Kesling v. Ada County Sheriff's Office

Filing 17

INITIAL REVIEW ORDER re 12 APPLICATION for Leave to Proceed in forma pauperis filed by Shawn M Kesling, No later than 21 days from the date of this Order, Plaintiff shall file anamended complaint to cure the deficiencies noted herein, or the case willlikely be dismissed without prejudice.. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SHAWN M. KESLING,
Case No. 1:12-cv-00075-CWD
Plaintiff,
v.

INITIAL REVIEW ORDER

ADA COUNTY SHERIFF’S OFFICE,
Defendant.

The Court previously withheld its mandatory initial review of Plaintiff’s pro se
Prisoner Complaint until he had an opportunity to notify the Court whether he intended to
represent himself or to retain counsel. (Dkt. 8.) Plaintiff responded by filing a “Notice of
Intent to Proceed Under Representation of Counsel,” in which he indicated that he was
still “awaiting a decision” from a law firm. (Dkt. 9.) The Court thereafter set a deadline
for Plaintiff, at his request, to submit an amended complaint, but that deadline has now
expired without an appearance from counsel or the filing of an amended complaint by
Plaintiff. (Dkt. 14.)
Accordingly, the Court will now review Plaintiff’s original Complaint to
determine whether it or any of its claims are subject to summary dismissal under 28
U.S.C. § 1915 and § 1915A.

INITIAL REVIEW ORDER - 1

BACKGROUND
Plaintiff, now a prisoner at the Idaho Correctional Center, alleges in his Complaint
that he was infected with the Hepatitis C virus (“HCV”) when he was detained at the Ada
County Jail between March 20, 2011, and December 16, 2011. (Complaint, Dkt. 1, p. 1.)
According to Plaintiff, he was infected as a direct result of the Jail’s inadequate sanitation
practices, which included re-issuing improperly sterilized razors and employing known
HCV-positive workers in the Jail’s kitchen. (Id.) Plaintiff contends that, before he was
housed at the Jail, he had a “clean bill of health, including being free of HCV,” but
because of a previous liver condition, “it [is] now a near certainty, according to doctors,
that the onset of HCV will ultimately require a liver transplant if treatment is
unsuccessful.” (Id.)
Plaintiff brings his Complaint under 42 U.S.C. § 1983 against the “Ada County
Sheriff’s Office,” asserting that he was subjected to cruel and unusual punishment, in
violation of his rights under the Eighth Amendment, and denied equal protection of the
laws under the Fourteenth Amendment. (Dkt. 3, p. 2.) He seeks compensatory and
punitive damages, “including but not limited to costs of current and future medical care.”
(Id. at 3.)
STANDARD OF LAW
The Court is required to review all prisoner 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. § 1915A. The Court must dismiss a
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prisoner or in forma pauperis 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); § 1915A(b).
A complaint should also be dismissed under Rule 8 of the Federal Rules of Civil
Procedure if the factual assertions in the complaint, taken as true, are insufficient for the
reviewing court plausibly “to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state
a valid claim under § 1983, a plaintiff must allege that a person acting under color of state
law violated his rights protected by the Constitution or created by federal statute.
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). There is no respondeat superior
liability under § 1983, meaning that a state official is not liable unless he or she
personally participated in the alleged constitutional violations or, as a supervisor, knew of
and failed to prevent those violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
DISCUSSION
The Court finds that regardless whether Plaintiff’s factual allegations could state a
colorable claim under the Eighth and Fourteenth Amendments, the Complaint is subject
to summary dismissal because Plaintiff has not yet named a proper defendant. A civil
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rights plaintiff must generally name the specific person or persons acting under color of
state law who the plaintiff deems directly responsible for the constitutional injury that he
or she has suffered. The only defendant that Plaintiff has named – the Ada County
Sheriff’s Office – is a subdivision of Ada County and is not a separate legal entity that
can be sued under § 1983. Cf. Mahoney v. Kitsap County Jail, 474 Fed. Appx. 573 (9th
Cir. 2012) (holding that a “jail is not a legal entity subject to suit under § 1983”).
Under some circumstances, a local governmental entity like Ada County can be a
proper defendant in a § 1983 lawsuit. See Monell v. Dep’t. of Soc. Serv. of New York, 436
U.S. 658, 694 (1978). But local governments are not liable simply because they employ
the person whom the plaintiff claims violated his or her constitutional rights. To state a
claim against a local governmental entity, the plaintiff must instead allege that the entity
had a policy, custom, or practice that was the moving force behind the constitutional
injury. Monell, 436 U.S. at 694. This may include “practices so persistent and widespread
as to practically have the force of law.” Connick v. Thompson, 131 S.Ct. 1350, 1359
(2011).
Here, Plaintiff has not alleged facts from which a factfinder could reasonably
conclude that staff at the Jail were following an Ada County policy, custom, or practice
when the Jail’s allegedly insufficient hygiene practices resulted in the transmission of
HCV to Plaintiff. Even if the Court were to construe the Defendant in this action to be
Ada County instead of the Sheriff’s Office, then, it would nonetheless find that Plaintiff
has failed to state a claim on which relief may be granted.
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Moreover, if Plaintiff believes that Sheriff Gary Raney, as the official in charge of
managing the Jail’s day-to-day affairs at the time, was responsible for his injury, he must
allege facts tending to show that Raney had knowledge of and acquiesced in his
subordinates’ unconstitutional conduct, or that he recklessly ignored the rights of the
inmates under his care. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). That is, “[a]
supervisor can be liable in his individual capacity for his own culpable action or inaction
in the training, supervision, or control of his subordinates; for his acquiescence in the
constitutional deprivation; or for conduct that showed a reckless or callous indifference to
the rights of others.” Id. at 1208 (citing Watkins v. City of Oakland, 145 F.3d 1087, 1093
(9th Cir. 1998) (internal alteration and quotation marks omitted)). Plaintiff has presently
offered no allegations that would support a theory of liability against Raney.
For these reasons, the Complaint is vulnerable to dismissal under 28 U.S.C.
§ 1915(e)(2) and § 1915A(b). Plaintiff will first be given leave to amend his Complaint to
set forth a policy claim against Ada County, or he may identify and name as defendants
the individual Ada County Jail staff members who made the decisions or engaged in the
practices that Plaintiff believes created a substantial risk that HCV would be transmitted
from inmate to inmate. This may include Sheriff Raney, but only if Plaintiff can state
facts that sufficiently tie Raney to the alleged constitutional injury.
Failure to allege facts showing a policy-based claim lies against the County, or
failure to name a proper individual defendant who personally participated in the alleged

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violation, will likely result in dismissal of this case.1
Plaintiff’s Application to Proceed In Forma Pauperis will be deemed moot, but the
Court will revisit the Application if Plaintiff files an amended complaint. Even if Plaintiff
is granted in forma pauperis status, he will still be required to pay the full $350.00 filing
fee, but it will be taken out of his prison trust account in installments rather than up front
at filing. 28 U.S.C. § 1915(b).
ORDER
IT IS ORDERED:
1.

Plaintiff’s Application to Proceed In Forma Pauperis (Dkt. 12) is DEEMED
MOOT, subject to reconsideration in the event that Plaintiff files an
amended complaint. Plaintiff should submit a new inmate trust account
statement with an amended complaint that shows his updated financial
information.

2.

No later than 21 days from the date of this Order, Plaintiff shall file an
amended complaint to cure the deficiencies noted herein, or the case will
likely be dismissed without prejudice. Together with any amended
complaint, Plaintiff shall file a motion, labeled “Motion to Proceed with

1

If Plaintiff can state a colorable claim for relief against at least one proper defendant, and the
Court allows him to proceed, he may later seek to include additional defendants, if any, whose identities
are presently unknown to him but who may be revealed during the discovery process.
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Amended Complaint.”2
DATED: January 23, 2013

Honorable Candy W. Dale
United States Magistrate Judge

2

Plaintiff has sent a letter to the Court asking whether he may use lined notebook paper to submit
his filings because ICC no longer provides blank 8 ½ by 11 inch indigent paper. (Dkt. 16.) The Court will
accept filings from pro se prisoners that are legible and written neatly on any type of common white paper
that can be scanned and saved on the Court’s electronic CM/ECF docket.
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