Naum v. Idaho Department of Health and Welfare et al
Filing
53
MEMORANDUM DECISION AND ORDER granting in part and denying in part 43 Motion to Amend/Correct. Plaintiff shall file a Second Amended Complaint within 45 days. The Second Amended Complaint shall be filed in strict adherence with this order or be subject to dismissal. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JAMES NAUM,
Case No. 1:09-CV-633-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
DANA McGREW; EDWARD
LOCKWOOD; DOE Is.
Defendants.
INTRODUCTION
The Court has before it Plaintiff’s Motion for Leave to Amend (Dkt. 43).
FACTUAL AND LEGAL BACKGROUND
Plaintiff James Naum brings this action seeking damages related to the denial of
his application for “safety-net” benefits by the regional Department of Health and Human
Services (DHHS) and Idaho Department of Health and Welfare (DHW). According to
Mr. Naum, his application was denied on March 9, 2009 by Defendant Dana McGrew, a
DHW employee, due to insufficient bank account documentation. Am. Compl., Dkt. 16 at
¶ 14. Mr. Naum transmitted complaints and documents related to the benefits denial to
the offices of United States Congressman Mike Simpson and Governor Butch Otter. Id.
at ¶¶ 17, 20.
MEMORANDUM DECISION AND ORDER - 1
On June 5, 2009, Mr. Naum was notified that he was eligible for food stamps and a
Medicare program that “pays for Medicine Part B premiums . . . and deductibles for
income qualified beneficiaries.” Id. at ¶ 18. This notice notwithstanding, Mr. Naum
claims that he never received the awarded benefits. Mr. Naum faxed a protest letter to
DHW Hearing Officer Edward Lockwood and requested a hearing. Id. at ¶ 21. Ms.
McGrew, the person most familiar with Mr. Naum’s case, was sick and unable to attend
the scheduled hearing. Mr. Naum did not attend after asking Mr. Lockwood to
reschedule. On June 11, 2009, Mr. Lockwood issued an order denying Mr. Naum’s
benefits and appeal. Id. at ¶ 22.
In November of 2009, Mr. Naum contacted the clerk’s office of this Court, and
was allegedly told that § 1983 suits are only utilized by prisoners. Id. at ¶ 23.
Mr. Naum filed his initial complaint in this matter on December 7, 2009. Dkt. 3.
Mr. Naum asserted myriad causes of action against DHW, Barbara Richards and Janice
Adams (DHHS regional officials), Lindsay Russell (staffmember of Governor Otter),
Richard Armstrong and Christine Roberson (DHW officials), Dana McGrew, Edward
Lockwood, Doe Is (DHW employees), and Doe IIs (United States District Court for the
District of Idaho Clerk’s Office staff). The Court previously dismissed (1) all claims
against Defendants DHW, Armstrong, Adams, and Doe IIs, with leave to amend; (2) all
claims under the Fourth and Eighth Amendment with leave to amend; (3) all tort claims
with leave to amend. Dkt. 10.
Mr. Naum filed his amended complaint on July 16, 2010, asserting myriad causes
MEMORANDUM DECISION AND ORDER - 2
of action against DHW, Barbara Richards, Lindsay Russell, Richard Armstrong, Christine
Roberson, Dana McGrew, Edward Lockwood, Doe Is (DHW employees), and Doe IIs
(United States District Court for the District of Idaho Clerk’s Office staff). Dkt. 16. Mr.
Naum added a claim against Governor Butch Otter. The Court initially dismissed the
amended complaint due to Mr. Naum’s failure to pay any of his in forma pauperis filing
fees (Dkt. 17), but subsequently reconsidered (Dkt. 21). In its Second Review Order, the
Court dismissed (1) all claims under the Fourth and Eighth Amendment, and (2) all
claims against Barbara Richards, Christine Roberson, DHW, Governor Otter, Richard
Armstrong, Lindsay Russell, and Doe IIs. Surviving claims consisted of tort and due
process claims under the Fifth and Fourteenth Amendments against Dana McGrew,
Edward Lockwood, and Doe Is. Dkt. 24.
Mr. Naum moved for leave to file a proposed second amended complaint on
March 7, 2011, asserting claims against previously dismissed defendants DHW, Barbara
Richards and Janice Adams, Lindsay Russell, Richard Armstrong, Christine Roberson,
Doe Is, and Governor Otter. Dkt. 43. Mr. Naum asserted new claims against unnamed
Ada County Jail medical staffers, the 4th District Court Magistrate, and Wendy Olson, the
United States Attorney for the District of Idaho. Defendants oppose Mr. Naum’s motion
for leave to amend. Dkts. 46, 49.
LEGAL STANDARD
Federal Rule of Civil Procedure 15(a) states that leave to amend “shall be freely
given when justice so requires.” Where a complaint has been amended once, a party may
MEMORANDUM DECISION AND ORDER - 3
amend the complaint only with the written consent of the opposing party or with leave of
the court. Fed. R. Civ. P. 15(a)(2). Although a court should freely grant leave to amend
the pleadings when justice requires it, a “district court’s discretion to deny leave to amend
is particularly broad where a plaintiff has previously amended the complaint.” Ascon
Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). A district court
. . . may . . . deny leave to amend due to undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,
and futility of amendment.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007
(9th Cir. 2009) (internal quotation and alteration omitted).
ANALYSIS
Before considering the viability of Mr. Naum’s claims, the Court will first
determine which defendants are immune from suit or should otherwise be dismissed from
this matter.
A.
New and Previously Dismissed Defendants
1.
Wendy Olson
Mr. Naum names Wendy Olson, United States Attorney for the District of Idaho,
as a defendant for the first time in his proposed second amended complaint, alleging that
his constitutional rights were violated by Ms. Olson’s failure to prosecute staff of the Ada
County jail for attempting to murder him via medicinal pharmaceuticals. Proposed
Second Am. Compl., Dkt. 43-1 at 5. Prosecutorial immunity bars a civil rights suit against
MEMORANDUM DECISION AND ORDER - 4
Ms. Olson. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Accordingly, the Court will
not grant leave to amend the complaint to include Ms. Olson as a defendant.
2.
Idaho Department of Health and Welfare
The Court previously dismissed Mr. Naum’s claims against the Idaho DHW on the
basis of Eleventh Amendment sovereign immunity. Puerto Rico Aqueduct and Sewer
Authority v. Metcalf & Eddy, Inc., 506 US 139, 144-146 (1993). Mr. Naum provides no
new facts to support this claim in his proposed second amended complaint. Accordingly,
the Court will not grant leave to amend to re-name the Idaho DHW as a defendant.
3.
Governor Butch Otter
The Court previously dismissed Mr. Naum’s claims against Governor Otter in his
official capacity on the basis of Eleventh Amendment sovereign immunity. Id. The
Court has previously dismissed the claims against Governor Otter in his personal capacity
because Mr. Naum failed to allege plausibly that Governor Otter was personally involved
in the denial of his benefits. See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Mr. Naum provides no new facts to support these claims in his proposed second amended
complaint.
Mr. Naum does make new allegations that Governor Otter, through agents,
arranged punitive bail and attempted to murder him. Proposed Second Am. Compl., Dkt.
43-1 at 5. Amendment to include this claim would be futile, because the allegations are
conclusory and do not state a plausible claim for relief. Mr. Naum states no facts
showing that Governor Otter actually “used agents” to harm him. Accordingly, the Court
MEMORANDUM DECISION AND ORDER - 5
will not grant leave to amend to re-name Governor Otter as a defendant.
4.
Richard Armstrong and Christine Roberson
The Court previously dismissed Mr. Naum’s claims against Richard Armstrong
and Christine Roberson, officials with the Idaho DHW. A supervisor is only liable for
constitutional violations of his subordinates if the supervisor participated in or directed
the violations, or knew of the violations and failed to act to prevent them. There is no
respondeat superior liability under § 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Mr. Naum’s proposed second amended complaint, like the earlier iterations,
contains allegations supporting only a respondeat superior theory of liability against these
defendants. No new, plausible personal involvement in the denial of Mr. Naum’s benefits
is alleged; at most, Ms. Roberson might have received faxed information from Mr. Naum.
Accordingly, the Court will not grant leave to amend to re-name Mr. Armstrong and Ms.
Roberson as defendants.
5.
Barbara Richards and Janice Adams
Ms. Richards is an official with the regional DHHS; Ms. Adams is her assistant.
The Court dismissed the amended complaint’s claims against Ms. Richards because the
only allegations concerning her consisted of a letter dated June 9, 2009, in which she
informed Mr. Naum that he was eligible for certain Medicare benefits. Order, Dkt. 24 at
8. No new, plausible personal involvement in the denial of Mr. Naum’s benefits is
alleged. Accordingly, the Court will not grant leave to amend to re-name Ms. Richards as
a defendant.
MEMORANDUM DECISION AND ORDER - 6
Ms. Adams was named in the original complaint, but not named in the amended
complaint. The Court dismissed all claims against Ms. Adams due to Mr. Naum’s failure
to allege any personal involvement in the denial of his benefits. Order, Dkt. 10 at 8. Mr.
Naum moves now to re-name Ms. Adams. The proposed second amended complaint is
devoid, however, of any allegations relating to Ms. Adams, aside from her employment as
Ms. Richards’ assistant. Accordingly, the Court will not grant leave to amend to re-name
Ms. Adams as a defendant.
6.
Lindsay Russell
The Court previously dismissed all claims against Ms. Russell, an assistant to
Governor Otter, because Mr. Naum failed to allege any plausible personal involvement in
the denial of his benefits. Order, Dkt. 24 at 8. Mr. Naum reiterates his allegations that he
faxed numerous documents related to the denial of his benefits to Ms. Russell. Proposed
Second Am. Compl., Dkt. 43-1 at 2. No causal connection between these faxes and the
denial of benefits is alleged. Accordingly, the Court will not grant leave to amend to rename Ms. Russell as a defendant.
7.
Doe IIs
The Court previously dismissed all claims against Doe IIs, clerks of the United
States District Court for the District of Idaho. Order, Dkt. 24 at 6. Court clerks or
administrators are entitled to absolute immunity from liability for damages “when they
perform tasks that are an integral part of the judicial process.” Mullis v. United States
Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir. 1987). The proposed second amended
MEMORANDUM DECISION AND ORDER - 7
complaint contains no new allegations against the Doe IIs, only the conclusory statement
that “[g]iving out false information and instructions is not part of the judicial process!”
Proposed Second Am. Compl., Dkt. 43-1 at 5. Accordingly, the Court will not grant leave
to amend to re-name Doe IIs as defendants.
8.
Ada County Jail Medical Staffers
The proposed second amended complaint alleges that the Ada County jail medical
staff denied Mr. Naum heart medication for two weeks, denied him a doctor’s visit, and
gave him allegedly improper medication. Proposed Second Am. Compl., Dkt. 43-1 at 5.
Construed liberally, these allegations state a plausible Eighth Amendment claim of
deliberate indifference on the part of the unnamed staff. See, e.g., Jackson v. McIntosh,
90 F.3d 330, 332 (9th Cir. 1996) (a prisoner can establish deliberate indifference by
showing that a delay in treatment was “medically unacceptable”); Lopez v. Smith, 203
F.3d 1122, 1132 (9th Cir. 2000) (en banc) (“[a prisoner] can establish deliberate
indifference by showing that officials intentionally interfered with his medical
treatment.”). Under the Eighth Amendment’s standard of deliberate indifference, a
person is liable for denying a prisoner needed medical care only if the person “knows of
and disregards an excessive risk to inmate health and safety.” Farmer v. Brennan, 511
U.S. 825, 837 (1994). Though Mr. Naum does not specifically allege the requisite mental
state, it does not appear that amendment would necessarily be futile. Accordingly, the
Court will grant leave to amend this claim.
9.
4th District Court Magistrate Judge
MEMORANDUM DECISION AND ORDER - 8
Mr. Naum seeks to add as a defendant an unnamed 4th District Court Magistrate
Judge, alleging that the judge imposed upon him a punitive bail. Proposed Second Am.
Compl., Dkt. 43-1 at 5. Mr. Naum’s allegations are conclusory and barred by judicial
immunity. Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Accordingly, the Court will not
grant leave to amend to add this claim against the unnamed judge.
B.
Claims Against Remaining Defendants
The remaining defendants are Edward Lockwood and Dana McGrew, both of
whom are employees of DHW; Doe Is, who are unnamed employees of DHW allegedly
involved in the denial of Mr. Naum’s benefits; and unnamed Ada County Jail medical
staffers. Mr. Naum has for the first time in the second amended complaint delineated his
general allegations into specific claims. The Court will now consider the extent to which
Mr. Naum’s claims are applicable to these remaining defendants and whether leave will
be granted to amend the complaint to include particular claims.
1.
Count I - Violation of Constitutional Rights by all Defendants
Mr. Naum alleges that all named defendants violated his constitutional rights under
the Fourth, Fifth, Eighth, and Fourteenth Amendments. Proposed Second Am. Compl.,
Dkt. 43-1 at 3. In its review of Mr. Naum’s amended complaint, the Court dismissed
claims of Fourth and Eighth Amendment violations for failure to allege facts in support
thereof. Order, Dkt. 24 at 6. As discussed in the context of the unnamed Ada County Jail
medical staffers, Mr. Naum has now alleged a colorable Eighth Amendment violation,
and will be allowed to amend his complaint to provide greater specificity regarding this
MEMORANDUM DECISION AND ORDER - 9
claim.
Mr. Naum has made no new plausible allegations sufficient to support a Fourth
Amendment claim. Accordingly, the Court will not grant leave to amend this claim.
Regarding due process claims brought under the Fifth and Fourteenth
Amendments, the Court has previously determined that Mr. Naum’s allegations state a
colorable due process claim against Mr. Lockwood and Ms. McGrew. Order, Dkt. 24 at
7-8.
The claims against Doe Is are generally the same as those alleged against Mr.
Lockwood and Ms. McGrew: improper denial of benefits. Within 45 days, Mr. Naum
shall state with specificity the names of the actors alleged to have engaged in this conduct
or the claim shall be dismissed, as the Court cannot effect service on unnamed
defendants.
2.
Count II - Violation of Constitutional Rights by all Defendants
The Court will not grant leave to amend the complaint to include this claim for
exemplary, rather than compensatory, damages because it is duplicitous of the first claim.
3.
Count III - Violation of Statutory Civil Rights by all Defendants
Mr. Naum has not alleged any civil rights violations distinct from his earlier
constitutional claims. Id. Accordingly, the Court will not grant leave to amend this
claim.
4.
Count IV - Conspiracy to Violate Civil Rights by all Defendants
This claim is currently insufficient, as Mr. Naum only makes the conclusory
MEMORANDUM DECISION AND ORDER - 10
statement that the defendants engaged in a conspiracy to deprive him of his civil rights.
Additionally, a plaintiff must allege a racial or class-based discriminatory animus behind
the conspirators’ actions. See Burns v. County of King, 883 F.2d 819, 821 (9th Cir.
1989); see also A & A Concrete, Inc. v. White Mountain Apache Tribe, 676 F.2d 1330,
1333 (9th Cir. 1982) (claims under sections 1985(2) and 1985(3) require the element of
class-based animus). Though rife with allegations of individual improper conduct and
innuendo of conspiracy, the complaint is devoid of factual allegations that specific
defendants actively agreed to engage in a conspiracy to deny Mr. Naum’s benefits based
on his race or class.
It is not clear, however, that amendment of this claim would be futile, and Mr.
Naum has not previously asserted a conspiracy claim. Accordingly, leave to amend this
claim is granted. Specific facts, as opposed to conclusions, must be alleged if the claim is
to proceed.
5.
Count V - Intentional Infliction of Emotional Distress by all Defendants
The Court previously dismissed this tort claim due to Mr. Naum’s failure to
present the claim to the Secretary of State as required by I.C. §§ 6-905, 6-908. Order,
Dkt. 24 at 3. Mr. Naum has not alleged that he did, in fact, present this tort claim.
Accordingly, the Court will not grant leave to amend the complaint to re-allege this claim.
6.
Count VI - Intentional Infliction of Emotional Distress by all Defendants
The Court will not grant leave to amend the complaint to include this claim for
exemplary, rather than compensatory, damages for the reasons stated in the previous
MEMORANDUM DECISION AND ORDER - 11
section.
7.
Count VII - Respondeat Superior Liability - State of Idaho
The Court will not grant leave to amend the complaint to include this claim
because the State of Idaho is immune from such suit and is dismissed as a defendant.
Puerto Rico, 506 US at 144-146.
8.
Count VIII - Negligence by all Defendants
The Court previously dismissed this tort claim due to Mr. Naum’s failure to
present the claim to the Secretary of State as required by I.C. §§ 6-905, 6-908. Order,
Dkt. 24 at 3. Mr. Naum has not alleged that he did, in fact, present this tort claim.
Accordingly, the Court will not grant leave to amend the complaint to re-allege this claim.
9.
Count IX - Negligence by all Defendants
The Court will not grant leave to amend the complaint to include this claim for
exemplary, rather than compensatory, damages for the reasons stated in the previous
section.
10.
Count X - Negligence - Idaho DHW
The Court will not grant leave to amend the complaint to include this claim both
because it is not alleged to have been presented to the Secretary of State pursuant to I.C.
§§ 6-905, 6-908, and because the DHW is immune from suit and is dismissed as a
defendant. Puerto Rico, 506 US at 144-146.
11.
Count XI - Negligence - Idaho DHW
The Court will not grant leave to amend the complaint to include this claim for
MEMORANDUM DECISION AND ORDER - 12
exemplary, rather than compensatory, damages for the reasons stated in the previous
section.
12.
Count XII - Denial of Medical Treatment and Safety Net Benefits
This claim is the same as Mr. Naum’s first constitutional due process claim
alleging the improper denial of benefits. Accordingly, the Court will not grant leave to
amend the complaint to include this claim.
ORDER
IT IS ORDERED:
1.
Plaintiff’s Motion to Amend (Dkt. 43) is granted in part and denied in
part.
2.
Leave to amend the complaint to name Wendy Olson, Governor Otter,
Richard Armstrong, Christine Roberson, Barbara Richards, Janice Adams,
Lindsay Russell, Doe IIs, and an unnamed 4th District Court Magistrate
judge as defendants is denied.
3.
Leave to amend the complaint to allege Counts II-III, and V-XII is denied.
4.
Leave to amend Count IV is granted. Plaintiff shall state with particularity
the facts giving rise to the cause of action, and the specific defendants who
engaged in the conduct allged. Conclusory allegations insufficient to
state a claim for relief shall be dismissed
5.
Plaintiff may proceed on Count I against defendants Edward Lockwood and
Dana McGrew.
MEMORANDUM DECISION AND ORDER - 13
6.
Plaintiff may proceed on Count I against Doe Is, any unnamed DHW
employees who improperly denied him benefits.
7.
Plaintiff may proceed on Count I against unnamed Ada County Jail medical
staffers.
8.
Plaintiff shall file a Second Amended Complaint within 45 days. The
Second Amended Complaint shall be filed in strict adherence with this
order or be subject to dismissal. If currently unnamed parties are not named
at that time, the claims against them will be dismissed. Plaintiff is strongly
cautioned, particularly in conjunction with the conspiracy claim, to refrain
from simply re-alleging previously dismissed claims, as he has thus far
shown a habit of doing, or the entire complaint shall be subject to
dismissal as frivolous and harassing.
DATED: April 10, 2011
Honorable B. Lynn Winmill
Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER - 14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?