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28 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

TIMOTHY A. WHITMORE,

Plaintiff,

v.

PIERCE COUNTY DEPARTMENT OF

COMMUNITY CORRECTIONS et al.,

Defendants.

Case No. C05-5265RBL

REPORT AND

RECOMMENDATION

NOTED FOR:

July 11, 2007

This Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. § 636(b)(1)(B). Before the court are two motions for summary judgment and a cross

motion for summary judgment. Defendant Pierce County moves for partial summary judgment and

seeks dismissal of the claims in paragraphs 1 to 3.6 of the second amended complaint (Dkt. # 113). 

Defendant Patricia Brixey moves for Summary Judgment as to all claims involving her (Dkt. # 126). 

Plaintiff brings a cross motion for summary judgment as to liability for inadequate mental health

treatment in his responsive pleading. (Dkt # 212). Defendants have replied (Dkt # 214 to 217). 

Plaintiff has filed a “declaration” (Dkt. # 218 and 219). This matter is now ripe for review.

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FACTS

The family of Jennifer Murphy, a minor female child, obtained an anti harassment order

preventing plaintiff from having any contact with her. Plaintiff repeatedly violated that order. In

December of 2003, Mr. Whitmore was found guilty of three counts of violating the order. Each

count is a gross misdemeanor. Plaintiff was sentenced to one year incarceration with the sentence

suspended on certain conditions. Patricia Brixey was assigned as his probation officer. Defendant

Brixey works for the Washington State Department of Corrections (Dkt. # 126, 37 to 39).

On October 30, 2004, plaintiff attended a church dance and Jennifer Murphy was present. 

Plaintiff sat beside her and spoke to her which violated the restraining order. Defendant Brixey was

informed of the violation. Defendant Brixey caused an arrest warrant to be issued. Plaintiff turned

himself in and was arrested two days after the dance, on November 1, 2004.

Plaintiff was housed in the Pierce County Jail. During intake at the jail, plaintiff was asked

about medical and mental health issues. He informed jail intake staff he had mental health issues,

including PTSD and a manic/depressive condition. He informed jail staff he was taking a number of

medications for his conditions. The same day he was arrested, jail staff contacted plaintiff’s treating

facility, the VA hospital, and obtained an “informational RX profile.” (Dkt. # 113, Affidavit of PohlY-Baca exhibit b). This document shows multiple prescriptions for Quetiapine in different amounts. 

One of these prescriptions had been discontinued. There are also prescriptions for Bupropion

(Wellbutrin), Lithium Carb., and Levothyroxine (thyroid medication) (Dkt. # 113, Affidavit of PohlY-Baca exhibit b).

Every prescription listed on the informational RX profile as “active”, except for Bupropion,

showed that plaintiff was given a 90-day supply in June of 2004, and he had not refilled the

prescriptions when they should have run out in September of 2004. Thus, jail staff concluded the

only active prescription Mr. Whitmore was taking was Bupropion (Wellbutrin). There is a jail clinic

entry dated November 2, 2004, stating that medical staff was not able to see Mr. Whitmore that day,

11/2/2004, but that Bupropion (Wellbutrin) 150 mg would be ordered for him (Dkt. # 113, Pohl-YBaca exhibit c). 

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On November 3, 2004, lab work was ordered by Juliette Pohl-Y-Baca, a P.A. In her affidavit

this medical provider states the lab work was ordered to determine if it was safe to give the plaintiff

thyroid medication, (Levothyrixine) (Dkt. # 113, attached affidavit). On November 3, 2004, jail staff

also contacted the VA hospital and received a fax that contained a small amount of additional

information. The fax contained information from an October 21, 2004, visit with Dr. Williams. 

Plaintiff was seen for twenty minutes on this date and expressed a clear desire not to take Lithium

(Dkt. # 113 Affidavit of Pohl-Y-Baca exhibit e). Other progress reports were not sent.

Chronological Mental health notes begin on November 3, 2004. Plaintiff was seen at 4:20

P.M. An appointment with a psychiatrist was going to be made. Within eight minutes of the initial

entry the mental health provider, Ann Elek, documented an attempt to contact plaintiff’s mental

health care provider at the VA hospital (Dkt. # 113 Affidavit of Ann Elek, exhibit f). Ms. Elek was

not able to reach Dr. Williams at the VA hospital; she did not leave a message. Ms. Elek

documented an attempt would be made to reach Dr. Williams “in the future.” There is nothing to

show any follow up appointment with a psychiatrist was made.

The next entry is a November 17, 2004, contact from Dr. Williams. Dr. Williams states the

plaintiff is bipolar and not under control. Dr. Williams states he wouldn’t recommend Wellbutrin at

this time and suggested Lithium be restarted with something to help plaintiff sleep. Dr. Williams

explains plaintiff was taken off Lithium when he became toxic. An appointment for plaintiff to go to

the VA hospital was made for December 14, 2004. Five days after contact was made with Dr.

Williams, on November 22, 2004, Lithium was restarted and Wellburtin was discontinued. The

November 22, 2004, entry states plaintiff had been becoming more manic and aggressive (Dkt. # 113

Affidavit of Ann Elek, exhibit f). Ms Elek explains the November 17, 2004 contact from Dr.

Williams, and states in her affidavit that Dr. Williams “returned a phone call” (Dkt. # 113, Affidavit

of Ann Elek). The record does not reflect how many attempts had been made to contact the VA or

how many attempts the VA had made to contact jail mental health staff.

On November 12, 2004, plaintiff appeared in Superior Court and was found guilty of

violating the conditions of his probation. He was sentenced to 60 days in custody with credit for 12

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days served.

While in custody at the Pierce County Jail plaintiff sent a letter to a relative of Jennifer

Murphy. The letter was for Jennifer and was delivered to her. The sending of that letter was another

violation of plaintiff’s conditions of probation. On November 18, 2004, defendant Brixey learned of

the letter. She prepared a violation report recommending plaintiff serve the remainder of the year of

incarceration from his original sentence. (Dkt. # 113 exhibits). Plaintiff was seen on this new

violation on December 3, 2004. The remaining sentence was imposed (Dkt. # 126 exhibits).

In February of 2005, plaintiff’s prescription for Lithium expired. Plaintiff had been told to

“kite” his health care providers prior to the prescription lapsing. While there was a short lapse in

Lithium treatment, there is nothing in the record to show plaintiff suffered any injury as a result of

not receiving Lithium in February of 2005. 

Defendant Brixey is named as a defendant for her part in revoking plaintiffs probation and for

testifying against plaintiff. Plaintiff also challenges conditions of confinement at the jail. The only

conditions relevant to Pierce County’s partial motion for summary judgment deal with plaintiff’s

probation hearings, the use of the grievance system, and medical/mental health treatment. Part of

plaintiff’s claim is an argument that the delusional love letter that resulted in his serving the

remainder of his one year sentence would not have been sent had he been placed on Lithium. He

alleges Pierce County Jail mental health care providers were deliberately indifferent to his condition.

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.,

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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

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).

DISCUSSION

A. Defendant Brixey.

Plaintiff sues defendant Brixey for her part in his probation hearings and alleges a Due

Process violation. The allegations in the second amended complaint that are pertinent to this

defendant are:

1. Due Process Violations during my Two parole Revocation Hearings that Lead

[sic] to Civil Rights Injuries.

1.1 The arraignment Judge Placed Extreme Medical

Conditions on My Probation on 5/2/03 that the Jail

Could Not Meet Even Though I was Still Subject to

Those Terms Until 12/3/2004.

1.2 Denied a Defense Witness that Would Have Made the

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First Hearing on 11/12/04 Moot.

1.3 The ‘Delusional Love Letter: did not violate the State

Laws for No Contact Orders. It was not Sent to a

restricted party and it had conditional release

instructions. (12/03/04)

1.4 The “Delusional Love Letter” was Never Entered into Evidence. 

(Dkt. # 30). In an addendum to the second amended complaint plaintiff adds:

1.5 The probation officer misrepresented my medication

compliance at both hearings on 11/12/04 and 12/03/04,

as shown by my VA medical record and condensed in

my Original Complaint. Plaintiff obtained this record

directly from a Privacy Act request. The record

number for that request is shown in that Original

Complaint, now referenced as Preliminary Statement

of Fact #1. I am aware that Privacy Act Requests

records meet federal rules of evidence. This probation

officer had full access to my records and had told me

she was in constant contact with my VA psychiatrist.

This effected my due process rights. The probation

officers’ statements regarding responsibility, and how

they relate to effectiveness, viability and culpability,

also apply to the jail, the jail’s medical clinic, its staff,

the medical software they use and the (medical

procedures)/(grievance procedures) they follow.

(Dkt. # 31, page 2).

Defendants move for summary judgment on the merits as well as absolute, (witness

immunity), and qualified immunity (Dkt. # 126). The court does not reach the issue of immunity in

this case.

This is a Civil Rights action brought pursuant to 42 U.S.C. § 1983. When a person confined

by the state is challenging the very fact or duration of his physical imprisonment, and the relief he

seeks will determine that he is or was entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S.

475, 500 (1973). In June 1994, the United States Supreme Court held that "[e]ven a prisoner who

has fully exhausted available state remedies has no cause of action under § 1983 unless and until

the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a

writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 487 (1994)(emphasis added). The

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court added:

Under our analysis the statute of limitations poses no difficulty while the state

challenges are being pursued, since the § 1983 claim has not yet arisen. . . . [A]

§ 1983 cause of action for damages attributable to an unconstitutional conviction or

sentence does not accrue until the conviction or sentence has been invalidated.

Id. at 489. “[T]he determination whether a challenge is properly brought under § 1983 must be

made based upon whether ‘the nature of the challenge to the procedures [is] such as necessarily to

imply the invalidity of the judgment.’ Id. If the court concludes that the challenge would necessarily

imply the invalidity of the judgment or continuing confinement, then the challenge must be brought

as a petition for a writ of habeas corpus, not under § 1983.” Butterfield v. Bail, 120 F.3d 1023,

1024 (9th Cir.1997) (quoting Edwards v. Balisok, 520 U.S. 641 (1997)).

The allegations against defendant Brixey call into question the propriety of plaintiff’s

probation revocation hearings and the findings of those two hearings. Plaintiff cannot proceed in a

civil rights action until the probation hearings have been successfully overturned in a habeas 

proceeding.

Plaintiff is no longer in custody. He cannot now file a habeas action. Under 28 U.S.C. §

2254, the district court may entertain an application for a writ of habeas corpus only from a person in

custody pursuant to the judgment of a state court. The custody requirement of the habeas corpus

statute is designed to preserve the writ as a remedy for severe restraints on individual liberty. 

Hensley v. Municipal Court, San Jose Milpitas Judicial District, 411 U.S. 345, 351 (1973). The

person must be in custody pursuant to the conviction or sentence under attack at the time the

petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Carafas v. LaVallee, 391 U.S. 234,

238 (1968).

The Ninth Circuit has held that when a person fails to file a habeas petition while in custody

and had an opportunity to file one, a civil rights action may be procedurally barred. Guerrero v

Gates, 442 F.3d 697 (9th Cir. 2006). Here, there is nothing to indicate Mr. Whitmore attempted to

challenge his probation hearings in a habeas action. He is no longer in custody, and he is barred from

bringing an action challenging the probation revocation proceedings at this point in time. 

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Accordingly, Defendant Brixey may not be sued for her part in filing probation violation charges or

testifying at the probation revocation hearings.

The court does not reach the merits or defendant claims of immunity. Defendant Brixey is

entitled to Dismissal and the motion for summary judgment should be GRANTED and she is entitled

to DISMISSAL WITH PREJUDICE.

B. Pierce County.

There are two standards of review employed by the court for this motion. 

1. Municipal or County liability. 

To establish municipal liability under § 1983, a plaintiff must show that (1) he was deprived

of a constitutional right; (2) the municipality has a policy; (3) the policy amounts to deliberate

indifference to plaintiff's constitutional rights; and (4) the policy is the moving force behind the

constitutional violation. Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992). The Supreme

Court has emphasized that the unconstitutional acts of a government agent cannot, standing alone,

lead to municipal liability; there is no respondeat superior liability under § 1983. Monell v. New

York City Dept. of Social Services, 436 U.S. 658, 692 (1978). A municipality may only be liable

where its policies are the "'moving force [behind] the constitutional violation.’" City of Canton v.

Harris, 489 U.S. 378, 389, (1989)(quoting Monell at 694). 

Here, plaintiff alleges an Eighth Amendment violation and claims County policies and

customs regarding staffing levels and medical practices led to his not receiving constitutionally

adequate mental health care. While plaintiff does not specifically identify the policy or practice at

issue, his argument survives summary judgment to the extent the court should consider the merits of

the claim. See, 3.d below.

2. The Eighth Amendment.

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)(reversed on other grounds by WMX Technologies, Inc. v. Miller, 104

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F.3d 1133, (9th Cir. 1997)).

To establish deliberate indifference, a prisoner must show that a defendant purposefully

ignored or failed to respond to the prisoner's pain or possible medical need. McGuckin, 974 F.2d at

1060; Estelle, 429 U.S. at 104. A determination of deliberate indifference involves an examination

of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's

response to that need. McGuckin, 974 F.2d at 1059. A serious medical need exists if the failure to

treat a prisoner's condition could result in further significant injury or the unnecessary and wanton

infliction of pain. Id. 

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

act on the part of the defendant. McGuckin, Id. 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). Further,

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

McGuckin, 974 F.2d at 1060; Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407

(9th Cir. 1985).

a. Partial Summary judgment.

Pierce County moves for partial summary judgment and asks that the second amended

complaint paragraph 1 to 3.6 be dismissed. These paragraphs state:

1). Due Process Violations during my Two Parole Revocations Hearings that Lead [sic]

to Civil Rights Injuries. 

1.1. The Arraignment Judge Placed Extreme Conditions on

my Probation 5/2/03 that the Jail Could Not Meet Even

Though I was Still Subject to Those Terms Until

12/3/04.

1.2. Denied a Defense Witness That Would Have Made the

First Hearing on 11/12/04 Moot.

1.3. The ‘Delusional Love Letter’ Did Not Violate State Laws for no Contact

Orders. It was not sent to a restricted party and it had conditional release

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instructions. (12/3/04).

1.4. The ‘Delusional Love Letter’ Was Never Entered into

Evidence. (12/3/04).

1.5. The probation officer misrepresented my medication

compliance at both hearings on 11/12/04 and 12/03/04,

as shown by my VA medical record and condensed in

my Original Complaint. Plaintiff obtained this record

directly from a Privacy Act request. The record

number for that request is shown in that Original

Complaint, now referenced as Preliminary Statement

of Fact #1. I am aware that Privacy Act Requests

records meet federal rules of evidence. This probation

officer had full access to my records and had told me

she was in constant contact with my VA psychiatrist.

This effected my due process rights. The probation

officers’ statements regarding responsibility, and how

they relate to effectiveness, viability and culpability,

also apply to the jail, the jail’s medical clinic, its staff,

the medical software they use and the (medical

procedures)/(grievance procedures) they follow.

2). Abuse from the Mishandling of My Prison Grievances.

2.1. Grievance Mishandling Helped to Deny Me Proper

Custodial (Mental Health) Medical Care.

2.2. Procedural Grievance Mishandling Was Used as an

Abuse to Avoid Properly Responding to My Petitions.

2.3. Grievance Mishandling Effected My Safety.

2.4. Grievance Mishandling Injured Some of My Other Civil

Rights.

3). Abuse from Inadequate Mental Health Treatment by the Jail.

3.1. Inadequate Medical Record Keeping, Screening and/or

Support Denied Me Proper Mental Health Care.

3.2. I Did Not Receive Proper Mental Health Treatment

Because of the Inadequate Medical (Mental Health)

Support Provided by Incompetent, Insufficent [sic]

and/or Under Budget Staff.

3.3. Abusive Medication Prescription renewal Procedures

that Off Loaded Work and Responsibility Onto Me as

an Inmate as a Tacit but Highly Improper Cost-Cutting

Strategy.

3.4. Unfair Additional Punishment That Occurred During A

period of Diminished Capacity Where that Diminished

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Capacity Was Created by Inadequate Mental Health

Treatment by the Jail.

3.5. Inadequate Mental Health Care that Created Emotional

Self Abuse and that Effected Personal Cognitive

Thinking, and Intellectual Property Rights.

3.6 I went for (22) days without receiving any of my antipsychotic medications, despite repeated requests.

(Dkt. # 30 and 31).

b. Probation Revocations.

With regard to plaintiff’s probation revocations, there is nothing to show Pierce County

played any part in that process other than to house plaintiff and transport him to hearings. There

simply exists no casual connection between any Pierce County action and the revocations. Further,

as noted above, plaintiff may not challenge the revocations in this action.

c. Grievances.

Claims based on Mr. Whitmore’s use of the grievance system also fail. The United States

Constitution does not mandate that prison officials allow the filing of grievances or that a prison has

a grievance system. Mann v. Adams, 855 F.2d 639 (9th Cir. 1988) Plaintiff has no constitutional

right to a grievance process and cannot demand or expect responses to grievances that are to his

satisfaction.

This does not mean the grievances may not be relevant to this action. A grievance showing

plaintiff placed mental health staff on notice of his conditions or requested treatment is relevant to

the issue of whether the mental health staff had knowledge of certain facts. 

d. Mental Health Treatment. 

Plaintiff alleges it was the policies and customs of the County Jail which led to inadequate

treatment of his mental conditions. Analysis as to whether the policies or customs amount to

deliberate indifference, and analysis of deliberate indifference in the Eighth Amendment context

requires an examination of the merits.

Here, plaintiff allegedly went 21 days, not 22 days as alleged in the complaint, without any

anti-psychotic medication. Plaintiff was arrested November 1, 2004 and Lithium was started

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November 22, 2004. This does not mean the County Jail was deliberately indifferent to plaintiff’s

mental health condition. On the day of intake, his treatment facility was contacted. Prescription

information was obtained and the Jail took steps to obtain the only medication they believed plaintiff

was actually taking Bupropion (Wellbutrin). While there were other medications listed as active,

plaintiff had not refilled his prescriptions. It was therefore reasonable to assume plaintiff was not

currently taking the prescriptions.

Medical treatment documents, submitted by Mr. Whitmore, reflect his treatment prior to

arrest. On August 20, 2004, Dr. Williams at the VA was concerned plaintiff’s system may have

become toxic because of Lithium. Mr. Whitmore was taken off that drug (Dkt. # 51, page 24). Yet

the November 1, 2004, information received by the Jail listed Lithium Carb. as an active prescription. 

Clearly there were inaccuracies in the prescription information sent on November 1, 2004.

On August 25, 2004, plaintiff’s Lithium toxicity level was dropping and Dr. Williams

indicated he would consider restarting Lithium next week (Dkt. # 51, page 23). Lithium Carb

(Eskalith) 450 mg once a day orally is still listed as an active medication on the August 25, 2004,

entry.

Mr. Whitmore was again seen on September 20, 2004. Dr. Williams recommended plaintiff

start on Lithium and “warned pt of risk of off Lith.” The medication portion of the entry still shows

plaintiff taking lithium (Dkt. # 51, page 22). Plaintiff was seen on September 21, 2004, and the entry

indicates “continues to feel that w/o lith he is doing better and is happier” The doctor found plaintiff

to be “more expansive and animated vs baseline.” (Dkt. # 51, page 21). Plaintiff was seen on

September 28, 2004 (Dkt. # 51, page 20). Dr. Williams noted plaintiff thoughts were “tangential”

and that plaintiff had trouble staying on topic and was upbeat. Dr. Williams noted plaintiff “likes

feeling off meds”. His assessment was that plaintiff was likely becoming manic. Dr. Williams

documented encouraging plaintiff to resume lithium.

The October 5, 2004 entry noted Mr. Whitmore complaining of lack of sleep. Dr. Williams

found Mr. Whitmore to have tangential thoughts and loose “assns”. Dr Williams assessment was

“Mania developing.” Again Dr. Williams attempted to get Mr. Whitmore to take lithium and noted

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“pt resistant at this time.” (Dkt. # 51, page 19).

The October 14, 2004 progress note suggests improvement, and for the first time Dr.

Williams documents plaintiff to be taking “BDN and Seroquel” (Dkt. # 51, page 18). Dr. Williams

noted plaintiff still choosing not to take lithium (Dkt. # 51, page 18). This entry was not provided to

Jail officials on November 3, 2004. The final entry before plaintiff’s arrest is dated October 21,

2004. It states plaintiff was “resistent [sic] to feed back regarding misinterpretations and insight.” 

The assessment was “BAD, some grandiosity and IOR apparent, though not clearly of a psychotic

nature.” (Dkt. # 51, page 17). The entry shows Mr. Whitmore still not wishing to take lithium. The

October 21, 2004 entry is the only entry provided to Jail officials on November 3, 2004 (Dkt. # 113

Affidavit of Pohl-Y-Baca exhibit e). 

The next contact at the VA is dated November 15, 2004. This is a phone call from plaintiff’s

mother asking if the VA will accept plaintiff for treatment instead of incarceration in the jail. This

phone call was taken by Vickie M O’Neal, ARNP. Dr. Williams acknowledged receiving the

information from Nurse O’Neal. The information provided to Dr. Williams is that Mr. Whitmore

was not getting antipsyhotic [sic] medication and was de-compensating. This entry contains hearsay. 

The information is provided as background to the court’s discussion and not as evidence to prove the

truth of the statement made by Ms. Whitmore or Nurse O’Neal.

The record reflects Dr. Williams contacting Jail officials within two days of his receipt of this

message, on November 17, 2004 (Dkt. # 113 Affidavit of Ann Elek, exhibit f). The court cannot

determine if this contact was because of Ms. Whitmore’s phone call or because of the attempts by

Jail staff to contact Dr. Williams. The Jail restarted lithium treatment and discontinued Bupropion

(Wellbutrin) at Dr. Williams request. This was done within five days of Dr. Williams contacting the

Jail. Further, the Jail medical staff made arrangements for appointments at the VA hospital for Mr.

Whitmore on December 14, 2004.

The record does not show the Jail denying, delaying, or interfering with treatment once the

Jail was able to ascertain that treatment was in fact needed and currently prescribed. To violate the

Cruel and Unusual Punishment Clause, a prison official must have a sufficiently culpable state of

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mind, that of deliberate indifference to inmate health or safety. Farmer v. Brennan, 511 U.S. 825,

834 (1994). The prison official will be liable only if the official knows of and disregards an excessive

risk to inmate health and safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. 

Id. at 837. 

The Supreme Court has held:

It is obduracy and wantonness, not inadvertence or error in good faith, that

characterizes the conduct prohibited by the Cruel and Unusual Punishments Clause,

whether that conduct occurs in connection with establishing conditions of

confinement, supplying medical needs, or restoring official control over a tumultuous

cellblock. 

Whitley v. Albers, 475 U. S. 312, 319 (1986). While there was a delay in starting Mr. Whitmore on

anti-psychotic medication, plaintiff fails to show the delay was caused by obduracy or wanton

behavior. The day of arrest the Jail sought and received some information from the VA hospital. 

The Jail acted reasonably on the information received. The only medication given to Mr. Whitmore

was the one the Jail believed he was actually taking. Further, within two days lab work was started

to determine if it was even safe to give plaintiff some of the other medications. Once Dr. Williams

spoke to Mental health Staff on November 17, 2004, issues regarding treatment were quickly

resolved. While there were delays, Mr. Whitmore fails to show any health care provider acted with a

culpable state of mind. Pierce County is entitled partial summary judgement. Claims 1.1 trough 3.6

should be DISMISSED WITH PREJUDICE.

C. Mr. Whitmore’s Cross Motion and Responsive Pleadings. 

In response to defendants motion Mr. Whitmore has moved for summary judgment (Dkt. #

211). Plaintiff also argues this court has expanded the scope of this litigation to include additional

conditions of confinement. Plaintiff is in error. When the court indicated this action involved mental

health care and general conditions of confinement, the court was referring to the conditions listed by

plaintiff in his second amended complaint, not other conditions plaintiff may wish to raise at this

point in time (Dkt. # 170).

Much of plaintiff’s argument is unsupported by the record and plaintiff draws many improper

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inferences from the record before the court. By way of example, Mr. Whitmore cites to (Dkt. 186)

for the propositions that his father and Dr. Williams called the Pierce County Jail on November 2,

2004, to ensure he received his medications. Review of the documents does not support Mr.

Whitmore’s factual assertions. The first document is an intake sheet (Dkt. # 186, encl. 1). A

notation in the margin shows the name Bruce Whitmore, the date of November 2, 2004, and a phone

number. There is nothing to indicate Bruce Whitmore actually called the jail. Further, there is

nothing to indicate the substance of any conversation Bruce Whitmore may have had with jail

personnel, whom he may have spoken with, or that any of the information he may have given was

relayed to a mental health care provider. Mr. Whitmore includes another informational sheet, (Dkt. #

186, encl. 2). He argues the sheet shows Dr. Williams contacted the Jail on November 2, 2004 to

ensure he received medications. The document in question is undated and indicates Dr. Williams

called stating plaintiff needs medication. The note is not signed, does not indicate what medication is

needed.

At most, plaintiff may show negligence in relaying information or documenting contacts. He

does not show any named defendant harbored a culpable state of mind or that the Pierce County Jail

has a policy or custom of denying or delaying prescribed medical treatment.

Mr. Whitmore cites an incident that occurred on November 2, 2004 as clear evidence he was

in immediate need of mental health treatment. On this date at nearly midnight jail staff had to remove

Mr. Whitmore from the shower area (Dkt. # 188-1, page 118). Staff believed Mr. Whitmore may be

having an “anxiety attack.” Staff contacted medical personnel and learned Mr. Whitmore was

scheduled to see medical personnel and that “medication had been ordered.” (Dkt. # 188-1, page

118). From other documentation in the record, the court knows Mr. Whitmore was seen the next

day, November 3, 2004, and within eight minutes of documenting her contact with him, Ann Elek

attempted to contact Dr. Williams. Plaintiff fails to show staff was deliberately indifferent to his

medical and mental health needs. (Dkt. # 113 Affidavit of Ann Elek, exhibit f). The court

recognizes there could have been better communications between the Pierce County Jail and the VA

hospital. Mr. Whitmore may have received anti-psychotic medication sooner had that

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communication occurred, but, the County Jail mental health and medical personnel did make

attempts to receive information. The record does not support a finding of the type of obdurate or

wanton behavior needed to support an Eighth Amendment violation.

Mr. Whitmore has cited to numerous documents he filed during this litigation (Dkt. # 211,

page 11 ¶ 67 to 72). The documents in question are statements made by third persons (Dkt. # 141,

146, 159, 174, and 190). Those filings have been objected to. The court allowed the documents to

remain in the file, but cautioned that if they were cited to, the opposing party could then raise an

objection. Pierce County has objected to the use of the documents in question. (Dkt. # 215). The

County argues the documents violate the Federal Rules of Evidence. The Counties position is well

taken. Mr. Whitmore’s affidavits containing opinions about his mental conditions from laymen

violate Fed. R. Evid. 701. The statements are not admissible

Plaintiff’s cross motion for summary judgment should be DENIED. 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 July 11, 2007, as noted in the caption. 

DATED this 14 day of June, 2007.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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