Abbott et al v. Reinke et al

Filing 12

INITIAL REVIEW ORDER dismissing without prejudice 2 Complaint; denying as moot 1 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Certify Class; denying as moot 4 Motion to Appoint Counsel; denying as moot 10 Motion for Or der to Show Cause; denying 11 Motion for Default Judgment. Plaintiff Abbot may file his amended complaint in this action. Each other Plaintiff must file his amended complaint in a separate action (referencing its origin in this action), but will be entitled to take advantage of the original filing date of the joint Complaint for statute of limitations purposes. Each Plaintiff will be responsible to pay a portion of the original filing fee. 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

DENNIS E. ABBOTT, JEFFREY T.
GARNER, JOHN LLOYD, and
ROBERT L. BROWN,

Case No. 1:11-cv-00561-BLW
INITIAL REVIEW ORDER

Plaintiffs,
v.
BRENT REINKE, OLIVIA CRAVEN,
IDAHO DEPT. OF CORRECTIONS,
IDAHO COMMISSIONS OF
PARDONS AND PAROLE, IDAHO
DEPT. OF HEALTH AND WELFARE,
and IDAHO DISTRICT COURTS (all
districts),
Defendants.

The Clerk of Court conditionally filed Plaintiffs’ Complaint due to their status as
prisoners and their in forma pauperis requests. As a result, Plaintiffs’ Complaint is subject
to review by the Court to determine whether it or any of its claims are subject to summary
dismissal under 28 U.S.C. §§ 1915(e)(2) and 1915A. Having reviewed the record, and
otherwise being fully informed, the Court enters the following Order dismissing the
Complaint without prejudice to filing individual amended complaints or petitions for
writs of habeas corpus, as might be appropriate in each inmate’s particular circumstances.

INITIAL REVIEW ORDER - 1

REVIEW OF COMPLAINT
1.

Standard of Law
The Court is required to review complaints seeking relief against a governmental

entity or an officer or employee of a governmental entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915. The Court must dismiss a complaint or any
portion thereof that states a claim that is frivolous or malicious, that fails to state a claim
upon which relief may be granted, or that seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Plaintiffs bring claims under 42
U.S.C. § 1983, the civil rights statute. To state a claim under § 1983, a plaintiff must
allege a violation of rights protected by the Constitution or created by federal statute
proximately caused by conduct of a person acting under color of state law. Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Supreme Court
clarified that, to state a claim that will survive summary dismissal, the complaint must
contain not only sufficient factual content, but facially plausible factual content. Id. at
678. As to the first principle, the Iqbal Court explained, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id.
As to the second principle, the Iqbal Court reiterated that “only a complaint that
states a plausible claim for relief survives” summary dismissal or a motion to dismiss. 556
U.S. at 679. Particularly, the Court explained:
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Determining whether a complaint states a plausible claim for relief
will, as the Court of Appeals observed, be a context-specific task that
requires the reviewing court to draw on its judicial experience and common
sense. 490 F.3d, at 157–158. But where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not “show[n]”—“that the pleader is
entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
Id. at 679.
2.

Background
Plaintiffs are four convicted felons who have been evaluated and sentenced based

on Idaho Code § 19-2523, which is entitled “Consideration of mental illness in
sentencing.” That section provides:
(1) Evidence of mental condition shall be received, if offered,
at the time of sentencing of any person convicted of a crime.
In determining the sentence to be imposed in addition to other
criteria provided by law, if the defendant's mental condition is
a significant factor, the court shall consider such factors as:
(a) The extent to which the defendant is
mentally ill;
(b) The degree of illness or defect and level of
functional impairment;
(c) The prognosis for improvement or
rehabilitation;
(d) The availability of treatment and level of
care required;
(e) Any risk of danger which the defendant may
create for the public, if at large, or the absence
of such risk;
(f) The capacity of the defendant to appreciate
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the wrongfulness of his conduct or to conform
his conduct to the requirements of law at the
time of the offense charged.
(2) The court shall authorize treatment during the period of
confinement or probation specified in the sentence if, after the
sentencing hearing, it concludes by clear and convincing
evidence that:
(a) The defendant suffers from a severe and reliably
diagnosable mental illness or defect resulting in the
defendant's inability to appreciate the wrongfulness of
his conduct or to conform his conduct to the
requirements of law;
(b) Without treatment, the immediate prognosis is for
major distress resulting in serious mental or physical
deterioration of the defendant;
(c) Treatment is available for such illness or defect;
(d) The relative risks and benefits of treatment or
nontreatment are such that a reasonable person would
consent to treatment. (of the offense charged.)
(3) In addition to the authorization of treatment, the court shall
pronounce sentence as provided by law.
I.C. § 19-2523.1
Plaintiffs allege, in wholesale fashion, that the state courts and the state prisons
have not followed this statute or the recommendations of mental health evaluators for
placement and treatment during sentences. Plaintiffs allege that they should have received
civil commitment rather than criminal punishment. (Complaint, Dkt. 2.) They assert

1

It is to be noted that Idaho has a civil commitment statute, but the Plaintiffs do
not assert that they are under orders of civil commitment. See I.C. § 66-329.
INITIAL REVIEW ORDER - 4

various constitutional claims arising from these allegations, but because the claims are
“threadbare” and conclusory, an amendment will be required if any Plaintiff wishes to
proceed with his case.
3.

Whether the Claims Implicate Plaintiffs’ Sentences
Because the claims involve criminal sentences, a threshold issue in this case is

whether the claims are of the nature of civil rights or habeas corpus. While certain types
of claims may be brought as § 1983 claims, others must be asserted in habeas corpus
actions because they implicate the bar of Heck v. Humphrey, 512 U.S. 477, 481 (1994),
where the United States Supreme Court determined that a prisoner in state custody cannot
use a civil rights action to challenge the fact or duration of his confinement. See
Wilkinson v. Dotson, 544 U.S. 74 (2005). The Wilkinson v. Dotson opinion addressed
parole claims, but its reasoning, based on Heck v. Humphrey, is equally applicable to
sentence challenges.
In Wilkinson v. Dotson, the Court determined that an inmate may initiate a § 1983
action to seek invalidation of “state procedures used to deny parole eligibility . . . and
parole suitability,” but he may not seek “an injunction ordering his immediate or speedier
release into the community.” Id. at 82. When a state prisoner seeks “a determination that
he is entitled to immediate release or a speedier release from . . . imprisonment, his sole
federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500
(1973). In Dotson, the Supreme Court noted that its previous cases, “taken together,
indicate that a state prisoner's § 1983 action is barred (absent prior invalidation)–no
INITIAL REVIEW ORDER - 5

matter the relief sought (damages or equitable relief), no matter the target of the prisoner's
suit (state conduct leading to conviction or internal prison proceedings)–if success in that
action would necessarily demonstrate the invalidity of confinement or its duration. Id. at
81-82.
Here, Plaintiffs allege that they are challenging “the imposition of a sentence.”
(Dkt. 2, p. 3.) To the extent that any claim seeks a different sentence (such as
commitment to a mental health institution rather than incarceration in prison) or a change
in the sentence length (such as a shorter criminal sentence), it is not cognizable here, but
must be asserted in habeas corpus. To the extent Plaintiffs wish to clarify their claims to
allege that their prison conditions are constitutionally inadequate in the provision of
mental health treatment, such claims may be brought in an amended civil rights
complaint.
4.

Discussion
A.

Eighth Amendment Cruel and Unusual Punishment Claim

Plaintiffs allege that Defendants “have all violated Plaintiffs’ Eighth Amendment
Rights of the U.S. Constitution by pronouncing criminal sentences upon diagnosed
mental patients by punishing these patients rather than treating these special offenders
with rehabilitation . . . according to the procedures pro[mulgated] by Idaho Code §§ 192520, 19-2522, 19-2523 and the entire title 66 of I.C.” (Complaint, Dkt. 2 p. 5.)
(1)

Fact of Confinement

As set forth above, to the extent that Plaintiffs are challenging the fact of
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confinement–a criminal sentence rather than a mental health commitment–they have not
stated a cognizable civil rights claim, but must proceed in habeas corpus.
(2)

Facial or As Applied Constitutional Challenge

To the extent that Plaintiffs are challenging the statute itself as violating the Eighth
Amendment, either facially or as applied, they have failed to state a claim, because there
is no constitutional right to rehabilitation or to placement in a mental hospital for
convicted felons, as opposed to placement in a penal institution which offers mental
health treatment. See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (no
right to a particular security classification or to prison rehabilitative services); Hoptowit v.
Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982) (no general right to rehabilitation).2
Similarly, United States Supreme Court cases on civil commitment address the
opposite argument: that a person cannot be placed in civil commitment indefinitely,
without initial and continuing due process protections; the Court finds no cases
supporting Plaintiffs’ claim that a mentally ill person has a constitutional right to be
civilly committed, rather than sentenced, after conviction, as Plaintiffs argue. See Kansas
v. Hendricks, 521 U.S. 346 (1997); Jackson v. Indiana, 406 U.S. 715 (1972); Baxstrom v.
Herold, 383 U.S. 107 (1966).
(3)

Particular Conditions of Confinement

To bring an Eighth Amendment challenge to one’s conditions of confinement, a

2

Hoptowit was abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)
(setting forth due process liberty interest test).
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plaintiff must allege specific facts supporting the elements of such a claim. An Eighth
Amendment claim must allege facts showing that Plaintiffs are incarcerated under
conditions posing a substantial risk of serious harm, Farmer v. Brennan, 511 U.S. 825,
834 (1994), or that their conditions of confinement are “offensive to human dignity.”
Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991). In addition, a plaintiff must allege
facts showing that prison officials’ “acts or omissions [were] sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Hudson v. McMillian, 503
U.S. 1, 8 (1992) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)).
The Supreme Court has opined that “[b]ecause society does not expect that
prisoners will have unqualified access to health care, deliberate indifference to medical
needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’” Id.
The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner's condition [that] could result in further significant
injury or the unnecessary and wanton infliction of pain; . . . [t]he existence
of an injury that a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a medical condition that
significantly affects an individual's daily activities; or the existence of
chronic and substantial pain.
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds,
WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Under the Eighth Amendment, “a convicted prisoner is entitled to psychological or
psychiatric care for serious mental or emotional illness.” Inmates of Allegheny County
Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979). There is “no underlying distinction
between the right to medical care for physical ills and its psychological or psychiatric
INITIAL REVIEW ORDER - 8

counterpart.” Id. (internal citation omitted). The Eighth Amendment claim fails if the
need is not serious, or if the defendants have not exhibited deliberate indifference in
providing diagnostic services and treatment.
Here, Plaintiffs have failed to state which particular conditions of confinement
constitute cruel and unusual punishment. It is not enough that they have alleged, in bare
fashion, that they should be placed in rehabilitative programs or mental hospitals rather
than in prison. Rather, each Plaintiff must allege what his mental health conditions are,
what his judgment of conviction required (for example, that the statutory factors in I.C.
§ 19-2523(2)(a) to (d) were found applicable, by clear and convincing evidence, and that
treatment was ordered during incarceration), and how the individual Defendants in whose
custody Plaintiffs reside have failed to provide him with adequate mental health
treatment.
B.

Miscellaneous Legal Citations

Plaintiffs also set forth a laundry list of legal citations, including, but not limited
to, the Uniform Duties to Disabled Persons Act and the Torture Prevention Act. Plaintiffs
argue that these laws exemplify the evolving standards of decency required in treating
mentally ill offenders. (Dkt. 2, p. 6.) However, these allegations do not satisfy the Iqbal
pleading standards. Without setting forth more particular factual allegations, and then
stating how those factual circumstances transgress any of these legal standards that may
be applicable, Plaintiffs may not proceed on such claims.
C.

Fifth and Fourteenth Amendment Right to Substantive Due Process

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Plaintiffs argue that Defendants have violated Plaintiffs’ Fifth and Fourteenth
Amendment right to substantive due process by ignoring disposition procedures for
placing mentally ill inmates in rehabilitative programs prescribed by Idaho Code.
(1)

Fifth Amendment

First, Plaintiffs have no claim under the Fifth Amendment, because “the Fifth
Amendment's due process clause applies only to the federal government.” Bingue v.
Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). Because no named Defendant is a federal
actor, Plaintiff has failed to state a claim for violation of the Fifth Amendment.
(2)

State-Created Liberty Interest

Plaintiffs can proceed under the Fourteenth Amendment’s Due Process Clause
only if they can show that mentally ill inmates have a state-created liberty interest in
being placed in mental hospitals or in prison rehabilitative programs. Plaintiffs have
failed to point to any statute that creates such a liberty interest.
Plaintiffs focus on I.C. § 19-2523, which requires a sentencing judge to weigh a
defendant's mental condition as a sentencing consideration if that condition is a
significant issue. (See text of I.C. § 19–2523, set forth in the background section of this
Order). That statute provides only that the sentencing court shall have authority to
authorize mental health treatment, in conjunction with pronouncing the sentence provided
by law. In State v. Delling, 267 P.3d 709 (Idaho 2011), the Idaho Supreme Court
clarified:
[T]he “defendant's mental condition is simply one of the factors that
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must be considered and weighed by the court at sentencing.” State v.
Strand, 137 Idaho 457, 461, 50 P.3d 472, 476 (2002). The statute does not
require that a defendant's mental condition be the controlling factor at
sentencing, nor does it require the district court to specifically reference all
of the factors. Id.
267 P.3d at 719.
Plaintiffs have failed to set forth any particular facts about their convictions and
sentences; it is impossible to tell whether their circumstances even fit within any of the
statutes they have cited. Whether Plaintiffs are entitled to more or different treatment
within the confines of their incarceration is better examined on case-by-case basis.
(3)

Habeas-Type Claims

If civil commitment rather than incarceration is sought under the Due Process
Clause, that must be raised in each Plaintiff’s criminal case or in habeas corpus. For
example, in State v. Desjarlais, 714 P.2d 69, (Idaho App. 1986), the Idaho Court of
Appeals considered just such an issue. There, it was undisputed that the convicted person
had serious mental problems. The sentencing court expressed concern that it had only two
options: to incarcerate or to release on probation for treatment. Because protection of
society weighed in the balance, the sentencing court opted for incarceration. The Idaho
Court of Appeals held that the district court did not abuse its discretion in sentencing,
because it carefully weighed the facts and the sentencing options under the statute.
Because such an argument implicates the fact of confinement, it must be brought in a
criminal case appeal or a habeas corpus action by each Plaintiff.
(4)

Due Process Conditions of Confinement Claims

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To the extent that Plaintiffs are attempting to use the Fourteenth Amendment to
challenge the conditions of their confinement, including a lack of mental health treatment,
they must do so under the Eighth Amendment. The Supreme Court has instructed the
federal courts that, whenever possible, they should analyze constitutional claims using an
“explicit textual source of constitutional protection,” rather than using “the more
generalized notion of ‘substantive due process’” under the Fourteenth Amendment.
Graham v. Connor, 490 U.S. 386, 395 (1989). Under the Graham principle, Plaintiffs’
claims are more appropriately construed as an Eighth Amendment claim than a
Fourteenth Amendment substantive due process claim, provided that additional facts are
alleged supporting the elements of an Eighth Amendment cause of action.
D.

Fifth and Fourteenth Amendment Procedural Due Process

Plaintiffs also allege that Defendants have violated their procedural due process
rights by purposely ignoring I.C. § 66-337, in failing to develop and adopt rules and
regulations to govern the treatment of persons in their position, allegedly criminallysentenced mental patients. (Dkt. 2, p. 9.) Plaintiffs argues that “mentally ill convicts may
be received into said facilities only in accordance with Title 66, including § 66-337.”
However, Plaintiffs are not civilly committed patients. Therefore, without an order of
civil commitment, they have no standing to assert that their rights as civilly committed
patients are being violated.
E.

First/Fourth Amendment Unreasonable/Unlawful Seizure

Plaintiffs allege that Defendants have unreasonably and unlawfully seized mental
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patients under the First and Fourth Amendments, because the State requires mentally ill
criminals to “forfeit” the “rights of the civilly committed,” instead “placing them in
criminal punishment conditions.” (Dkt. 2, p. 10.) However, no Plaintiff has brought
forward any facts showing that he was not committed to a term of incarceration by a valid
state criminal judgment; thus, no Fourth Amendment “seizure” claim lies. Neither is there
any case law supporting the position that Plaintiffs ever had “rights of the civilly
committed,” because they were not, in fact, civilly committed at any relevant time period.
Under the facts alleged, Defendants have no duty to provide anything but mental health
treatment commensurate with Eighth Amendment standards to those persons committed
to their custody. Neither have Plaintiffs stated any facts supporting a First Amendment
claim.

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F.

Separation of Powers, Art. 1, §§ 9, 10; Art. 3, § 1

Plaintiffs alleges that the Board of Pardons and Parole, a part of the state executive
branch, has “assumed the role of review of civilly committed individuals, which by law
must be undertaken by the judicial branch.” (Dkt. 2, p. 12.) Plaintiffs’ claim that the
Board’s decision violated the doctrine of the separation of powers is not a cognizable
claim because the doctrine does not apply to state governments. See Sweezy v. State of
New Hampshire, 354 U.S. 234, 255 (1957) (“the concept of separation of powers
embodied in the United States Constitution is not mandatory in state governments”);
Hughes v. Superior Court, 339 U.S. 460, 467 (1950) (“the Fourteenth Amendment leaves
the States free to distribute the powers of government as they will between their
legislative and judicial branches”); Chromiak v. Field, 406 F.2d 502, 505 (9th Cir. 1969)
(federal constitutional doctrine of separation of judicial and executive powers applies
only to operation of federal government and is not binding upon the states). Accordingly,
this is not a cognizable claim.
G.

Ex Post Facto and Bill of Attainder, Art. 1 § 9

Plaintiffs argue that their confinement violates Art. 1 § 9, cl. 3, in the following
manner:
Ex post facto and Attainder and outlawry; . . , . Powers denied congress.
This constitutional violation is made by the passions and prejudice from
interfering with justice equally distributed to all; that prejudice cannot occur
as a result from an impairment or disability and such disability should not
permit his disposition or punishment to be greater than an offender who is
free from disability. As well, such redress and accessibility for redress must
be available to all accused or civilly unstable.
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(Dkt. 2, p. 13.)
The ex post facto provisions of the Constitution “forbid[] the Congress and the
States to enact any law which imposes a punishment for an act which was not punishable
at the time it was committed; or imposes additional punishment to that then prescribed.”
Weaver v. Graham, 450 U.S. 24, 28 (1981) (internal citation and punctuation omitted);
U.S.Const., Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. This prohibition applies to administrative
regulations promulgated pursuant to statutory authority. See Garner v. Jones, 529 U.S.
244, 250 (2000). To be an ex post facto violation, the law or action “must be
retrospective, and it must disadvantage the offender affected by it.” Id. at 29.
Plaintiffs also mention the Bill of Attainder Clause as a constitutional basis for
their claims. See U.S. Const. art. 1, § 9, cl. 3. The Supreme Court has explained that a bill
of attainder is a law that legislatively determines guilt and inflicts punishment upon an
identifiable individual without provision of the protections of a judicial trial. Selective
Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-47
(1984). There are three requirements for a bill of attainder: specification of the affected
person or persons, punishment, and lack of a judicial trial. Id. at 847.
Plaintiffs have stated no facts to support an ex post facto or bill of attainder claim.
In addition, such claims challenge the very fact of confinement, and must be brought in
habeas corpus.
H.

“Collusive Effect” Doctrine

Plaintiffs make an indecipherable argument that the facts set forth in the
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Complaint, “under the collusive effect doctrine (Balla, 595 F.Supp. at 1564), are statutory
violations that allow an excessive or disparate civil commitment from misguided passions
and prejudices (id.), increase the commitment beyond permissible statutory and moral
limits; and, the unlawful action is exacerbated by denial of redress.” In Balla, the federal
district court noted that conditions of confinement could not be considered in isolation,
but should be considered in the whole context of the prison environment, because
particular conditions might be exacerbated by other conditions. This is not a separate
cause of action. If Plaintiffs wish to bring an Eighth Amendment conditions of
confinement claim, they should particularly outline each condition of which they
complain. Here, no facts support an Eighth Amendment conditions of confinement claim,
thus, the Complaint does not meet the standards set forth in Iqbal.
I.

Improper Defendants

Plaintiffs cannot sue the Idaho Department of Correction, the Idaho Commission
of Pardons and Parole, or the Idaho Department of Health and Welfare in federal court,
because they are all state entities entitled to sovereign immunity. In Hans v. Louisiana,
134 U.S. 1 (1890), the Supreme Court held that the Eleventh Amendment prohibits a
federal court from entertaining a suit brought by a citizen against a state. The Supreme
Court has consistently applied the Eleventh Amendment’s jurisdictional bar to states and
state entities “regardless of the nature of the relief sought.” See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
Neither can Plaintiff sue the Idaho District Courts, which are considered “arms of
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the state.” See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th
Cir. 2003) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989) (holding that
“ ‘arms of the State’ for Eleventh Amendment purposes” are not liable under § 1983), and
Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987)
(holding that state courts are arms of the state for Eleventh Amendment purposes)).
5.

Dismissal of Complaint and Leave to File New Individual Complaints
Because Plaintiffs have failed to state a claim upon which relief can be granted, the

Court will dismiss the Complaint without prejudice to each Plaintiff filing a separate
amended complaint to bring Eighth Amendment conditions of confinement claims that
are particular to the manner in which his own criminal sentence is being implemented or
the manner in which mental health treatment is being provided, based on his own
diagnosis; or to bring habeas corpus actions, which must be brought individually. For
these reasons, a class action is not a superior method of fairly and efficiently adjudicating
Plaintiffs’ individual claims, and, thus, Plaintiff Abbott’s motion for class certification
will be denied. See Fed. R. Civ. P. 23(b).
Neither is a multi-plaintiff pro se lawsuit appropriate, given the confidentiality and
security concerns inherent in cases involving inmates’ mental health and medical records.
Because each claim will turn on each inmate’s particular (and confidential) mental health
treatment, the factors for permissive joinder set forth in Federal Rules of Civil Procedure
Rule 20 are not met, because the inmates’ claims do not arise out of the same transaction,
occurrence, or series of transactions or occurrences. Fed. R. Civ. P. 20(a)(1)(A).
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Similarly, a habeas corpus action is a challenge to a single inmate’s conviction and/or
sentence; even co-defendants habeas corpus cases proceed separately because of the
individual nature of the claims. In addition, the Court finds that the inherent security risks
involved with inmates having possession of each other’s medical, mental health, and state
criminal case records outweigh any benefit of joinder.
Plaintiff Abbott will be permitted to file a separate amended complaint in this
action; but each other Plaintiff must file their amended complaint in a separate action, and
will be entitled to take advantage of the original filing date of the joint Complaint for
statute of limitations purposes; each of the four Plaintiffs will be required to pay a portion
of the original filing fee, rather than a new full filing fee. See Fed. R. Civ. P. 21 (court has
discretion to add or drop parties or sever claims).
Each Plaintiff is encouraged to use the new version of the pro se prisoner civil
rights packet or habeas corpus packet to better articulate his claims. For each cause of
action against each defendant, each Plaintiff shall state the following: (1) the name of the
person who personally participated in causing the alleged deprivation of his constitutional
rights; (2) facts showing the person is a state actor (such as state employment or a state
contract); (3) the dates on which the conduct of the defendant allegedly took place; (4) the
specific conduct or action Plaintiff alleges is unconstitutional; (5) the particular
constitutional provision Plaintiff alleges has been violated; (6) facts alleging that the

INITIAL REVIEW ORDER - 18

elements of the violation are met;3 (7) the injury or damages Plaintiff personally suffered;
and (8) the particular type of relief he is seeking from each defendant.
In addition, each Plaintiff should consider stating in his amended complaint
whether he exhausted his administrative remedies by proceeding through all of the levels
of the prison grievance procedure, including appeal to the warden, for each of his claims.
The Court may not make exhaustion of administrative remedies a pleading requirement,
but the amended complaints may be subject to dismissal by motion of the Defendants if
Plaintiffs failed to exhaust their administrative remedies. See Jones v. Bock, 549 U.S. 199,
215-16 (2007) (“failure to exhaust remedies is an affirmative defense, and inmates are not
required to specially plead or demonstrate exhaustion in their complaints”); Title 42
U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available
are exhausted.”); Booth v. Churner, 532 U.S. 731 (2001) (if administrative remedies are
not exhausted prior to the filing of a lawsuit, the lawsuit is subject to dismissal). The
Supreme Court has particularly noted: “[W]e stress the point . . . that we will not read
futility or other exceptions into [ the PLRA's] statutory exhaustion requirements.” Booth
v. Churner, 532 U.S. at 741, n. 6.
Any claims brought in federal court that challenge the fact or duration of a state

3

For example, Plaintiffs must allege facts setting forth the elements of an Eighth
Amendment claim or a First Amendment claim.
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criminal sentence must be raised in a petition for writ of habeas corpus, subject to the
procedural requirements of exhausting state court remedies, filing within the correct
statute of limitations period, and obtaining prior authorization from the United States
Court of Appeals for the Ninth Circuit if a successive federal habeas petition is to be
filed.
ORDER
IT IS ORDERED:
1.

Plaintiffs’ Complaint (Dkt. 2) is DISMISSED without prejudice to each
Plaintiff filing his own habeas corpus action or civil rights action, as may be
appropriate as the circumstances of each Plaintiff and the procedural
requirements may dictate. Plaintiff Abbot may file his amended complaint
in this action. Each other Plaintiff must file his amended complaint in a
separate action (referencing its origin in this action), but will be entitled to
take advantage of the original filing date of the joint Complaint for statute
of limitations purposes. Each Plaintiff will be responsible to pay a portion
of the original filing fee.

2.

Plaintiff’s Applications to Proceed in Forma Pauperis (Dkt. 1) are DENIED
as MOOT.

3.

Plaintiff Abbott’s Motion for Class Certification (Dkt. 3) is DENIED.

4.

Plaintiff Abbot’s Motion for Appointment of Counsel (Dkt. 4) is DENIED
as MOOT.

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5.

Plaintiff Abbott’s Motion for Order to Show Cause (Dkt. 10) is DENIED as
MOOT.

6.

Plaintiff Abbott’s Motion for Default (Dkt. 11) is DENIED.

DATED: August 1, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

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