Jobe v. Alaska Department of Corrections Health Services et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JEFFREY CLYDE JOBE,
Plaintiff,
v.
ALASKA DEPARTMENT OF
CORRECTIONS HEALTH SERVICES,
et al.,
Defendants.
Case No. 3:20-cv-00245-SLG-KFR
REPORT AND RECOMMENDATION RE MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment (hereinafter “Motion”)
filed by Defendants Alaska Department of Corrections Health Services, Certified
Physician’s Assistant (“PA-C”) Yolanda Garroutte;1 Dr. Martha Moore, M.D.; and
Superintendent Chris Lyou.2 Plaintiff Jeffrey Clyde Jobe, proceeding pro se, did not
file a response to the Motion. Because Plaintiff has not produced any evidence to
rebut Defendants’ showing that no genuine dispute of material fact exists and that
they are entitled to judgment as a matter of law, the Court recommends that the
Motion be GRANTED and that Plaintiff’s claims be DISMISSED with prejudice.
I. 	BACKGROUND
Plaintiff is a former inmate who was housed at Anchorage Correctional
Complex (“ACC”) while a federal criminal case against him was pending.3 In
1 Plaintiff’s Complaint refers to this Defendant as PA-C Cotton; Defendants advise that this
is PA-C Garroutte’s former name. Doc. 40 at 1.
2 Docs. 39; 40.
3 Doc. 1 at 1; see also Doc. 25. The Court takes judicial notice that Plaintiff was a defendant
in a federal criminal case in the District of Alaska. See United States v. Jobe, No. 3:18-cr-
00081-SLG; U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244,
248 (9th Cir. 1992) (noting that a court “may take notice of proceedings in other courts,
both within and without the federal judicial system, if those proceedings have a direct
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 1 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
2
September 2020, Plaintiff filed a Complaint against Defendants pursuant to 42 U.S.C.
§ 1983.4 In the Complaint, Plaintiff asserts three claims. First, Plaintiff claims that
on or about October 8, 2018, PA-C Garroutte violated his constitutional right to
adequate medical care by refusing to prescribe him CBD oil to treat his longstanding
seizure disorder and by prescribing him Lamictal instead.5 Plaintiff alleges that this
medication caused him to suffer more seizures as well as various “severe[,] nearly
fatal” side effects.6 Second, Plaintiff claims that on or about March 20, 2019, Dr.
Moore violated his constitutional right to be free from cruel and unusual punishment
by discontinuing his Lamictal prescription and placing him in administrative
segregation even though he “had done nothing wrong.”7 And third, Plaintiff claims
that on or about October 8, 2019, Superintendent Lyou violated his constitutional
right to adequate medical care during an incident where Plaintiff was allegedly
moved to ACC’s medical unit, placed in a bed with blankets that were covered in
someone else’s blood, and denied a shower after Plaintiff realized what had
happened.8
In November 2023, Defendants filed the Motion, requesting summary
judgment on Plaintiff’s three claims.9 Defendants contend that they are entitled to
summary judgment because there is no dispute of material fact that: (1) PA-C
Garroutte did not act with deliberate indifference as to Plaintiff’s medical needs
because her prescription decisions were objectively reasonable and did not actually
cause Plaintiff harm or place him at a substantial risk of serious harm; (2) Dr. Moore
did not act with deliberate indifference as to Plaintiff’s medical needs or conditions
relation to matters at issue” (citation and internal quotation marks omitted)). Plaintiff was
indicted in that case in July 2018 and sentenced in November 2019. Jobe, No. 3:18-cr-00081-
SLG, Docs. 1; 50.
4 Doc. 1.
5 Id. at 3.
6 Id.
7 Id. at 4.
8 Id. at 5.
9 Doc. 39.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 2 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
3
of confinement because she did not personally discontinue Plaintiff’s Lamictal
prescription or assign him to administrative segregation; and (3) Superintendent
Lyou did not act with deliberate indifference as to Plaintiff’s conditions of
confinement because he was not personally involved in the bloody blankets
incident.10 In the alternative, Defendants maintain that summary judgment is
appropriate on qualified immunity grounds.11 In support of the Motion, Defendants
filed records documenting Plaintiff’s bed assignment history at ACC, Plaintiff’s
medical history, and Plaintiff’s admission to ACC’s medical segregation unit.12
Defendants also filed declarations by Superintendent Lyou and by expert witness Dr.
Robert Lawrence, Chief Medical Officer for the Department of Corrections (“DOC”).13
Plaintiff did not file a response to the Motion within 21 days of service, as the
Local Civil Rules for the District of Alaska require.14 Because Plaintiff is representing
himself in this matter, the Court issued an order giving notice to Plaintiff that failure
to file an opposition to the Motion could lead to entry of summary judgment against
him, which would result in dismissal of this action.15 The Court gave Plaintiff 21
additional days from the date of that order to respond to the Motion.16 Plaintiff did
not file a response by that deadline. As of the date of this Report and
Recommendation, Plaintiff still had not filed any response to the Motion.
II. 	LEGAL STANDARD
Summary judgment is appropriate when a “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
10 Doc. 40 at 16–21, 25–32, 36–38.
11 Id. at 21–25, 33–35, 38–41.
12 Docs. 40-1; 40-2; 40-3.
13 Docs. 41; 42.
14 See L. Civ. R. 7.2(b)(1).
15 Doc. 45. See Rand v. Rowland, 154 F.3d 952, 953 (9th Cir. 1998) (affirming “the continued
viability and application of the ‘pro se prisoner fair notice’ requirement of Rule 56 . . . [as]
adopted in Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988)).
16 Id. at 2.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 3 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
4
matter of law.”17 A fact is “material” if it might affect the outcome of the case under
the governing law.18 A dispute is “genuine” as to a material fact if there is sufficient
evidence for a reasonable fact-finder to decide in favor of the nonmoving party.19 In
determining whether a genuine dispute of material fact exists, the court views the
inferences reasonably drawn from the evidence in the light most favorable to the
nonmoving party.20
The party moving for summary judgment bears the ultimate burden of
persuasion and the initial burden of producing evidence that shows the absence of a
genuine issue of material fact.21 Where the moving party would not bear the burden
of proof at trial, that party “must either produce evidence negating an essential
element of the nonmoving party’s claim or defense or show that the nonmoving party
does not have enough evidence of an essential element to carry its ultimate burden
of persuasion at trial.”22 “If a moving party fails to carry its initial burden of
production, the nonmoving party has no obligation to produce anything.”23
If a moving party successfully carries its burden of production, however, the
nonmoving party “must produce evidence to support its claim or defense.”24 The
nonmoving party must “identify with reasonable particularity the evidence that
precludes summary judgment.”25 “If the nonmoving party fails to produce enough
evidence to create a genuine issue of material fact, the moving party wins the motion
17 Fed. R. Civ. P. 56(a).
18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986) (“Only disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.”); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009).
19 Anderson, 477 U.S. at 248; FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514
(9th Cir. 2010).
20 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).
21 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007).
22 Nissan Fire & Marine Ins. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
23 Id. at 1102–03.
24 Id. at 1103.
25 Id.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 4 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
5
for summary judgment.”26
III. DISCUSSION
Plaintiff brings his claims under 42 U.S.C. § 1983, which provides that
[e]very person who, under color of [State law] . . .
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
To prevail on a § 1983 claim, a plaintiff must establish two “essential
elements: (1) that a right secured by the Constitution or laws of the United States
was violated, and (2) that the alleged violation was committed by a person acting
under the color of State law.”27 The Court examines each of Plaintiff’s three claims
in turn.28
A. PA-C Garroutte Did Not Violate Plaintiff’s Constitutional Right to
Adequate Medical Care.
Plaintiff challenges PA-C Garroutte’s provision of medical care to him under
the Fourteenth Amendment, alleging that PA-C Garroutte: (1) failed to prescribe him
with CBD oil, which Plaintiff was using to control his seizure disorder before his
incarceration; and (2) instead prescribed him Lamictal, an anti-seizure medication
that caused Plaintiff to experience more seizures and side effects such as bleeding,
26 Id. at 1102.
27 Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
28 Plaintiff includes Defendant Alaska Department of Corrections Health Services in the
caption of his Complaint, though he does not reference this Defendant elsewhere in the
pleading. Doc. 1 at 1. To the extent that Plaintiff wishes to sue this Defendant state agency,
it is immune from suit pursuant to the Eleventh Amendment of the U.S. Constitution. See
Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991) (explaining
that states have sovereign immunity pursuant to the Eleventh Amendment, and that “[t]he
Eleventh Amendment’s jurisdictional bar covers suits naming state agencies and
departments as defendants”); see also Peralta v. Dillard, 744 F.3d 1076, 1084 (9th Cir. 2014)
(“Congress could abrogate [sovereign] immunity, but it has not done so for cases brought
under 42 U.S.C. § 1983.”).
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 5 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
6
headaches, and rashes.29 To succeed on a Fourteenth Amendment claim for a
violation of the right to adequate medical care, a plaintiff must establish 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.30
“With respect to the third element, the defendant’s conduct must be objectively
unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of
each particular case.’”31
Defendants argue that PA-C Garroutte is not liable because her decisions did
not place Plaintiff at substantial risk of suffering serious harm, were not objectively
unreasonable, and did not cause Plaintiff’s seizures.32 Defendants provide expert
29 Doc. 1 at 3. Plaintiff indicates that he is bringing this claim under the Eighth Amendment.
Id. However, because the events underlying this claim occurred before Plaintiff had been
convicted of any crime in his federal criminal case, the claim is properly brought under the
Fourteenth Amendment, not the Eighth Amendment. See Jobe, No. 3:18-cr-00081-SLG, Doc.
41 (indicating that the District Court accepted Plaintiff’s guilty plea in his federal criminal
case on July 8, 2019. See Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018)
(holding that if an inmate is a pretrial detainee, any claims against prison officials for
injuries suffered while in custody “arise under the Fourteenth Amendment’s Due Process
Clause, rather than under the Eighth Amendment’s Cruel and Unusual Punishment Clause.”);
see also Castro v. County of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016). The
Fourteenth Amendment prohibits punishment “prior to an adjudication of guilt in
accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979).
This distinction between the Eighth and the Fourteenth Amendment determines the
analytical framework used to evaluate Plaintiff’s claim. To prevail on an Eighth Amendment
claim against a prison official for injuries suffered while in custody, a plaintiff must prove
that the official “subjectively ha[d] a sufficiently culpable state of mind. See Gordon, 888
F.3d at 1125 n.4. In contrast, to prevail on such a claim under the Fourteenth Amendment,
a plaintiff must prove only “objective” deliberate indifference. Gordon, 888 F.3d at 1124–
25.
30 Gordon, 888 F.3d at 1125.
31 Id. (quoting Castro, 833 F.3d at 1071).
32 Doc. 40 at 16–21.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 6 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
7
testimony from Dr. Lawrence to demonstrate that PA-C Garroutte’s decisions were
not objectively unreasonable. Dr. Lawrence explains that PA-C Garroutte added a
Lamictal prescription to Plaintiff’s seizure treatment plan after Plaintiff had
experienced multiple seizures while taking the maximum dosage of Keppra, another
anti-seizure medication.33 Dr. Lawrence testifies that PA-C Garroutte “correctly
identified that the Keppra prescription had not prevented [Plaintiff’s] seizure
activity and correctly prescribed [Lamictal as] a second antiepileptic medication
with a different chemical mechanism than Keppra.”34 Dr. Lawrence further testifies
that PA-C Garroutte’s denial of Plaintiff’s request to treat his seizure disorder with
CBD oil was appropriate because “[m]edications derived from CBD oil are only FDA
approved for certain well-defined seizures, none of which had been diagnosed in
[Plaintiff],” and because “CBD oil is known to interact with other anti-epileptic
medications” such as those Plaintiff had been prescribed.35 Accordingly, Dr.
Lawrence concludes that PA-C Garroutte’s decisions as to Plaintiff’s seizure disorder
were “within the expected standard of care for her role as a physician’s assistant
treating someone with a medical condition such as [Plaintiff’s] seizure disorder.”36
The Court finds that Dr. Lawrence’s declaration is sufficient to show that PA-
C Garroutte’s decisions with respect to Plaintiff’s seizure disorder were not
objectively unreasonable. Because Defendants have carried their burden of
production to negate this element of Plaintiff’s claim, Plaintiff must produce
evidence to create a genuine issue of material fact as to whether PA-C Garroutte’s
decisions were objectively unreasonable.37 Plaintiff has failed to produce any such
evidence. Therefore, Defendants are entitled to summary judgment on Plaintiff’s
33 Doc. 41 at 3.
34 Id.
35 Id. at 3–4.
36 Id. at 4.
37 See Nissan Fire & Marine Ins., 210 F.3d at 1103.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 7 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
8
claim against PA-C Garroutte.38
B. Dr. Moore Did Not Violate Plaintiff’s Constitutional Rights to
Adequate Medical Care and Non-Punitive Conditions of
Confinement.
Plaintiff next challenges the decisions to discontinue his Lamictal prescription
and to subsequently place him in administrative segregation under the Fourteenth
Amendment, attributing these decisions to Dr. Moore.39 The elements of a
Fourteenth Amendment claim for a violation of the rights to humane conditions of
confinement are identical to those applicable to a Fourteenth Amendment claim for
a violation of the right to adequate medical care.40 Namely, as explained above, a
plaintiff must prove 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.41
With respect to the first element, a plaintiff must “prove more than negligence but
less than subjective intent—something akin to reckless disregard.”42
Defendants argue that Dr. Moore is not liable because she did not make an
intentional decision to discontinue Plaintiff’s Lamictal prescription or to assign
Plaintiff to any housing unit at ACC.43 As to the Lamictal decision, Dr. Lawrence
testifies that there is no evidence in Plaintiff’s medical records that Dr. Moore made
38 Because the Court finds that Plaintiff’s constitutional rights were not deprived because of
PA-C Garroutte’s conduct, the Court need not address Defendants’ alternative claim of
qualified immunity.
39 Doc. 1 at 4. This claim is properly brought under the Fourteenth Amendment because the
underlying events occurred while Plaintiff was still a pretrial detainee.
40 See supra note 30 and accompanying text.
41 Gordon, 888 F.3d at 1125.
42 Id. (quoting Castro, 833 F.3d at 1071).
43 Doc. 40 at 25–30.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 8 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
9
or participated in that decision.44 Even if Dr. Moore had made that decision,
Defendants contend, that decision was not objectively unreasonable because Plaintiff
“was being titrated [at that time] on another anti-seizure medication, Tegretol,
which has the same mechanism of action as Lamictal.”45
As to Plaintiff’s housing assignment decision, Defendants first clarify that
Plaintiff was placed in medical segregation, as opposed to any other form of
administrative segregation.46 Defendants next argue that Dr. Moore, as a medical
professional, did not have the authority to make housing decisions for inmates.47
Defendants rely on Superintendent Lyou’s declaration, in which he testifies that, as
a general matter, “housing assignments at ACC are made by security personnel, not
medical personnel,” and in this specific case, he assigned Plaintiff to the medical
segregation unit.48 Defendants also point to Plaintiff’s medical records, which
contain a medical note from Dr. Moore to Plaintiff explaining that she “was not [his]
lead health provider” and that his post-medical-unit-admission requests for
information related to housing “ha[d] been directed to the Assistant Superintendent
at th[e] facility, since he is the officer who makes administrative housing
decisions.”49
The Court finds that Defendants have both properly identified a lack of
evidence showing that Dr. Moore did not personally participate in the decision to
discontinue Plaintiff’s Lamictal prescription, and produced evidence sufficient to
show that Dr. Moore did not personally participate in the decision to assign Plaintiff
44 Doc. 41 at 4.
45 Id.
46 Doc. 40 at 28–29. Contrary to Defendants’ assertions, it appears from the record that
medical segregation is a type—rather than an entirely separate category—of administrative
segregation. See Docs. 40-1 at 3; 40-3.
47 Doc. 40 at 29.
48 Doc. 42 at 2.
49 Doc. 40-2 at 1.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 9 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
10
to medical segregation.50 Without personal participation in these decisions, Dr.
Moore cannot have made an “intentional decision” that subjected Plaintiff to a
violation of his constitutional rights. Plaintiff has not presented any evidence
beyond the pleadings to establish a genuine issue of material fact as to how Dr.
Moore personally participated in either decision. Therefore, Defendants are entitled
to summary judgment on Plaintiff’s claim against Dr. Moore.51
C. Superintendent Lyou Did Not Violate Plaintiff’s Constitutional
Right to Adequate Medical Care.
Plaintiff’s third claim focuses on the incident where he was temporarily placed
in ACC’s medical unit and given a bed with blankets covered in someone else’s
blood.52 Plaintiff alleges that after he realized that the blankets were bloody, the
responding correctional officers denied him a shower and initially denied him a set
of clean clothes.53 Plaintiff implies that this incident may have led him to suffer a
blood infection.54 Plaintiff asserts this medical care or conditions of confinement
claim against Superintendent Lyou.55
Defendants maintain that Superintendent Lyou is not liable because he not
50 See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises
only upon a showing of personal participation by the defendant.”).
51 As Defendants point out, Plaintiff’s Complaint does not appear to allege that
Superintendent Lyou is liable for the decision to assign him to medical segregation. See
Docs. 1 at 4; 40 at 30. To the extent that Plaintiff does assert this claim against
Superintendent Lyou, the Court agrees with Defendants that the decision to assign Plaintiff
to medical segregation was not objectively unreasonable. See Doc. 40 at 30–32. Defendants
have produced evidence demonstrating that the decision was based on Superintendent
Lyou’s determination that the medical segregation unit was the only unit capable of meeting
the monitoring and caregiving requirements Dr. Moore had informed him were necessary to
safely house Plaintiff. Docs. 40-2 at 1; 42 at 2. These requirements and the limitations of
the medical segregation unit necessarily resulted in the restriction of some of Plaintiff’s
liberties: access to the gym, communal meals, and group programs. See Doc. 42 at 2. In
addition, because the Court finds that Plaintiff’s constitutional rights were not deprived as
a result of Dr. Moore or Superintendent Lyou’s conduct, the Court need not address
Defendants’ alternative claim of qualified immunity.
52 Doc. 1 at 5.
53 Id.
54 Id.
55 Id.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 10 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
11
only did not personally participate in the alleged events, but he also was “wholly
unaware” that they had occurred.56 Defendants point out that Plaintiff’s Complaint
does not contain any allegations that Superintendent Lyou was involved at any point
during the incident.57 Defendants further state that neither Plaintiff’s institutional
file nor his medical records contain evidence that the alleged incident occurred.58
Defendants assert that the only available evidence as to Superintendent Lyou’s
knowledge of the events is his testimony that he “would only become aware of . . . an
incident [in a cell] if it resulted in the creation of a disciplinary report or led to an
inmate filing a grievance,” neither of which occurred in this instance.59 Thus,
Defendants argue, there is no genuine dispute of material fact that Superintendent
Lyou was not aware of the alleged incident, which means that he cannot be liable for
any constitutional violation under § 1983.60
The parties do not explicitly address whether Plaintiff was a “pretrial
detainee” or a “convicted prisoner” at the time of the alleged incident, which took
place after the District Court’s acceptance of Plaintiff’s guilty plea in his federal
criminal case but before sentencing in that case.61 This distinction affects whether
56 Doc. 40 at 36–38.
57 Id. at 36.
58 Id.
59 Doc. 42 at 2.
60 Doc. 40 at 37–38.
61 See Doc. 1 at 5; Jobe, No. 3:18-cr-00081-SLG, Doc. 50; see also Bell, 441 U.S. at 535 n.16,
545 (using terms “convicted prisoner” and “sentenced inmate” interchangeably in
distinguishing these individuals from “pretrial detainees,” and explaining that while “[d]ue
process requires that a pretrial detainee not be punished[,] [a] sentenced inmate . . . may be
punished . . . that punishment may not be ‘cruel and unusual’ under the Eighth
Amendment”); Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (holding that inmate
asserting Fifth Amendment due process violations that occurred after pleading guilty but
before sentencing should be treated as a “sentenced inmate” instead of a “pretrial detainee”
for purposes of analyzing the constitutional claims, citing out-of-circuit case law drawing
the same distinction when determining whether Eighth Amendment or Fourteenth
Amendment governs); United States v. Patterson, 381 F.3d 859, 866 (9th Cir. 2004) (holding
that the defendant was “properly convicted” of an offense and that double jeopardy
therefore attached when the district court accepted the defendant’s valid guilty plea,
describing the conviction as having “necessarily ensued from [the] guilty plea”).
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 11 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
12
Plaintiff’s claim is properly considered an Eighth Amendment claim or a Fourteenth
Amendment claim.62 Defendants evaluate Plaintiff’s claim under the Eighth
Amendment framework, suggesting that they believe Plaintiff was a pretrial
detainee at the relevant time.63
As with a Fourteenth Amendment conditions of confinement claim brought by
a pretrial detainee, an Eighth Amendment conditions of confinement claim brought
by a convicted prisoner requires a showing that the defendant prison official acted
with deliberate indifference.64 But whereas the Fourteenth Amendment inquiry is
“purely objective,” the Eighth Amendment inquiry contains a subjective element,
requiring a plaintiff to prove that the defendant subjectively had “a sufficiently
culpable state of mind.”65 “A prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official [actually] knows of and disregards an excessive risk to inmate health or
safety.”66
The Court need not decide whether Plaintiff’s claim is an Eighth or Fourteenth
Amendment claim because, in any case, Plaintiff’s failure to produce any evidence of
Superintendent Lyou’s knowledge of or participation in the alleged incident is
dispositive. 	Defendants have produced evidence sufficient to show that
Superintendent Lyou was not aware of and thus could not have personally
participated in or caused any conduct that subjected Plaintiff to unsafe conditions of
confinement or inadequate medical care.67 Evidence of such knowledge or personal
involvement is a required element of Plaintiff’s claim, regardless of whether it is an
62 See supra note 29.
63 See Doc. 40 at 36–38.
64 See Gordon, 888 F.3d at 1125 n.4.
65 Castro, 833 F.3d at 1070–71 (internal quotation marks omitted) (quoting Estate of Ford v.
Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002)).
66 Gordon, 888 F.3d at 1125 n.4 (quoting Estate of Ford, 301 F.3d at 1049).
67 See Taylor, 880 F.2d at 1045.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 12 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
13
Eighth or Fourteenth Amendment claim.
In addition, personal involvement is a necessary element if Plaintiff’s claim is
brought under a supervisory liability theory.68 A supervisory official cannot be
vicariously liable under § 1983 for the actions of their employees, though they may
be liable for their own misconduct if they are an “integral participant” in the alleged
constitutional deprivation.69 A supervisory official may be liable as an integral
participant only if “(1) the defendant knows about and acquiesces in the
constitutionally defective conduct as part of a common plan with those whose
conduct constitutes the violation or (2) the defendant sets in motion a series of acts
by others which the defendant knows or reasonably should know would cause others
to inflict the constitutional injury.”70 Plaintiff has failed to produce any evidence to
create a genuine issue of material fact as to Superintendent Lyou’s knowledge of or
personal involvement in giving Plaintiff bloody blankets or in responding to the
incident. Therefore, Defendants are entitled to summary judgment on Plaintiff’s
claim against Supervisor Lyou.71
//
//
//
//
//
//
68 See Gordon, 888 F.3d at 1125 n.4
69 See Peck v. Montoya, 51 F.4th 877, 889–90 (9th Cir. 2022); see also Starr v. Baca, 652 F.3d
1202, 1207 (9th Cir. 2011) (“[W]hen a supervisor is found liable based on deliberate
indifference, the supervisor is being held liable for his or her own culpable action or
inaction, not held vicariously liable for the culpable action or inaction of his or her
subordinates.”).
70 Peck, 51 F.4th at 889 (internal quotation marks and alterations omitted).
71 Because the Court finds that Plaintiff’s constitutional rights were not deprived as a result
Superintendent Lyou’s conduct, the Court need not address Defendants’ alternative claim of
qualified immunity.
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 13 of 14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
R&R re Motion for Summary Judgment
Jobe v. DOC Health Servs., et al.
3:20-cv-00245-SLG-KFR
14
IV. CONCLUSION
In sum, Defendants have met their burden of showing that there exists no
genuine issue of material fact and that they are entitled to judgment as a matter of
law with respect to each of Plaintiff’s claims. The Court therefore recommends that
the Motion be GRANTED and that Plaintiff’s claims be DISMISSED with prejudice.
DATED this 5th day of February, 2024 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge
to hear and determine matters pending before the Court. For dispositive matters, a
magistrate judge reports findings of fact and provides recommendations to the
presiding district court judge.72 A district court judge may accept, reject, or modify,
in whole or in part, the magistrate judge’s order.73
A party may file written objections to the magistrate judge’s order within 14
fourteen days.74 Objections and responses are limited to five (5) pages in length and
should not merely reargue positions previously presented. Rather, objections and
responses should specifically identify the findings or recommendations objected to,
the basis of the objection, and any legal authority in support. Reports and
recommendations are not appealable orders. Any notice of appeal pursuant to Fed.
R. App. P. 4(a)(1) should not be filed until entry of the district court’s judgment.75
72 28 U.S.C. § 636(b)(1)(B).
73 Id. § 636(b)(1)(C).
74 Id.
75 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
Case 3:20-cv-00245-SLG-KFR Document 46 Filed 02/06/24 Page 14 of 14