel and unusual 14 punishment clause protects sentenced inmates. Bell v. Wolfish, 442 U.S. 520, 535 15 n.16 (1979) (citations omitted). Because Oppen complains of inadequate medical 16 care while a sentenced inmate at the WSP, Oppen does not have a separate claim 17 for relief under the Fourteenth Amendment. 18 19 20 There is no genuine issue of material fact as to Oppen’s Fourteenth Amendment claim. This claim is dismissed with prejudice. iii. Qualified Immunity and Injunctive and Declaratory Relief 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 15 1 Defendants argue that they are entitled to qualified immunity with respect to 2 Oppen’s claims for monetary damages because they were acting in their official 3 capacity when they treated Oppen’s GBS. However, because the Court concludes 4 that all of Oppen’s claims should be dismissed with prejudice, the Court will not 5 address the qualified immunity defense or the requests for relief. 6 B. Oppen’s Motion to Voluntarily Dismiss 7 8 9 Oppen filed a motion to voluntarily dismiss the complaint pursuant to Federal Rule of Civil Procedure 41(a) on January 5, 2015. ECF No. 35. Under Rule 41(a)(1)(A), a plaintiff may dismiss an action without a court 10 order by either filing a “notice of dismissal before the opposing party serves either 11 an answer or a motion for summary judgment” or by filing a “stipulation of 12 dismissal.” Fed. R. Civ. P. 41(a)(1)(A)(i)-(ii). The parties did not stipulate to a 13 dismissal under Rule 41(a)(1)(A)(ii). However, because Defendants filed an 14 answer to Oppen’s amended complaint on June 20, 2014, ECF No. 20, Oppen’s 15 motion to voluntarily dismiss his complaint is untimely under Rule 41(a)(1)(A)(i). 16 Alternatively, a plaintiff may seek voluntary dismissal of the action by court 17 order, on terms that the court considers proper. Fed. R. Civ. P. 41(a)(2). Unless 18 otherwise stated, the dismissal is without prejudice. Because the Court finds that 19 summary judgment is proper, the Court need not address Oppen’s Motion to 20 Voluntarily Dismiss. The suit is dismissed with prejudice. 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 16 1 Accordingly, IT IS HEREBY ORDERED: 2 1. 3 The Defendants’ Motion for Summary Judgment, ECF No. 36, is GRANTED. 4 2. 5 The Plaintiff’s Motion to Voluntarily Dismiss, ECF No. 35, is DENIED. 6 3. All pending motions are DENIED AS MOOT. 7 4. All court hearings scheduled, if any, are STRICKEN. 8 The District Court Clerk is directed to enter this Order, enter Judgment 9 10 11 accordingly, provide copies to counsel and to pro se Plaintiff, and to CLOSE this file. DATED this 12th day of March 2015. 12 13 14 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON Chief United States District Court Judge 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 17
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