Silverman v. Ivers

Background

Jacob S. Silverman, a California inmate proceeding without a lawyer, brought this civil-rights action under 42 U.S.C. § 1983 against staff at the Humboldt County Correctional Facility. The court previously found that his second amended complaint stated a claim under the Eighth Amendment for deliberate indifference to serious medical needs. Defendants Dean Flint and Duane Christian later moved to dismiss the claims against them for insufficient allegations. The court granted that motion but allowed Silverman to amend.

Silverman then filed an amendment and several other motions. He alleged that Flint and Christian were connected to the denial or delay of medical care for his axonal ulnar neuropathy, nerve damage, and carpal tunnel syndrome. He relied in part on grievances concerning pain medication, braces, specialist referrals, and treatment.

Motion to amend claims against Flint and Christian

The court explained that a pretrial detainee’s inadequate-medical-care claim arises under the Fourteenth Amendment and is evaluated under an objective deliberate-indifference standard. The plaintiff must allege that the defendant intentionally made a decision about confinement conditions, that those conditions created a substantial risk of serious harm, that the defendant failed to take reasonable available measures to reduce the risk, and that this failure caused injury.

The court found that Silverman’s amendment mostly recited legal authorities and made conclusory statements. It did not provide facts explaining what authority Flint and Christian had, how they improperly used that authority, which subordinates they failed to supervise, what unlawful actions those subordinates took, or how Christian allegedly misused the grievance process.

The court also concluded that the grievances did not establish deliberate indifference. The responses indicated that specialist appointments and sick-call visits were being pursued. The grievances showed that medical staff discontinued Tylenol after Silverman repeatedly refused medication, and that Flint told him he could obtain Tylenol through the commissary. The court found no indication that Flint and Christian were involved in the medication-discontinuation decision or that they obstructed necessary treatment. Because Silverman had already received an opportunity to amend, the court denied the motion to amend, dismissed the claims against Flint and Christian for failure to state a claim, and directed the clerk to terminate them from the action.

Motion to add McKenzie and Lyell as defendants

Silverman sought to add Melissa McKenzie, identified as the neurologist who diagnosed his conditions, and Robert Lyell, an outside orthopedic specialist. He alleged that McKenzie failed to make a referral for treatment or pain relief and argued that both doctors could be sued because they were contractors paid by the state or county.

The court denied the motion as futile. It explained that a private person’s conduct can be treated as state action for purposes of § 1983 only when there is a sufficiently close connection between the state and the challenged conduct. The court found no allegations that the state significantly encouraged McKenzie’s or Lyell’s actions, that they jointly acted with the state, or that they had authority to change Silverman’s confinement conditions. The medical records instead indicated that they independently evaluated Silverman at the jail medical staff’s request. The court therefore concluded that Silverman could not state a § 1983 claim against them on the allegations presented.

Motion to add conspiracy and retaliation claims

Silverman sought to add conspiracy and retaliation claims against Iver, Lien, Burelson, Barnhart, and Lyell. The court denied the motion. It held that Silverman’s statements that the defendants had all participated in certain conduct were conclusory and did not allege a meeting of the minds or common unlawful agreement, as required for a civil conspiracy claim.

The court also found the retaliation allegations insufficient. A prison-retaliation claim requires allegations that a state actor took adverse action because of protected conduct, that the action chilled the prisoner’s First Amendment rights, and that it did not reasonably advance a legitimate correctional goal. The court found that Silverman did not allege that the defendants’ actions chilled his exercise of First Amendment rights or failed to advance a legitimate correctional goal. The motion to add both types of claims was therefore denied for failure to state a claim.

Motion to strike affidavit

Silverman moved to strike the affidavit of John Levin, arguing under Federal Rule of Evidence 702 that Levin was not a neurology specialist and therefore could not provide expert testimony. The defendants said Levin was offering an opinion as a qualified physician about the care provided by jail medical staff, not an opinion about the neurologist’s or orthopedic specialist’s assessment.

The court agreed with the defendants and denied the motion to strike as without merit. It found that Levin’s testimony concerned medical expertise beyond the common knowledge of an average person and would assist the fact-finder in understanding the evidence or deciding a disputed fact.

Extension of time and disposition

Silverman requested more time to oppose the summary-judgment motion filed by Iver, Lien, Dr. Michael Burleson, and April Barnhart because he was facing a transfer to a hospital for medical care. The court granted the extension, treated Silverman’s September 25, 2019 opposition as timely, directed the defendants to file a reply within 14 days after the order was filed, and stated that the summary-judgment motion would be considered submitted when the reply was due.

The order therefore denied the three motions to amend, denied the motion to strike Dr. Levin’s affidavit, and granted the motion for an extension of time. It did not decide the pending summary-judgment motion on its merits.