United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMNEDATION
Jeremiah C. Lynch United States Magistrate Judge.
the Court are Defendants Chuck Curry, Jennifer Root, Sgt.
Schuelen, James Dusing, and CBM Managed Services'
separate Fed.R.Civ.P. 56 motions for summary judgment. For
the reasons discussed, the Court recommends Curry, Root, and
CBM Managed Services' motions be granted as to Plaintiff
Danny Warner's claims for inadequate food and nutrition.
And the Court recommends Dusing's motion be denied, and
that Root and Schuelen's motion be denied with respect to
Plaintiff Danny Warner's claim of unlawful punishment.
Danny Warner, appearing pro se, was incarcerated at the
Flathead County Detention Center (“FCDC”) in
Kalispell, Montana in 2016 and 2017. Defendant Chuck Curry
was the Sheriff of Flathead County, and Defendants Jennifer
Root and Sgt. Schuelen were officers employed to work at
FCDC. Defendant James Dusing is a physician who was
contracted to provide medical services for inmates at the
facility, and Defendant CBM Managed Services was contracted
to provide food to inmates.
November 23, 2016, law enforcement officers arrested Warner
and placed him in custody at FCDC. He was held in custody
awaiting resolution of pending criminal charges.
Warner arrived at FCDC he had neck, back and hip injuries.
Warner complains that Dusing failed to provide adequate
medical care for his injuries as required under the
Fourteenth Amendment to the United States Constitution.
Warner asserts the food he received at FCDC caused him health
problems for him. Specifically, he claims he suffered from
Celiac disease and needed a gluten-free diet. He states he
did not always receive a gluten-free meal when he was at
FCDC, and that the meals he did receive were not
nutritionally adequate. Warner alleges CBM Managed Services,
Root and Curry were all aware of the food problems, but they
were deliberately indifferent to his health.
Warner alleges Schuelen and Root placed him in punitive
isolation several times without due process of law. He
asserts the incidents constituted unlawful punishment imposed
against him as a pretrial detainee.
claims are advanced under authority of 42 U.S.C. § 1983,
thereby invoking the federal question jurisdiction of this
Court pursuant to 28 U.S.C. § 1331.
Law - Summary Judgment Standards
Rule of Civil Procedure 56(a) entitles a party to summary
judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” A movant may satisfy this
burden where the documentary evidence produced by the parties
permits only one conclusion. Anderson v. Liberty Lobby
Inc., 477 U.S. 242, 251 (1986). Once the moving party
has satisfied his burden, he is entitled to summary judgment
if the non-moving party fails to designate by affidavits,
depositions, answers to interrogatories, or admissions on
file, “specific facts showing that there is a genuine
issue for trial.” Celotex Corp. v. Cattrett,
477 U.S. 317, 324 (1986). Finally, in deciding a motion for
summary judgment, the Court views the evidence in the light
most favorable to the non-moving party and draws all
justifiable inferences in the non-moving party's favor.
Anderson, 477 U.S. at 255; Betz v. Trainer
Wortham & Co., Inc., 504 F.3d 1017, 1020-21
(9th Cir. 2007).
because Warner is proceeding pro se the Court must construe
his documents liberally and give them “the benefit of
any doubt” with respect to Defendants' summary
judgment motions. Frost v. Symington, 197 F.3d 348,
352 (9th Cir. 1999). See also Erickson v.
Pardus 551 U.S. 89, 94 (2007).
Warner's Verified Complaint and Sworn
response to Defendants' summary judgment motions, Warner
relies upon facts set forth in his complaint. He signed a
verification on his complaint in which he affirmatively
stated, “under penalty of perjury that the foregoing is
true and correct.” (Doc. 2 at 8.)
Court finds Warner's verification satisfies the
requirements for a valid, unsworn declaration set forth in 28
U.S.C. § 1746. See Schroeder v. McDonald, 55
F.3d 454, 460 n.10 (9th Cir. 1995). Thus, the
verified complaint constitutes an affidavit, and the Court
must consider appropriate facts therein to the extent the
facts are admissible and asserted upon Warner's personal
knowledge, as opposed to his mere information and belief.
Id. at 460; Jones v. Blanas, 393 F.3d 918,
923 (9th Cir. 2004).
also signed a similar oath in his brief that he filed in
opposition to Defendants' summary judgment motions. He
states “[h]aving been duly sworn upon my oath I Danny
Lee Warner Jr do declare that the foregoing is true to the
best of my knowledge and correct to the best of my
ability.” (Doc. 77 at 10.) And his signature is
“subscribed and sworn to” before a notary.
(Id.) Thus, Warner's brief qualifies as an
affidavit, and the Court will consider the factual matters
asserted therein to the extent they are admissible and within
his personal knowledge. See United States v.
Yoshida, 727 F.2d 822, 823 (9th Cir. 1983)
(identifying elements of a valid affidavit), and Cord v.
Smith, 370 F.2d 418, 420 n.1 (9th Cir. 1966)
(requiring that affidavit must be sworn to before a notary).
Dusing - Medical Care - Fourteenth Amendment
was incarcerated at FCDC as a pretrial detainee at the time
Dusing provided medical treatment to him. Thus, Warner's
rights relative to conditions of his confinement and medical
care are addressed under the due process clause of the
Fourteenth Amendment to the United States Constitution.
Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120
(9th Cir. 2003).
a pretrial detainee's claim challenging an adverse
condition of his confinement under the Fourteenth Amendment
was governed by the analysis under the Eighth Amendment
applicable to a comparable claim brought by a convicted
inmate. See Gordon v. County of Orange, 888 F.3d
1118, 1122 (9th Cir. 2018). Consequently, a
pretrial detainee was required to establish that a defendant
acted with a sufficiently culpable state of mind which was
analyzed under a subjective deliberate indifference standard.
Id. A pretrial detainee had to establish the
defendant acted with an actual, subjective awareness of a
particular risk of harm to the detainee, and knowingly
disregarded the risk. Id. at 1123 n.1.
2015, the Supreme Court's decision in Kingsley v.
Hendrickson, __ U.S. __, 135 S.Ct. 2466 (2015) changed
the calculus of the analysis applicable to a pretrial
detainee's claims under the Fourteenth Amendment. In
Kingsley, the Supreme Court concluded that the
Eighth Amendment's subjective standard is not applicable
to a pretrial detainee's claim for excessive force under
the Fourteenth Amendment. Kingsley, 135 S.Ct. at
2472-73. Instead, the courts must analyze the defendant's
conduct under an objective standard and consider whether a
defendant's acts or omissions were objectively
unreasonable in view of all the facts and circumstances of
the particular situation. Id. at 2473.
Ninth Circuit applies Kingsley's objective
standard to a pretrial detainee's claims. See Castro
v. County of Los Angeles, 833 F.3d 1060 (9th
Cir. 2016). And in Gordon, the Ninth Circuit
established the necessary elements of a pretrial
detainee's claim asserting he was not provided adequate
medical care. The detainee must demonstrate that:
(i) the defendant made an intentional decision with respect
to the conditions under which the plaintiff was confined;
(ii) those conditions put the plaintiff at substantial risk
of suffering serious harm; (iii) the defendant did not take
reasonable available measures to abate that risk, even though
a reasonable official in the circumstances would have
appreciated the high degree of risk involved-making the
consequences of the defendant's conduct obvious; and (iv)
by not taking such measures, the defendant caused the
Gordon, at 1125. The third element requires that the
evidence demonstrate defendant's conduct was objectively
unreasonable under all the facts and circumstances.
Gordon, at 1125. The standard requires a plaintiff
to “prove more than negligence but less than subjective
intent - something akin to reckless disregard.”
Id. (citation and quotation omitted).
verified complaint provides necessary facts relevant to
Dusing's summary judgment motion. Warner states he had
injuries to his neck, back and hip when he arrived at FCDC
November 23, 2016, and he informed Dusing of his injuries and
pain. Warner states he was in “a tremendous amount of
pain[.]” (Doc. 2 at ¶ 14; Doc. 64-1 at 4 of 7.)
to his incarceration at FCDC Warner had been prescribed
Gabapentin and Tramadol for his injuries. (Doc. 2 at
¶¶ 12-13.) Dusing did not continue Warner on those
medications, and instead he prescribed a muscle relaxer which
Warner states exacerbated his condition and his pain. (Doc. 2
at ¶¶ 13-15.) It was not until May 12, 2017, that
Dusing eventually prescribed Tramadol for Warner. (Doc. 77 at
11.) But shortly thereafter Dusing reduced Warner's
dosage of Tramadol, and as a result he was again in pain.
(Doc. 2 at ¶ 21.)
filed his affidavit in support of his summary judgment motion
in which he authenticates Warner's medical records
reflecting treatment Dusing provided to Warner. Dusing's
affidavit, however, states only that “true and accurate
copies of the medical records reflecting the services I
provided to Danny Lee Warner, Jr.” are attached to the
affidavit. (Doc. 63 at ¶ ...