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 Together with his response to defendant’s motion, plaintiff filed a second “Motion for

the Appointment of Counsel” which included a “Motion for Order Directing Discovery.” Dkt.

REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD A. KIRKHAM,

Plaintiff,

v.

DELLA DOE, et al.,

Defendants.

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Case No. C05-2131-MJP-JPD

REPORT AND RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff Richard Kirkham, an inmate at the Washington State Reformatory in

Monroe, Washington, is proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983

civil rights complaint. Plaintiff asserts that several medical and classification officers at King

County Department of Adult and Juvenile Detention’s (“DAJD”) Regional Justice Center

(“RJC”) in Kent, Washington, violated his rights under the Eighth and Fourteenth

Amendments by refusing to provide him with certain wrist braces, citing DAJD policy

prohibiting the use of medical braces with metal or wooden inserts. Plaintiff’s seeks

affirmative injunctive relief in the form of his “prescribed” wrist braces against King County

and compensatory and punitive damages against each individual defendant. This matter

comes before the Court on defendants’ Motion for Summary Judgment (Dkt. No. 26).1

 In it,

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No. 32. In light of the Court’s report and recommendation, the combined motion is denied.

2

 Carpal tunnel syndrome is “a complex of symptoms resulting from compression of the

median nerve in the carpal tunnel, with pain and burning or tingling paresthesias in the fingers and

hand, sometimes extending to the elbow.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1812

(30th ed. 2003).

REPORT AND RECOMMENDATION

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defendants argue that because plaintiff failed to demonstrate “deliberate indifference” on the

part of the named officers, his Eighth and Fourteenth Amendment claims against those officers

fail as a matter of law. Further, defendants assert that the same claims against King County

must fail because the DAJD’s policy prohibiting metal or wooden brace inserts is based on

legitimate security reasons, and reasonable alternatives were provided to plaintiff. After

careful consideration of the motion, response, supporting materials, governing law and the

balance of the record, the Court recommends that defendants’ Motion for Summary Judgment

be GRANTED and plaintiff’s suit DISMISSED with prejudice. 

II. FACTS AND PROCEDURAL BACKGROUND

Plaintiff was incarcerated at the RJC from March 6, 2005, to March 16, 2006. Upon

admission, he was examined by DAJD Jail Health Services (“JHS”). At the screening

examination, plaintiff reported a history of carpal tunnel syndrome,2

 an impairment that can

be treated with wrist braces, pain medication, and/or a reduction of activities that cause pain

and numbness in the fingers, wrists, hands and elbows. Plaintiff requested pain medication

and wrist braces to replace that which he claimed had been previously prescribed by an

unidentified medical provider. Dkt. No. 27-2. On March 11, 2005, in response to plaintiff’s

medical grievance regarding pain medication, RJC’s pharmacy provided plaintiff with an

increased dosage of ibuprofen. Dkt. No. 4, Ex. B. On April 12, 2006, Dr. Kerry Ashling of

JHS examined plaintiff and provided him with “wrist braces.” Dkt. No. 27, Ex. B at 3. Dr.

Ashling also referred plaintiff to Harborview Medical Center for an electromyogram and

nerve conduction study (EMG/NCS), a procedure which assesses the extent of nerve damage

and confirms the location of nerve compression. Results from this procedure showed mild

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left carpal tunnel syndrome and no evidence of right hand problems. Dkt. 27, Ex. F at 3; see

also Dkt. No. 33 at 3, ¶ 12 (Plaintiff’s Decl.).

On May 6, 2005, plaintiff was ordered into administrative segregation by King

County Superior Court Judge Michael J. Trickey. Dkt. No. 29-2. Specifically, plaintiff was

transferred to RJC’s administrative segregation known as the “Nora East Unit.” Dkt. No. 4. 

The following day, plaintiff appeared at the Sick Call Room in the Nora East Unit,

where he explained to Nurse Janice Chapman that he had two velcro wrist

splints—presumably the braces provided by Dr. Ashling—and needed “tongue blades” to

strengthen them. Dkt. No. 27 at 3, ¶ 12 (Della Lorenzen Decl.). Nurse Glen Lirman later

approved plaintiff’s request, despite the fact that Dr. Ashling approved only the “wrist

braces,” and made no mention of metal inserts, tongues or stays. Id. On May 9, 2005,

plaintiff, still without the requested inserts, saw Nurse Catherine Ditkoff, to whom he

expressed increased pain, numbness and tingling in his hands, and explained that his velcro

wrist braces were worthless without tongue blades. Dkt. No. 27 at 3, ¶ 13. At this visit,

plaintiff was made aware that the medical record made “no mention of . . . tongue blades”

and that DAJD policy prohibited all metal and wooden brace inserts in the Nora East Unit

because such items posed a significant security risk. Dkt. No. 27 at 3, ¶ 13 and Ex. D. 

On May 10, 2005, plaintiff submitted a JHS Health Request complaining of pain in

his wrists and hands due to the lack of sufficient brace inserts. Id. at 2. Two days later,

plaintiff was examined by Dr. Charissa Fotinos, who prescribed pain medication but no

inserts, awaiting the EMG/NCS results which, as noted above, reported mild left carpal tunnel

syndrome and no evidence of right hand problems. Dkt. No. 27 at 4, ¶ 15. After once again

being denied brace inserts, plaintiff asked Judge Trickey to reconsider his order placing

plaintiff in administrative segregation. State v. Kirkham, Case No. 05-1-05960-1, Dkt. No.

75. Judge Trickey denied this request. Id., Dkt. No. 75A.

Nearly three months later, on August 16, 2005, plaintiff submitted an additional JHS

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Health Request for brace inserts. Dkt. No. 27, Ex. G. The following day plaintiff was seen

by an unidentified JHS nurse, and on August 24, 2005, was examined by Advanced

Registered Nurse Practitioner Nancy Ledgerwood VanVleck. Dkt. No. 27 at 4, ¶ 18. Both

told plaintiff that metal brace inserts were not allowed under DAJD’s policy. Id. Nurse

VanVleck told plaintiff that she would make him plaster molds in lieu of the prohibited

inserts. Dkt. No. 27, Ex. G at 3. These fourteen-inch molds were delivered to plaintiff on or

about August 24, 2005. Dkt. No. 33 at 4, ¶ 14. Four days after receiving the molds, plaintiff

submitted a JHS Health Request stating that the molds were not easing his pain, were difficult

to put on, provided little support, and cut off his circulation. Dkt. No. 27, Ex. H. Nurse

Ditkoff responded on August 30, 2005, explaining that metal or wooden brace inserts were

unavailable to prisoners or pretrial detainees in administrative segregation. Dkt. No. 27, Ex.

H. She further noted that plaintiff’s EMG/NCS exhibited mild left hand carpel tunnel

syndrome and no problems on his right hand. On September 15, 2005, Dr. Ashling, the

physician who first authorized wrist braces equipped with inserts, concluded similarly and

communicated the nearly identical information to plaintiff. Dkt. No. 27 at 4, ¶ 19.

Unsatisfied with these results, plaintiff filed his second Inmate Medical

Grievance—his first related to wrist braces—on September 27, 2005. Dkt. No. 4, Ex. C. 

Upon reviewing this grievance, Assistant Nursing Supervisor Ms. Lorenzen consulted

plaintiff’s medical chart and “concluded that the issue had been adequately dealt with by

medical providers who had seen [plaintiff].” Dkt. No. 27 at 5, ¶ 21 (Lorenzen Decl.). Ms.

Judy Hobody received plaintiff’s appeal of this decision, and upon her review, agreed with

Ms. Lorenzen. Id. A month later, on October 29, 2005, plaintiff filed a second Inmate

Medical Grievance related to wrist braces and was told to submit an additional JHS Health

Request if he was experiencing pain. Dkt. No. 4, Ex. D. Plaintiff waited twenty-eight days

to do so, noting severe pain and seeking his “prescribed braces” on November 27, 2005. Dkt.

No. 4, Ex. E. Two days later, plaintiff was seen by a JHS nurse, with a December 6, 2005

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 While plaintiff notes that this grievances has been answered, Dkt. No. 4 at 9, no party

has provided the Court with a copy of RJC’s disposition. 

REPORT AND RECOMMENDATION

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follow-up examination by Dr. Ben Sanders. Dkt. No. 27 at 5, ¶ 24. Dr. Sanders reported that

while plaintiff reported certain levels of wrist and hand pain and swelling, he did pushups

regularly, had no trouble removing his shirt, and exhibited no other physical limitations. Dkt.

No. 27, Ex. K at 4. Further, Dr. Sanders told plaintiff that braces with metal inserts were not

permitted by DAJD. Id. According to Dr. Sanders’s report, plaintiff stated that he

understood this prohibition, continued to express a worsening of his wrist and hand ailments,

but stated that he suffered from no functional limitations. Id. 

Immediately after seeing Dr. Sanders, plaintiff filed his third brace-related Inmate

Medical Grievance (fourth overall), asserting that he was “not being given adequate medical

care” and demanding his wrist brace inserts. Dkt. No. 4, Ex. F. Ms. Hobody responded on

December 12, 2005, explaining to plaintiff that he had been “seen in the medical clinic on

12/6/05 by the medical provider and medical director,” both of whom had the power to

determine if wrist braces were medically necessary. Id. Unsatisfied, plaintiff filed his fourth

Inmate Medical Grievance (fifth overall) that very same day. Dkt. No. 4, Ex. G. In it,

plaintiff argued that the RJC Medical Staff was denying metal wrist brace inserts solely on

grounds of prison security, not medical necessity. Id. Assistant Nurse Supervisor Deborah

Hansen answered by underscoring the existence of DAJD’s policy and noting that “medical

believes that you can manage without your braces for awhile.” Id. This decision was

affirmed by Ms. Hobody over plaintiff’s appeal. Id. 

During the review of plaintiff’s Inmate Medical Grievance, plaintiff filed a general

Inmate Grievance on December 11, 2005. Dkt. No. 4, Ex. H. In it, plaintiff sought specific

information regarding the DAJD policy that prevented plaintiff’s requested braces with

inserts, which he claimed were “prescribed to me by my doctor on the streets.”3

 Id. This

specific grievance appears to have gone unanswered.

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4

 Plaintiff insists he filed an JHS Health Request regarding this incident, attributing its

absence in the record to the fact that he does “not have access to [his] legal papers at this time.”

Dkt. No. 33 at 4, ¶ 16. 

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 “Kite” is a short term used for Jail Health Services Health Request form. 

REPORT AND RECOMMENDATION

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Plaintiff’s final declaration, filed subsequent to defendant’s motion for summary

judgment, asserts that “[a]t some point between 8-30-05 and 9-15-05,” his plaster molds were

confiscated during a cell search.4

 Dkt. No. 33 at 4, ¶ 16. Plaintiff further alleges that he was

again without any form of wrist brace inserts until March 9, 2006, when he was issued

wooden inserts by an unidentified physician, which were then promptly confiscated from

plaintiff “at pill line that very night.” Id. at 5, ¶ 21. This incident led to plaintiff’s sixth

Inmate Medical Grievance, which reiterated that “doctors on the streets prescribed [him such]

braces,” and the RJC’s denial of the inserts rendered his braces worthless. Dkt. No. 33, Ex.

A. Nurse Hobody responded to plaintiff’s grievance by restating the DAJD policy regarding

metal brace inserts, but also stated that if plaintiff’s “inserts were wooden, tongue blades,” he

could “kite” a JHS Nurse for additional inserts.5

 

Plaintiff was moved from the Nora East Unit to RJC’s general population in March

2006, and was eventually transferred to the Washington State Reformatory in Monroe,

Washington. At present, he appears to be wearing wrist braces with some form of non-metal

insert, although the record is not entirely clear on this point.

III. SUMMARY JUDGMENT STANDARD

“Claims lacking merit may be dealt with through summary judgment” under Rule 56 of

the Federal Rules of Civil Procedure. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). 

Summary judgment “shall be entered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). An issue of fact is “genuine” if it constitutes evidence

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with which “a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). That genuine issue of fact is “material” if it

“might effect the outcome of the suit under the governing law.” Id.

When applying these standards, the Court must view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party. United States v.

Johnson Controls, Inc., 457 F.3d 1009, 1013 (9th Cir. 2006). The moving party can carry its

initial burden by producing affirmative evidence that negates an essential element of the

nonmovant’s case, or by establishing that the nonmovant lacks the quantum of evidence

needed to satisfy his burden of persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz

Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 

Once this has occurred, the procedural burden shifts to the party opposing summary

judgment, who must go beyond the pleadings and affirmatively establish a genuine issue on the

merits of the case. Fed. R. Civ. P. 56(e). The nonmovant must do more than simply deny the

veracity of everything offered or show a mere “metaphysical doubt as to the material facts.”

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

existence of a scintilla of evidence is likewise insufficient to create a genuine factual dispute. 

Anderson, 477 U.S. at 252. To avoid summary judgment, the nonmoving party must, in the

words of the Rule, “set forth specific facts showing that there is a genuine issue for trial.” Fed.

R. Civ. P. 56(e). The nonmoving party’s failure of proof “renders all other facts immaterial,”

creating no genuine issue of fact and thereby entitling the moving party to the summary

judgment it sought. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

IV. ANALYSIS

“It is undisputed that the treatment a prisoner receives in prison and the conditions

under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v.

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 The Eighth Amendment’s prohibition of “cruel and unusual punishments” applies only

after conviction and sentence. Graham v. Connor, 490 U.S. 386, 393 & n.6 (1989). Because

plaintiff was a pretrial detainee when he was subject the alleged acts and omissions of the named

defendants, his cruel and unusual punishment claims arise not under the Eighth Amendment, but

rather the Due Process Clause of the Fourteenth Amendment. Oregon Advocacy Center v. Mink,

322 F.3d 1101, 1120 (9th Cir. 2003). This fact, however, does not significantly alter the Court’s

analysis, for “the due process clause imposes, at a minimum , the same duty the Eighth

Amendment imposes: persons in custody ha[ve] the established right to not have officials remain

deliberately indifferent to their serious medical needs.” Gibson v. County of Washoe, 290 F.3d

1175, 1187 (9th Cir. 2002) (emphasis added) (internal quotation omitted). 

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McKinney, 509 U.S. 25, 31 (1993).6

 The government has an obligation under the Eighth and

 Fourteenth Amendments “to provide medical care for those whom it punishes by

incarceration.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). However, not

every breach of that duty is of constitutional proportions. “In order to violate the Eighth

Amendment proscription against cruel and unusual punishment, there must be a deliberate

indifference to serious medical needs of prisoners.” Hutchinson v. United States, 838 F.2d 390,

394 (9th Cir. 1988) (internal quotation omitted). The requisite indifference occurs when a

prison official denies, delays, or intentionally interferes with medical treatment due a prisoner

or pretrial detainee. Lopez, 203 F.3d at 1131. Mere negligence in diagnosing or treating a

medical condition is insufficient; a showing of deliberate indifference is required. Id.

To meet the deliberate indifference requirement under the Eighth or Fourteenth

Amendment, “a prisoner must satisfy both the objective and subjective components of a

two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). “[T]he plaintiff must

first show a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s condition

could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d

1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104

F.3d 1133 (9th Cir. 1997) (en banc)). Second, the plaintiff must show that the defendant’s

response to the plaintiff’s serious medical needs was “deliberately indifferent,” i.e., that the

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defendant knew of but disregarded an excessive risk to those needs. Toguchi v. Chung, 391

F.3d 1051, 1057 (9th Cir. 2004); Farmer, 511 U.S. at 837. “If a [prison official] should have

been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment,

no matter how severe the risk.” Toguchi, 391 F.3d at 1057 (internal quotation omitted). That

said, a plaintiff may rely on circumstantial evidence to prove a prison official’s knowledge of

the risk; the very obviousness of the risk may be sufficient to establish knowledge. Wallis v.

Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

A. Plaintiff’s Medical Needs Were Sufficiently Serious

The “routine discomfort” that results from incarceration does not constitute a serious

medical need. Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Rather, such a

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. (internal quotation omitted). 

“Examples of serious medical needs include ‘[t]he existence of an injury that a reasonable

doctor or patient would find important and worthy of comment or treatment; the presence of a

medical condition that significantly affects an individual’s daily activities; or the existence of

chronic and substantial pain.’” Lopez, 203 F.3d at 1131 (quoting McGuckin, 974 F.2d at

1059-60).

In the present case, while defendants argue that plaintiff received constitutionally

sufficient medical care, they do not argue that plaintiff’s needs regarding his carpel tunnel

syndrome were not serious. Instead, the defendants present the circular argument that “if

physicians or medical staff had believed that [plaintiff] was seriously harmed . . . by the DAJD

decision to prohibit him from using metal braces or wooden tongue blades for security reasons,

they would have taken steps to have DAJD’s decision reviewed.” Dkt. No. 26 at 10. Further,

defendants state that “[c]are below the contemporary standards of decency in this case would

have been to provide plaintiff with no alternative, such as plaster molds, to his metal or

wooden wrist braces.” Id. 

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However, the undisputed evidence of record reflects that plaintiff was left with “no

alternative,” as that term is defined by the defendants, for at least 109 days—May 7, 2005, to

August 24, 2005, the latter date being the first time plaintiff was issued the plaster molds. Dkt.

No. 33 at 4, ¶ 14. Furthermore, it is undisputed that plaintiff suffered from mild left carpel

tunnel syndrome at all times pertinent to this suit. Dkt. No. 27, Ex. F at 3 (EMG/NCS results). 

The record reflects that this condition not only affected plaintiff’s daily activities, but was also

the kind of injury that RJC medical staff found noteworthy and for which they prescribed

treatment. See, e.g., Dkt. No. 27, Ex. B at 3 (Dr. Ashling’s notes); Dkt. No. 27, Ex. E at 4 &

Ex. H (Nurse Ditkoff’s notes); Dkt. No. 27, Ex. F at 2-3 (Dr. Meekins’s notes). Plaintiff has

thus met step one of the deliberate indifference test. 

B. Defendants Were Not Deliberately Indifferent to Plaintiff’s Serious Medical

Needs

To complete a showing of deliberate indifference to serious medical needs, a prisoner

must show more than mere negligence, or even gross negligence, on the part of the defendant. 

See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Wood v. Housewright, 900 F.2d 1332, 1334

(9th Cir. 1990). Prison officials are deliberately indifferent to a prisoner’s serious medical

needs only when they “deny, delay or intentionally interfere” with his prescribed medical

treatment. Wood, 900 F.2d at 1334; Lopez, 203 F.3d at 1132. In doing so, it must be shown

that the prison official knew of but disregarded an excessive risk to plaintiff's serious medical

needs. Farmer, 511 U.S. at 837. “This is not an easy test for plaintiffs to satisfy.” Hallett,

296 F.3d at 745.

Pointing primarily to the report of Dr. Ashling, plaintiff argues that he received

inadequate medical care because he was not provided with his “prescribed” and “required”

braces with inserts, which plaintiff asserts were prohibited by an unconstitutional DAJD’s

policy. Dkt. No. 32 at 3-4. However, this is not a case where a prisoner was deprived of

“previously prescribed medical treatment,” see Lopez, 203 F.3d at 1132, or where prison

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employees “intentionally den[ied] or delay[ed] access to medical care” or otherwise refused

to follow a doctor’s instructions Estelle, 429 U.S. at 104-05. Rather, plaintiff simply asserts

that the medical care provided was inconsistent with the conclusions of certain doctors and

failed to meet his medical needs. See, e.g., Dkt. No. 33 at 5-6, ¶ 23 (Plaintiff’s Decl.). 

However, the record does not reflect a prescription of wrist braces with metal or wooden

inserts; Dr. Ashling appears to have been the lone physician to have prescribed and provided

the wrist braces plaintiff desired and, judging by Dr. Ashling’s report and plaintiff’s actions

the following day, these braces were not equipped with inserts. See Dkt. No. 27, Ex. B at 3

(Dr. Ashling’s report); Dkt. No. 27 at 3, ¶ 13 (noting that plaintiff requested tongue blades for

his wrist braces almost immediately after seeing Dr. Ashling). Further evidence in the record

supports the conclusion that wrist braces were not medically necessary. See, e.g., Dkt. No. 4,

Ex. G (Assistant Nurse Supervisor Deborah Hansen’s concluding that “medical believes that

you can manage without your braces”); Dkt. No. 27 at 5, ¶ 21 (Lorenzen Decl.) (concluding

that the tongue blade issue “had been adequately dealt with by medical providers who had

seen [plaintiff]”); Dkt. No. 27, Ex. K at 4 (Dr. Sanders’ conclusions regarding plaintiff’s

minimal functional limitations). Plaintiff has failed to provide evidence that RJC’s medical

staff believed that metal or wooden brace inserts were essential to treat his injury.

To the extent plaintiff points to a necessary but phantom “prescription,” takes issue

with the quality and efficacy of his treatment, or establishes a difference of medical opinion,

he raises questions under tort law, not the Constitution. Sanchez v. Vild, 891 F.2d 240, 242

(9th Cir. 1989). Mere disagreement as to a particular course of treatment does not amount to

deliberate indifference, and thus does not state a claim under § 1983. Sanchez, 891 F.2d at

242; see also Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (difference of opinion

between physician and prisoner concerning appropriate course of treatment does not amount

to deliberate indifference). The constructive concession, made in hindsight, that defendants

may have permitted care “below the contemporary standards of decency” for 109 days does

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not change this fact for two independent reasons: (1) plaintiff was not deprived of his wrist

braces during this time, only certain unprescribed inserts and plaster molds; and (2) such a

statement at most states a claim for professional negligence, not constitutional deprivation

under § 1983. See Jett, 439 F.3d at 1096 (“[A]n inadvertent [or negligent] failure to provide

adequate medical care alone does not state a claim under § 1983.”) (internal quotation

omitted) (second alteration by Jett court).

 Furthermore, even if couched as a delay-in-treatment allegation, plaintiff’s argument

fails as a matter of law. While the plaintiff insists he was due a specific type of treatment—i.e.,

metal wrist brace inserts—he does not allege that medical examination and care were

unconstitutionally delayed. Indeed, the undisputed evidence of record establishes that plaintiff

was seen no less than ten times by no less than nine RJC medical personnel during the relevant

time period. Again, that one (or even some) of these doctors and nurses agreed with plaintiff’s

or his street doctor’s assessment of his ailments does not convert a garden-variety negligence

action into a constitutional claim of deliberate indifference. Moreover, assuming for the sake

of argument that the delay in this case was constitutionally significant, plaintiff has failed to

show that this delay led to further injury, as required by Ninth Circuit law. McGuckin, 974

F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

1985) (per curiam). In sum, the deprivations alleged do not reach constitutional dimensions.

C. King County’s Policy Is Based on Legitimate Security Reasons

Finally, the Court notes that plaintiff’s requested metal or wooden brace inserts posed

a significant risk to the security of plaintiff, his co-inmates, correctional officers, and prison

operations as a whole. Although prisoners and pretrial detainees do not shed their

constitutional rights at the jailhouse door, “maintaining institutional security and preserving

internal order and discipline are essential goals that may require limitation or retraction of the

retained constitutional rights.” Bell v. Wolfish, 441 U.S. 520, 546 (1979); see also United

States v. Howard, 463 F.3d 999, 1006 (9th Cir. 2006) (similar). Prison officials must therefore

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REPORT AND RECOMMENDATION

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“be free to take appropriate action to ensure the safety of inmates and corrections personnel

and to prevent escape or unauthorized entry.” Bell, 441 U.S. at 547. For this reason, King

County had the right to prohibit inmates from possessing metal or wooden tongue blades as

such item may be used as weapons or implements of escape. See Howard, 463 F.3d at 1006

(“Corrections officials must produce at least some evidence that their policies are based on

legitimate penological justifications.”). DAJD’s policy did not interfere with plaintiff’s

constitutional rights not only for the above-explained reasons, but also because reasonable

and efficacious alternatives—wrist braces without inserts and/or plaster molds—were

available to plaintiff. For these reasons, King County cannot be held liable under § 1983.

V. CONCLUSION

The defendants were not deliberately indifferent to plaintiff’s serious medical needs of

which they were aware. Moreover, because DAJD’s policy prohibiting metal and wooden

brace inserts is based on legitimate security reasons and provides for adequate alternatives, it

does not offend the Due Process Clause of the Fourteenth Amendment. Accordingly, the

Court recommends that defendants’ Motion for Summary Judgment (Dkt. No. 26) be

GRANTED, and plaintiff’s § 1983 complaint (Dkt. No. 4) DISMISSED with prejudice. A

proposed order accompanies this Report and Recommendation. 

DATED this 28th day of November, 2006.AJAMES P. DONOHUE

United States Magistrate Judge 

Case 2:05-cv-02131-MJP Document 36 Filed 11/28/06 Page 13 of 13