GEORGE O. MITCHELL, Plaintiff-Appellant,
STATE OF WASHINGTON; KELLY CUNNINGHAM, SCC Superintendent; DR. THOMAS BELL, Defendants-Appellees
and Submitted April 6, 2015, Pasadena, California
from the United States District Court for the Western
District of Washington. DC No. 3:12 cv-05403 BHS. Benjamin H.
Settle, District Judge, Presiding.
panel affirmed the district court's summary judgment in
an action brought pursuant to 42 U.S.C. § 1983 in which
plaintiff, who is civilly committed as a sexually violent
predator, alleged that defendants' refusal to treat his
Hepatitis C with interferon and ribavirin violated his right
to reasonable medical care and that the consideration of race
in the denial of this treatment violated the Equal Protection
panel first held the district court erred by finding that the
damages claims against the state defendants were barred by
the Eleventh Amendment. The panel held that even though
plaintiff testified in his deposition that he was suing
defendants only in their official capacities, his amended
complaint clearly stated that he was suing defendants in both
their official and personal capacities for damages and
injunctive relief and the record demonstrated that plaintiff,
acting pro se, did not understand the legal significance of
bringing claims against defendants in their official versus
panel held that plaintiff's claims for injunctive and
declaratory relief were moot because he received the
requested treatment. The panel next found that plaintiff had
failed to show any evidence that defendants' decision not
to administer interferon and ribavirin was unreasonable and
failed to meet the appropriate standard of care.
plaintiff's equal protection claim, the panel held that
plaintiff set forth specific facts plausibly suggesting that
defendant Dr. Bell employed an explicit racial classification
sufficient to trigger strict scrutiny when he determined not
to recommend plaintiff for interferon and ribavirin
treatment. The panel held that Dr. Bell failed to meet his
burden under the strict scrutiny because he failed to offer
any compelling justification for the racial
classification, let alone a justification that was narrowly
tailored; instead, arguing only that plaintiff's equal
protection claim failed because race was not the "
primary" consideration in denying treatment. The panel
nevertheless held that Dr. Bell was entitled to qualified
immunity because it was not clearly established that a
reasonable official would understand that the use of
race-related success-of-treatment data as a factor in a
medical treatment decision would be unconstitutional.
in part and concurring in the judgment, Judge Clifton agreed
with most of the specific conclusions of the majority
opinion, including that the claims were not barred by the
Eleventh Amendment, that the claims for injunctive and
declaratory relief were moot, and that Dr. Bell was entitled
to qualified immunity. Judge Clifton would not take up the
question of whether the Constitution forbids a doctor from
considering credible scientific evidence that individuals of
a certain race respond poorly to a particular treatment.
Nevertheless if required to do so, he would conclude that,
under the circumstance, plaintiff's rights were not
Chemerinsky, Peter Afrasiabi, Kathryn Marie Davis, Appellate
Litigation Clinic, University of California, Irvine School of
Law; Tommy Du (argued), Catriona Lavery (argued), Law
Students, Irvine, California, for Plaintiff-Appellant.
W. Ferguson, Attorney General of Washington, Grace C.S.
O'Connor (argued) and Christopher Lanese, Assistant
Attorneys General, Olympia, Washington, for
Dorothy W. Nelson, A. Wallace Tashima, and Richard R.
Clifton, Circuit Judges.
Wallace Tashima, Circuit Judge.
George Mitchell brought this action against
Defendants-Appellees (" Defendants" ) for
injunctive relief and damages under 42 U.S.C. § 1983,
alleging constitutionally inadequate medical care and a
violation of the Equal Protection Clause. The district court
granted summary judgment in favor of Defendants, and Mitchell
timely appealed. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
Mitchell, a fifty-nine year old African-American male, has
been civilly committed as a sexually violent predator to the
Special Commitment Center (" SCC" ) by the State of
Washington since June 27, 2003. See In re Det.
of Mitchell, 160 Wn.App. 669, 249 P.3d 662 (Wash. Ct.
approximately December 14, 2000, prior to his arrival at the
SCC, Mitchell was diagnosed with Hepatitis C. From
approximately 2003 to 2005, Mitchell met with one of
SCC's consulting physicians, Dr. W. Michael Priebe, of
the Tacoma Disease Center. As a consulting specialist, Dr.
Priebe was limited to recommending certain courses of
treatment, and did not have the authority to order treatment.
In mid-2005, Dr. Priebe discussed treatment options with
Mitchell. One of the treatment options discussed was the
administration of interferon and ribavirin. Because
interferon and ribavirin are weight-based medications
(meaning dosage depends on the patient's weight),
Mitchell agreed to postpone this type of treatment until he
could lose weight.
of 2009, Mitchell met with Dr. Thomas Bell, then the Medical
Supervisor of SCC, to discuss his liver biopsy results and
review treatment options. During that meeting, based on a
belief that his condition was deteriorating, Mitchell
requested interferon and ribavirin treatment. Dr. Bell
informed Mitchell that the interferon and ribavirin treatment
for his genotype had been largely unsuccessful on
African-American males. In addition, after reviewing
Mitchell's liver biopsy results, Dr. Bell told Mitchell
that his Hepatitis C had not progressed to a level that would
justify the harsh side effects of the requested treatment.
Based on these factors, Dr. Bell did not recommend Mitchell
for interferon and ribavirin treatment. In November of 2012,
Mitchell was placed on interferon and ribavirin. The
treatment was ultimately unsuccessful.
commenced this action on August 23, 2012, against Defendants
Dr. Bell, Kelly Cunningham, Superintendent of SCC, and the
State of Washington. Mitchell sued Dr. Bell and Cunningham
in their individual and official capacities. Mitchell alleged
that Dr. Bell's refusal to refer him for interferon and
ribavirin treatment violated the Fourteenth Amendment for two
reasons: (1) the denial of interferon and
ribavirin treatment violated his right to reasonable medical
care; and (2) the consideration of race in the denial of
treatment violated the Equal Protection Clause.
referral of this case for a report and recommendation ("
R& R" ), the Magistrate Judge recommended that
Defendants' motion for summary judgment be granted. The
Magistrate Judge first ruled that all claims against the
State of Washington were barred by the Eleventh Amendment.
Second, she ruled that because Mitchell testified in his
deposition that is he suing Cunningham and Dr. Bell in their
official capacities, all claims for damages against them are
barred by the Eleventh Amendment. The Magistrate Judge then
excluded a declaration proffered by Mitchell because it was
unsigned and because the declarant lacked sufficient
qualifications and personal knowledge. She next ruled that
Defendants are entitled to qualified immunity because
Mitchell failed to assert a constitutional violation.
Specifically, the Magistrate Judge ruled that Mitchell
presented no evidence that Dr. Bell's treatment of
Mitchell did not meet the appropriate standard of care for a
medical provider, and that Mitchell's equal protection
claim failed because he had not shown that Defendants acted
with the intent or purpose to discriminate.
District Court adopted the Magistrate Judge's R& R and
entered judgment against Mitchell.
Court reviews a district court's grant of summary
judgment de novo. Vasquez v. Cty. of L.A., 349 F.3d
634, 639 (9th Cir. 2003). The Court must " determine
whether, viewing the evidence in the light most favorable to
the nonmoving party, there are any genuine issues of material
fact and whether the district court correctly applied the
relevant substantive law." Lopez v. Smith, 203
F.3d 1122, 1131 (9th Cir. 2000) (en banc) (citing Balint
v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en
Eleventh Amendment Immunity
Eleventh Amendment bars claims for damages against a state
official acting in his or her official capacity. Pena v.
Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam).
It does not, however, bar claims for damages against state
officials in their personal capacities. Id.
Moreover, when a plaintiff sues a defendant for damages,
there is a presumption that he is seeking damages against the
defendant in his personal capacity. Romano v. Bible,
169 F.3d 1182, 1186 (9th Cir. 1999).
First Amended Complaint clearly states that he is suing
Cunningham and Dr. Bell in both their official and personal
capacities for damages and injunctive relief. The district
court, however, relying on Mitchell's deposition
testimony that he is suing Cunningham and Dr. Bell
only in their official capacities, held that all
claims for damages against Cunningham and Dr. Bell should be
dismissed. But the record clearly demonstrates that Mitchell,
who was acting pro se, did not understand the legal
significance between bringing claims against Dr. Bell and
Cunningham in their official versus personal capacities.
Further, in questioning Mitchell, Defendants' attorney
failed adequately to explain the significance of the
difference, even after Mitchell signified that he did not
understand the legal jargon and would need assistance. As a
result, we conclude that Mitchell is not bound by his
deposition testimony and Mitchell's damages claims
against Defendants in their individual capacities are not
barred by the Eleventh Amendment. To hold otherwise would
" threaten to ensnare parties who may have simply been
confused during their deposition testimony and may encourage
gamesmanship by opposing attorneys." Van Asdale v.
Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009).