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Warner v. Curry

United States District Court, D. Montana, Missoula Division

February 20, 2019

DANNY LEE WARNER, JR., Plaintiff,
v.
CHUCK CURRY, JENNIFER ROOT, JAMES DUSING, TAMMY BOWEN, SGT. SCHUELEN, and CBM MANAGED SERVICES, Defendants.

          FINDINGS AND RECOMMNEDATION

          Jeremiah C. Lynch United States Magistrate Judge.

         Before 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.

         I. Background

         Plaintiff 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.

         On 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.

         When 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.

         Next, 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.

         Finally, 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.

         Warner's 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.

         II.

         Applicable Law - Summary Judgment Standards

         Federal 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).

         Also, 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).

         III. Discussion

         A. Warner's Verified Complaint and Sworn Brief

         In 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.)

         The 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).

         Warner 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).

         B. Dusing - Medical Care - Fourteenth Amendment Standards

         Warner 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).

         Historically, 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.

         But in 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.

         The 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 plaintiff's injuries.

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).

         Warner's 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.)

         Prior 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.)

         Dusing 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 ¶ ...


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