Lambert v. Heurtas

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA JOSHUA LAMBERT, CASE NO. 3:19-cv-05980-DGE Plaintiff, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 XLOMARA HEURTAS1 et al, 14 Defendant.

16 This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura (Dkt. No. 159) and Plaintiff Joshua Lambert’s objections to the R&R. (Dkt. No. 161.)

1 The Court notes that Defendant’s last named is properly spelled “Huertas”, that her first name is actually “Xiomara”, and that Defendant changed her last named to “Crockett” while this action was pending. (Dkt. No. 116.)

In the interests of consistency and to avoid confusion, the Court will use Defendant’s name as it appears above throughout this order.

1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 In October 2019, Plaintiff filed a pro se prisoner civil rights action under 42 U.S.C. § 3 1983 against the State of Washington, the Western State Hospital (“WSH”), and various staff and officials who work for the Department of Corrections (“DOC”), the Monroe Corrections Center, the Department of Social and Health Services (“DSHS”), and WSH. (Dkt. No. 5.)

6 Plaintiff asserts constitutional and state law claims stemming from: 1) the failure to provide medical records from Plaintiff’s time at WSH in 2012; and 2) an incident in which an unknown MCC staff member wrongly returned Plaintiff’s incoming mail without providing Plaintiff a rejection notice. (Dkt. No. 5.) Several of Plaintiff’s claims, and one of the named Defendants in this case, Natasha House, were dismissed from this action. (Dkt. Nos. 86 and 107.)

11 In July 2021, the remaining Defendants filed motions for summary judgment seeking dismissal of all outstanding claims. (Dkt. Nos. 135 and 138.)

13 On October 4, 2021, Judge Creatura issued the instant R&R, recommending that: (1) the Court find that Plaintiff’s claims against the State of Washington or agencies thereof as barred by the Eleventh Amendment; (2) Plaintiff’s First Amendment claim regarding Plaintiff’s medical record be dismissed because the Court already dismissed this claim without leave to amend (Dkt.

17 No. 86), finding that the First Amendment does not create a generalized right of access that can be applied in this context; (3) Plaintiff could not establish an equal protection violation on a theory of discrimination against a “class of one” even if he could establish that one of the Defendants failed to respond to his records request in accordance with state law, and even if Plaintiff could establish such a claim, he failed to show that either Defendant named in his Equal Protection claims (Huertas and House) acted so arbitrarily or irrationally as to give rise to a class of one claim; (4) the Court should also decline to exercise supplemental jurisdiction over Plaintiff’s state law claims related to the alleged wrongful withholding of his records; and (5) Plaintiff has not provided facts from which a trier of fact could conclude that any of the DOC defendants knew of the alleged mailroom issues and failed to correct them. (Dkt. No. 159 at 7- 17.) Judge Creatura also recommended revoking Plaintiff’s in forma pauperis (“IFP”) status for purposes of appeal. (Id. at 17-18.)

6 Plaintiff objected to the R&R (Dkt No. 161.) and Defendants responded. (Dkt. Nos. 162 and 163.)

8 II. STANDARD OF REVIEW 9 The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

13 On a motion for summary judgment, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S. Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable inferences in favor of the non-moving party. See O'Melveny & Meyers, 969 F.2d at 747, rev'd on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient showing on an essential element of her case with respect to which she has the burden of proof” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

20 While it is sufficient for the Plaintiff to establish that there is a genuine dispute concerning a material fact, once the moving party has carried its burden under Federal Rule of Civil Procedure 56 by establishing that there is no such dispute, the party opposing the motion “must do more than simply show that there is some metaphysical doubt as to the material facts.”

2 Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

3 The opposing party cannot rest solely on her pleadings but must produce significant, probative evidence in the form of affidavits, and/or admissible discovery material that would allow a reasonable jury to find in her favor. Id. at n.11; Anderson v. Liberty Lobby, Inc., 477 6 U.S. 242, 249-50 (1986). The nonmoving party “must produce at least some ‘significant probative evidence tending to support the complaint.’” (Id.); see also California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (“No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.”).

11 III. DISCUSSION 12 A. Plaintiff’s Objections.

13 Plaintiff does not object to Judge Creatura’s finding that his claims against the State of Washington and its agencies are barred by the Eleventh Amendment. Nor does Plaintiff object to Judge Creatura’s finding that his state law claims be dismissed without prejudice.

16 Plaintiff however contends that: (1) Corrections Specialist Lee Stemler, who processed his grievance regarding his wrongly returned incoming mail, admitted that it was the policy of MCC to not provide a rejection notice if mail was not “officially rejected” and that the wording of her grievance response suggests that she spoke to another party about it; (2) Plaintiff has hearsay evidence from other inmates indicating that MCC staff do not always provide a rejection notice for rejected mail; (3) the mailroom staff were not properly trained to always provide a rejection notice; (4) Defendant House is liable under a theory of supervisory liability; and (5) a reasonable jury could find that Defendant Heurtas knew that Plaintiff did not receive his medical records because he mailed multiple letters stating this, and Defendant House could have told Defendant Heurtas about them during his appeals process. (Dkt. No. 161 at 2-9.)

3 1. Objections as to Specialist Stemler 4 Defendant Stemler, a Corrections Specialist at MCC, stated that she reviewed Plaintiff’s grievance about his mail rejection and responded to it. (Dkt. 63 at 2.) Defendant Stemler stated that Plaintiff’s compact disc (“CD”) with his public records request documents was “not officially ‘rejected’ and therefore under DOC Policy . . . did not require a rejection notice to [Plaintiff].” (Dkt. No. 63-1 at 2.) Defendant Stemler states that Plaintiff did not appeal this response. (Dkt. 63 at 2.)

10 In his R&R, Judge Creatura found that even though Defendant Stemler responded to Plaintiff’s grievance, Plaintiff provided no evidence that she was part of the initial mistake that led to the rejection of his mail or that she, or any other named Defendant, affirmatively rejected his mail without notice or participated in that rejection without notice. (Dkt. No. 159 at 16.), citing Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (rejecting liability for a staff member who merely signed a grievance); see also Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (noting that a person subjects another to the deprivation of a constitutional right within the meaning of § 1983, “if he does an affirmative act, participates in another's affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.”) (internal citations omitted.)

20 Plaintiff’s contention that Stemler could have spoken to someone in the mailroom about his mail is entirely speculative, and is insufficient to create a genuine issue of material fact.

22 Plaintiff’s statement that other prisoners at the same facility have also observed that MCC staff do not always provide a rejection notice for rejected mail is insufficient to establish liability as to any of the named Defendants in this case. (See Dkt. 159 at 15-16.)

3 2. Objection as to Improper Training and Supervisory Liability 4 Supervisory liability under § 1983 is limited to persons who participated in the alleged conduct or had knowledge of such conduct and failed to act. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted) (“A supervisor is only liable for the constitutional violations of . . . subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.”). The Supreme Court has held that a lack of sufficient training may be a basis for a claim against a government official under § 1983. See Canton v. Harris, 489 U.S. 378, 388 (1989). But failure to train can only be a basis for such a claim “where the failure to train amounts to deliberate indifference to the rights of persons with whom the [officials] come into contact.” (Id.) Deliberate indifference requires that a person have knowledge of a particular risk and then recklessly disregard it. Farmer v. Brennan, 511 14 U.S. 825, 836 (1994). The failure to train must be a “deliberate” or “conscious” choice to give rise to liability. Canton, 489 U.S. at 388.

16 In his R&R, Judge Creatura found that Plaintiff had not provided facts from which a trier of fact could conclude that any of the named DOC Defendants knew of the alleged mailroom issues and failed to correct them, as required to show deliberate indifference. (Dkt. No. 159 at 15.) Plaintiff’s objections to the R&R similarly provide no facts sufficient to establish liability for any of the named Defendants.

21 3. Objection as to Defendant Heurtas 22 In his R&R, Judge Creatura found that with respect to his equal protection “class of one” claim, Plaintiff had not shown any facts tending to establish that Defendant Huertas acted arbitrarily or unreasonably with respect to his request for information. (Dkt. No. 159 at 11-12) (citing N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (“A class of one plaintiff must show that the discriminatory treatment was intentionally directed just at him, as opposed . . . to being an accident or a random act.”) (internal citations and quotation marks omitted.)).

6 Plaintiff’s objections to the R&R do not allege any intentional conduct by Defendant Heurtas with respect to his requests for information. Plaintiff’s contention that Defendant Huertas communicated with Defendant House concerning his records request is speculative, and insufficient to create a genuine issue of material fact.

10 B. IFP Status on Appeal.

11 Finding that an appeal from this matter would lack an arguable basis in law or fact, Judge Creatura recommended that Plaintiff’s IFP status should be revoked for any appeal. (Dkt. No. 159 at 17-18.) For the reasons discussed above, the Court agrees, and adopts the R&R as to this point.

15 IV. ORDER 16 The Court, having reviewed the Report and Recommendation of Chief United States Magistrate Judge J. Richard Creatura, objections to the Report and Recommendation, if any, and the remaining record, does hereby find and ORDER: 19 (1) The Court ADOPTS the Report and Recommendation (Dkt. No. 159); 20 (2) Defendants’ motions for summary judgment (Dkt. Nos. 135 and 138) are GRANTED.

21 Plaintiff’s federal claims are DISMISSED with prejudice. Plaintiff’s state law claims are DISMISSED without prejudice.

23 (3) Plaintiff’s in forma pauperis status is hereby REVOKED for any appeal.

1 (4) The Clerk is directed to send copies of this order to Plaintiff and to the Hon. J.

2 Richard Creatura.

3 Dated this 8th day of February, 2022.

A David G. Estudillo 6 United States District Judge