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28 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RONALD KEAL et al. ,

Plaintiffs,

v.

THE STATE OF WASHINGTON, et al.,

Defendants.

Case No. C05-5737RJB

REPORT AND RECOMMENDATION

REGARDING DEFENDANT

PHYLLIS ELLIS

NOTED FOR:

February 16, 2007

This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge

pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR

3, and MJR 4. Before the court is a motion for summary judgment filed by defendant Phyllis Ellis (Dkt. #

201). Plaintiff has responded (Dkt. # 217). Defendant Ellis has replied (Dkt. # 220). The motion is ripe

for review.

FACTS

These facts are undisputed. On March 30, 2005 at approximately 6:00 A.M. Ms. Mallogue

was working “medicine call” at the Clallam Bay Corrections Center Intensive Management Unit

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(Dkt. # 193, page 2, Affidavit of Heidi Mallogue). Mr. Keal requested medicine for what he

described as a migraine headache.

According to Ms. Mallogue, Mr. Keal had not followed the proper procedure for obtaining

treatment at the 6:00 A.M. visit and she told him she was not able to provide the non prescription

item right then. In her affidavit she states she told him she would make a note of his request and he

would receive treatment at approximately noon (Dkt. # 193).

At 10:50 that same day Ms. Mallogue received a call for assistance from the Intensive

Management Unit, IMU (Dkt. # 193, page 2 Affidavit of Heidi Mallogue). She arrived at the IMU

within minutes of the call to find Mr. Keal “on the floor in a supine position.” Pursuant to policy,

security staff secured Mr. Keal with hand and leg restraints prior to his receiving medical treatment. 

Defendant Mallogue performed an initial examination which included checking Mr. Keal’s heart rate,

checking his pulse at the carotid artery, checking for breathing and his rate of breathing, and placing

a soft backed book under Mr. Keal’s head until a pillow arrived (Dkt. # 193, page 3, Affidavit of

Heidi Mallogue). The assertions in Ms. Mallogue’s affidavit are supported by a video tape of the

incident submitted to the court by plaintiffs (Dkt. # 148, exhibit 8, on file in clerk’s office).

Ms. Mallogue states Mr. Keal was non responsive to questions or “verbal stimulation.” (Dkt.

# 193, page 3). Ms Mallogue noted Mr. Keal had slight spontaneous shoulder movement and

occasional twitching movement in his hands. Id. Information from the Correctional Officers who

had observed Mr. Keal before Ms. Mallogue arrived informed her that Mr. Keal had been twitching

rapidly, arching his back and that he had been “exhibiting a series of rapid rigid upper body motion.” 

Id. 

Ms. Mallogue’s assessment of the situation was that Mr. Keal was not suffering from grand

mal seizure, but she called for a more experienced medical provider, defendant Ellis, and a gurney to

transport Mr. Keal to the clinic. Defendant Ellis repeated the examination performed by Defendant

Mallogue and formed the opinion that Mr. Keal was not suffering from a seizure. Mr. Keal was still

transported to the clinic for observation. During transport to the clinic Mr. Keal began spitting and a

spit sock was placed on him for safety and security reasons. Follow up assessment by several

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medical providers, and the testimony of an expert witness, is that Mr. Keal did not suffer from a

seizure and was faking his seizure or suffering a “pseudo seizure.” (Dkt. # 195, 196, and 197).

Mr. Keal brings an action for violation of his Eighth Amendment right to be free from cruel

and unusual punishment. Plaintiff claims the medical treatment provided by Ms. Ellis for his alleged

seizure was inadequate because she allowed custody staff to place him in restraints, and she did not

turn him to his side to prevent the possibility of his choking on vomit (Dkt. # 217, page3). Further

he alleges the treatment was inadequate because Ms. Mallogue did not place a pillow under his head

and allowed a spit sock to be placed on him during transport to the clinic (Dkt. # 217, page 3). 

Plaintiff also alleges he received inadequate medical care from this defendant for a number of other

conditions, but, he provides no details either in his documentation or exhibits showing that defendant

Ellis treated him other than on March 30, 2005 (Dkt. # 217 exhibits).

Mr. Keal also alleges defendant Ellis is liable for other medical treatment. Mr. Keal has failed

to come forward with any specific evidence showing this defendant treated him (Dkt. # 217 and 218,

exhibits). 

DISCUSSION

A. The standard of review.

Pursuant to Fed. R. Civ. P. 56 (c), the court may grant summary judgment “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that

there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56 (c). 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 a claim on which the

nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). 

There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a

rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative evidence, not

simply “some metaphysical doubt.”). See also Fed. R. Civ. P. 56 (e). Conversely, a genuine dispute

over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring

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a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 253 (1986); T. W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626,

630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court must

consider the substantive evidentiary burden that the nonmoving party must meet at trial, e.g. the

preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Service Inc.,

809 F.2d at 630. The court must resolve any factual dispute or controversy in favor of the nonmoving

party only when the facts specifically attested by the party contradicts facts specifically attested by the

moving party. Id.

The nonmoving party may not merely state that it will discredit the moving party’s evidence at

trial, in hopes that evidence can be developed at trial to support the claim. T.W. Elec. Service Inc., 809

F.2d at 630. (relying on Anderson, supra). Conclusory, nonspecific statements in affidavits are not

sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S.

871, 888-89 (1990).

B. The Eighth Amendment standard for medical care.

The government has an obligation to provide medical care for prisoners, and the Eighth

Amendment proscribes deliberate indifference to their serious medical needs. Estelle v. Gamble, 429

U.S. 97 (1976), Such conduct is actionable under 42 U.S.C. § 1983. McGuckin v. Smith, 974 F.2d

1050, 1059 (9th Cir. 1992).

In order to establish deliberate indifference there must first be a purposeful act or failure to

act on the part of the defendant. McGuckin, at 1060. A difference of opinion between a prisoner

and medical authorities regarding proper medical treatment does not give rise to a section 1983

claim. Franklin v. Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). Mere

negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's

Eighth Amendment rights. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Second,

a prisoner can make no claim for deliberate medical indifference unless the denial was harmful. 

McGuckin, at 1060; Shapely v. Nevada Bd. of State Prison Commissioner’s, 766 F.2d 404, 407 (9th

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Cir. 1985).

An Eighth Amendment Claim has two components. The first component is the objective

element that the deprivation was serious. Young v. Quinlan, 960 F.2d 351, 359 (3rd Cir. 1992). 

The second is a subjective element--that a prison official acted with deliberate indifference. Young,

960 F.2d at 359-60. 

To constitute deliberate indifference, an official must know of and disregard an excessive risk

to inmate health or safety; the official must be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists; and the official must also draw the inference. 

Farmer v. Brennan, 511 U.S. 825 (1994). 

C. Analysis.

1. Alleged seizure March 30, 2005.

Mr. Keal’s claims regarding use of restraints and the spit shield or spit sock being placed over

his head fails. Mr. Keal fails to show the placement of these items on him caused him any harm or

injury. Given medical personnel’s concern or opinion that Mr. Keal may have been faking his

seizure, the application of restraints prior to having non security personnel come in close contact

with him was reasonable. Mr. Keal fails to show placing a spit shield or spit sock on him violated

any right or duty owed to him given the allegation that Mr. Keal began spitting during his transport

to the clinic. Mr. Keal has not denied or contradicted this allegation with any competent evidence. 

Even if the court assumes the placement of restraints and spit sock to be sufficiently serious

to state a claim, Plaintiffs fail to show that any prison official drew an inference that there was

substantial risk to the plaintiff. In fact, the medical providers and their expert all express the opinion

that Mr. Keal was not having a grand mal seizure. Ms Ellis examined Mr. Keal and memorialized her

exam and diagnosis. In her notes she stated:

EXAM: Inmate was on the day room floor. He displayed no

incontinence. Individual had not vomited. He showed

no sign of ‘foaming’ from mouth or gaging. He

remained extremely rigid. When asked a question or

when I tried to check his pupils (open his tight shut

eyes), he would rigidly posture and then wildly flail his

body in an arched position for 15 to 20 seconds, and

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then would return to a quiet state with mild shaking.

Mr. Keal was bought to Medical on a litter. He quickly

stopped shaking ( within 10 to 15 minutes). He was

then placed in an observation room (which he walked

to without difficulty).

Individual was fully alert; showed no sign of confusion

and walked back to IMU without difficulty.

Diagnosis: Psuedoseizure/malingering.

(Dkt. # 196).

Defendants’ medical expert, Dr. Doherty, states “it is not likely that Ronald Keal suffered a

‘grand mal seizure’ or set of seizures on March 30, 2005.” (Dkt. # 195). Dr. Doherty states his

opinion that the duration of the activity was too long, the fall to the ground was too “slow,” there

was no noticeable “tonic” or “clonic” phase to Mr. Keal’s alleged seizure, no loss of continence, no

tongue biting, and the movements depicted on the video were not what he would expect from grand

mal seizure (Dkt. # 195). Dr. Doherty also notes that defendant Mallogue assessed Mr. Keal using

the “ABC’s” Airway, Breathing, Circulation. Thus, Mr. Keals’ concerns of choking on vomit were

addressed in the initial examination and his airway was clear. 

Dr. Doherty emphasized it was rare for grand mal seizure to last more than 90 seconds and

Mr. Keals’ event lasted for longer than 10 minutes (Dkt. # 195). In his opinion it is “extremely

common that psychogenic events and psychological nonepiliptiform events or malingering events

occur for period [sic] longer than 90 seconds.” (Dkt. # 195).

Defendant John Joseph evaluated Mr. Keal at the clinic after he was transported and his

medical diagnosis was that Mr. Keal was “faking a seizure” and had “feigned medical problems.”

(Dkt. # 197. His plan of action was to infract Mr. Keal for his behavior (Dkt. # 197). 

Mr. Keal has presented the court with two unsworn statements. One statement is from a

Lucia Wakeen, and one is from Margie Messinger. Both persons claim to be in the medical field

with a number of years experience (Dkt. # 218, exhibits 5). Defendant objects to these exhibits (Dkt.

# 220, page 2). The basis for the objection is that the statements are not statements under oath. 

The court has considered the Curnow case and the holding of the court is that any evidence

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allowed by Fed. R. Civ. P 56 (c) may be considered. Curnow v. Ridgecrest Police, 952 F. 2d 321,

323 (9th Cir. 1991). Fed. R. Civ. P 56 (c) allows the court to consider “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any.” Defendant

Ellis is correct in stating that unsworn statements cannot be considered. The statements of Lucia

Wakeen and Margie Messinger will not be considered. Even if the statements were properly before

the court it would not change the outcome. Neither person addresses nor considers that the

providers on scene evaluated Mr. Keal and determined he was not having a grand mal seizure. 

Further, Mr. Keal has come forward with no evidence to show any injury.

The court notes Mr. Keal has also presented several witness statements from inmates who

allegedly observed the incident on March 30, 2005 (Dkt. # 217, Exhibit 3). These statements are

sworn to under penalty of perjury. Each of these witnesses claims Mr. Keal vomited during the time

he was in the day room on the floor, prior to Defendant Mallogue’s arrival, however review of the

video tape does not show Mr. Keal vomiting. Further close observation of Mr. Keal’s clothing, a

white jumpsuit, does not show any noticeable vomit present on the outfit.

The court is not free to weigh the evidence. However, even assuming Mr. Keal did vomit the

record discloses Defendant Mallogue checked the airway and breathing rate and found Mr. Keal was

not in distress. Further, defendant Ellis states in her examination notes, that she did not observe Mr.

Keal to have vomited. Thus, she was not deliberately indifferent under the standard set forth in

Farmer. Farmer v. Brennan, 511 U.S. 825 (1994).

While Mr. Keal alleges defendant Ellis was deliberately indifferent in the medical treatment

she provided to him for other conditions, he has placed no evidence before the court to show that

defendant Ellis ever provided any other treatment to him. The object of the summary judgment

provision “is not to replace conclusory allegations of the complaint or answer with conclusory

allegations of an affidavit.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (199)) Cf.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

In the motion for summary judgment, defendant Ellis specifically informed plaintiff her

motion for summary judgment was based in part on plaintiff’s failure to come forth with “specific,

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significant probative evidence” to demonstrate that a material issue of fact exists as to the essential

elements of these additional negligence claims (Dkt. # 201, page 4). Plaintiff has failed to present any

evidence showing that defendant Ellis treated him for any other condition. This defendant is entitled

to summary judgment as a matter of law. A proposed order accompanies this Report and

Recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil

Procedure, the parties shall have ten (10) days from service of this Report to file written objections. 

See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for

purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed

by Rule 72(b), the clerk is directed to set the matter for consideration on February 16 2007, as

noted in the caption. 

DATED this 8 day of January, 2007.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge 

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