1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

TROY DEIMERLY,

Plaintiff,

v.

DAVE JOHNSON, et al.,

Defendants.

Case No. C06-5002 RBL/KLS

REPORT AND

RECOMMENDATION

NOTED FOR:

December 15, 2006

This civil rights action has been referred to United States Magistrate Judge Karen L.

Strombom pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Plaintiff claims that he

was denied proper medical care while he was incarcerated at the Grays Harbor County Jail. Presently

before the Court is the motion for summary judgment of Defendant Kathleen Alves. (Dkt. # 44). 

Defendant Alves argues that she provided medical treatment to Plaintiff consistent with the relevant

standard of care. Plaintiff has not responded to the motion. Under Local Rule 7 (b)(2) failure to file

papers in opposition to a motion may be deemed as an admission the motion has merit. Having

reviewed Defendant Alves’ motion, the Court recommends that it be granted and Plaintiff’s claims

against her be dismissed with prejudice.

Case 3:06-cv-05002-RBL Document 62 Filed 11/20/06 Page 1 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 2

I. FACTS

Plaintiff does not dispute Defendant Alves’ facts which are as follows:

Defendant Alves is the President of Healthcare Delivery Systems, that provided the

contracted medical services for the Grays Harbor County Jail during Plaintiff’s incarceration. 

Defendant Alves holds the designation of Advanced Registered Nurse Practitioner (ARNP). She

personally provided care and treatment to Plaintiff during his incarceration at Grays Harbor County

Jail between October 4, 2004 and approximately June 23, 2005. 

Plaintiff was booked into the Grays Harbor County Jail on October 04, 2004. He did not

bring any medications with him. Plaintiff requested medications on October 13, 2004 and was

 provided the following medications on October 15, 2004: 

Gabitril 2mg 2 x day 

Risperdal 2 mg 1.5 tabs at night 

Phenytoin 100mg 4 tabs at night 

Seroquel 200 mg 2 x day 

Clonazepam 1 mg 3 x day 

Celexa 20 mg daily

Plaintiff was subsequently admitted to Western State Hospital on October 25, 2004 and was

released November 17, 2004.

On March 15, 2005, Defendant Alves saw Plaintiff during sick call at the Grays Harbor

County Jail for a rash and treated him with hydrocortisone cream. Plaintiff was noted to be quite

drowsy and admitted to sleeping during the day. 

On April 06, 2005, Defendant Alves ordered laboratory tests to monitor his chronic

medications. 

On April 13, 2005, Defendant Alves saw Plaintiff for medication issues. Plaintiff told her that

he was feeling over medicated and that he had not been taking the prescribed doses. Plaintiff’s

Dilantin level was high and the dose was reduced with an order to recheck the level in one week. The

Seroquel day dose was stopped and the entire dose was rescheduled for evening. The Clonazepam

was discontinued with Plaintiff’s agreement as he was not taking it as ordered. Defendant Alves

referred Plaintiff to Jan Kemmerer, the psychiatric ARNP, for further evaluation. 

Case 3:06-cv-05002-RBL Document 62 Filed 11/20/06 Page 2 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 3

On April 20, 2005, Defendant Alves saw Plaintiff for a lab draw and a complaint of genital

lesions. He voiced no complaints about medication or sleep problems. Plaintiff was again referred to

Ms. Kemmerer. 

On April 27, 2005, Defendant Alves saw Plaintiff for dental pain. Plaintiff stated a desire to

resume the Clonazepam for anxiety. He also requested Adderal for ADD/ADHD issues.

Additionally, Plaintiff requested Valtrex for persistent genital lesions. He was treated with Valtrex

for presumptive recurrent herpetic lesions. He was prescribed and given Strattera for ADD/ADHD

history and anxiety. 

On April 27, 2005 Defendant Alves returned a phone call from the jail related to Plaintiff. She

was told that Plaintiff had been in an altercation with another inmate and was complaining of nose

pain. Defendant Alves advised application of ice, observation, and to call if there was significant

bleeding or other concerns. Plaintiff was seen in sick call April 29, 2005 and diagnosed with a nasal

contusion with no treatment required. 

Plaintiff was sent back to Western State Hospital on May 02, 2005, and was returned to

Grays Harbor County Jail on May 10, 2005 on the following medications: 

Gabitril 2 mg 2 x daily 

Risperdal 4 mg at night 

Dilantin 330 mg at night 

Celexa 20 mg daily

On May 13, 2005, Defendant Alves saw Plaintiff at his request. Plaintiff had not been

restarted on the Clonazepam at Western State Hospital and wanted it prescribed for him. He stated

that he sued King County in the past due to medical issues. Plaintiff also wanted to go back on the

Strattera as he felt that it helped him. Defendant Alves declined to give him the Clonazepam as he

was on appropriate medications for his anxiety. Defendant Alves pointed out that Western State

Hospital had not deemed it a necessary therapy either. Defendant Alves did prescribe the Strattera

for him and referred him to Jan Kemmerer. Plaintiff was also given Benadryl for itching. 

Plaintiff requested a refill of his Valtrex on May 21, 2005 and Defendant Alves refilled it on

May 26, 2005. 

Case 3:06-cv-05002-RBL Document 62 Filed 11/20/06 Page 3 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 4

On June 08, 2005, Plaintiff saw Mr. Deimerly in sick call – he was in no acute distress and

Defendant Alves referred him to Jan Kemmerer. 

On June 15, 2005, Defendant Alves saw Plaintiff in sick call for cellulites of his nose. He was

treated with Bactrim DS 2x daily for seven days and Tylenol 1 gram 3 x daily for pain for seven days.

At that time he reported that the Strattera was not helping his anxiety and lack of focus. He was

referred to Jan Kemmerer. 

On June 22, 2005, Defendant Alves saw Plaintiff to recheck the infection in his nose. It was

well healed. 

On June 23, 2005, Plaintiff was seen by Jan Kemmerer, ARNP. She prescribed an increased

dose of Risperdal and weaning off the Seroquel. She did not prescribe Clonazepam. Plaintiff was

transferred to prison later that week. 

II. DISCUSSION

A. 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

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,

Case 3:06-cv-05002-RBL Document 62 Filed 11/20/06 Page 4 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 5

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. Plaintiff Has Failed to State a Claim Under the Eighth Amendment

To state a claim under 42 U.S.C. § 1983: (1) the defendant must be a person acting

under color of state law; and (2) his conduct must have deprived the plaintiff of rights, privileges, or

immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527,

535 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).

Implicit in the second element is a third element of causation. See Mt. Healthy City School Dist. v.

Doyle, 429 U.S. 274, 286-87 (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir. 1980), cert.

denied, 449 U.S. 875 (1980). When a plaintiff fails to allege or establish one of the three elements,

his complaint must be dismissed. 

In the present case, Plaintiff claims that Defendant Alves denied or delayed medical care to

him while he was incarcerated at Grays Harbor County Jail. Accordingly, his claims are analyzed

under the Fourteenth Amendment Due Process Clause, rather than the Eighth Amendment. Bell v.

Wolfish, 441 U.S. 520, 535 n. 16 (1979). However, because pretrial detainees’ rights under the

Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment the same

standards are applied. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1198); Redman v. County of

Case 3:06-cv-05002-RBL Document 62 Filed 11/20/06 Page 5 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 6

San Diego, 942 F.2d 1435, 1441 (9th Cir. 1991). The Eighth Amendment requires prison officials to

take reasonable measures to guarantee the health and safety of inmates. Hudson v. Palmer, 468 U.S.

517, 526-27 (1984); Farmer v. Brennan, 511 U.S. 825, 834 (1994). An inmate claiming an Eighth

Amendment violation relating to health care must show that the prison officials acted with deliberate

indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The plaintiff

must prove both an objective and a subjective component. Hudson v. McMillan, 503 U.S. 1 (1992);

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). First, the alleged deprivation must be,

objectively, “sufficiently serious.” Farmer, 511 U.S. at 834. A “serious medical need” exists if the

failure to treat a prisoner’s condition would result in further significant injury or the unnecessary and

wanton infliction of pain contrary to contemporary standards of decency. Helling v. McKinney, 509

U.S. 25, 32-35 (1993); McGuckin, 974 F.2d at 1059. Second, the prison officials must be

deliberately indifferent to the risk of harm to the inmate. Farmer, 511 U.S. at 834. An official is

deliberately indifferent to a serious medical need if the official “knows of and disregards an excessive

risk to inmate health or safety.” Id. at 837. Deliberate indifference requires more culpability than

ordinary lack of due care for a prisoner's health. Id. at 835. In assessing whether the official acted

with deliberate indifference, a court's inquiry must focus on what the prison official actually

perceived, not what the official should have known. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th

Cir. 1995). If one of the components is not established, the court need not inquire as to the existence

of the other. Helling, 509 U.S. 25. 

Prison authorities have “wide discretion” in the medical treatment afforded prisoners. Stiltner

v. Rhay, 371 F.2d 420, 421 (9th Cir. 1971), cert. denied, 387 U.S. 922 (1972). To prevail on an

Eighth Amendment medical claim, the plaintiff must “show that the course of treatment the doctors

chose was medically unacceptable under the circumstances . . . and the plaintiff must show that they

chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v.

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), cert. denied, 519 U.S. 1029. A claim of mere

negligence or harassment related to medical problems is not enough to make out a violation of the

Eighth Amendment. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Simple malpractice,

Case 3:06-cv-05002-RBL Document 62 Filed 11/20/06 Page 6 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 7

or even gross negligence, does not constitute deliberate indifference. McGuckin, 974 F.2d at 1059.

Similarly, a difference of opinion between a prisoner-patient and prison medical authorities regarding

what treatment is proper and necessary does not give rise to a § 1983 claim. Franklin, 662 F.2d at

1344; Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). If a plaintiff is claiming a delay of

medical care, then he must demonstrate that the delay was actually harmful. Berry v. Bunnell, 39 F.3d

1056, 1057 (9th Cir. 1994) (per curiam); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). 

In this case, Plaintiff alleges that Defendant Alves failed to continue with the “regime of

psychotropic medications which had been prescribed by the . . . psychiatrist at Western State Hospital.” 

(Dkt. 9, p. 5). After viewing all of the summary judgment evidence in the light most favorable to the

Plaintiff, the Court must conclude that Plaintiff’s constitutional claim fails as a matter of law. 

Plaintiff has provided no medical evidence to show how he was harmed by not being provided with

certain psychotropic medications or how any alleged damage or pain was proximately caused by any

deliberate medical indifference of Defendant Alves. Indeed, Plaintiff has not identified which

medications were denied him. At best, Plaintiff appears to be complaining that he was not treated in

a manner that he wished to be treated, which is insufficient as a matter of law to give rise to a claim

under Section 1983. 

Conversely, the undisputed record reflects that during an incarceration of approximately

seven months, the Plaintiff was seen approximately twelve times for medical treatment and

medications. The record indicates that Plaintiff was provided with appropriate prescribed psychotropic

medication by Defendant Alves during his incarceration at Grays Harbor County Jail. Accordingly,

Defendant Alves’ motion for summary judgment should be granted.

III. CONCLUSION

For the reasons stated above the court should GRANT Defendant Alves’ motion for summary

judgment and dismiss Plaintiff’s claims against her with prejudice. 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

Case 3:06-cv-05002-RBL Document 62 Filed 11/20/06 Page 7 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 8

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

December 15, 2006, as noted in the caption. 

DATED this 17th day of November, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:06-cv-05002-RBL Document 62 Filed 11/20/06 Page 8 of 8