Campbell v. Cardova et al

Filing 19

MEMORANDUM DECISION AND ORDER granting 13 Defendant's Partial Motion to Dismiss. Defendants Klint Stander and Joseph Cardova are dismissed as defendants, without prejudice, without leave to amend; the Eighth Amendment claims against Defendants CCA Western Properties, Inc., dbaCorrection Corporation of America, Timothy Wengler, and David Agler are dismissed without prejudice, with leave to amend; the First amendment claims against all Defendants are dismissed, without prejudice, with leave to amend; and the Eighth Amendment claims against Defendants Tom Kessler, Ace Thacker, and Does I-IX remain. 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

TYLER JAMES CAMPBELL,
Case No. 1:12-cv-00212-BLW
Plaintiff,

MEMORANDUM AND ORDER

v.
KLINT STANDER, CCA WESTERN
PROPERTIES, INC. DBA
CORRECTION CORPORATION OF
AMERICA, JOSEPH P. CARDOVA,
TOM KESSLER, TIMOTHY
WENGLER, ACE THACKER, DAVID
AGLER, AND DOEX I-IX,
Defendants.

INTRODUCTION
The Court has before it Defendants CCA Western Properties, Tom Kessler,
Timothy Wengler, Acel Thacker, and David Agler’s Partial Motion to Dismiss Plaintiff’s
Complaint (Dkt. 13). On April 30, 2012, Plaintiff Tyler Campbell filed a complaint
against the Defendants alleging that they violated his Eight and First Amendment rights
while he was housed as an inmate at the Idaho Correctional Corporation of America
(“ICC”), in Kuna, Idaho.1 Compl., Dkt. 1.
1

ICC is operated by CCA Western Properties, Inc. dba Correction Corporation of America, a
Maryland corporation, through a contract it has with the Idaho Department of Corrections. Id. ¶ 9.

ORDER - 1

In December 2009, Campbell broke the scaphoid bones in his left wrist.
According to Campbell, he immediately reported the injury to correctional officers but
was not seen by ICC’s medical staff until February of 20102 and did not receive treatment
until May 25, 2010, when he had his first surgery on his wrist. Id. ¶¶ 16-19, 23. Campbell
further alleges that, although he made numerous requests, he was not provided with
adequate care or therapy after the initial surgery. As a consequence he required a second
surgery, which was performed on March 15, 2011. Id. ¶¶ 23-26.
The injury became infected following the second surgery. Campbell says, despite
his continued requests, he was again denied adequate follow-up treatment, gauze and pain
medication. Id. ¶¶ 27-31. Defendant Doctor David Agler told Campbell he needed
another surgery but would have to wait until his release to have it performed. Id. ¶ 33.
Campbell responded to this news by telling Defendants he was going to bring a lawsuit
against them for inadequate medical treatment. Id.
Campbell was kept in medical isolation from October 3, 2011, to October 14,
2011. Campbell maintains Defendants kept him in medical isolation in retaliation for his
statements about filing a lawsuit. Id. ¶¶ 34-35.
On October 17, 2011, Campbell’s wrist was examined by Dr. Watkins, who told
Defendants Campbell needed to be seen again in one week Id. ¶ 36. Campbell was not
seen by Doctor Watkins again until November 16, 2011. Id. Campbell was released from

2

The initial complaint states “Campbell was seen by ICC medical staff in February 2009.” Dkt. 1
¶ 19. Due to the date of Campbell’s alleged injury, in December of 2009, the Court believes Campbell
meant to state he was seen by medical staff in February of 2010.

ORDER - 2

ICC on December 16, 2011. Id. ¶ 37.Campbell alleges that at the time of his release he
still had not been adequately treated and had a gaping and infected wound on his arm. Id.
The Court issued summons to all Defendants on June 22, 2012. Summons, Dkt. 3.
All defendants except Klint Stander and Joseph Cardova waived service of process on
July 12, 2012. Waiver of Service, Dkt. 4. Defendants’ attorney did not accept service on
behalf of Stander and Cardova because they are no longer employees of CCA. Defs’
Opening Br. at 2-3, Dkt. 13. Campbell still has not served process on Stander and
Cardova and did not request more time to do so until he filed a response to the motion to
dismiss on May 28, 2013. Pl. Resp. Br. at 12, Dkt. 14.
The Defendants have moved for (1) dismissal of Defendants Stander and Cardova
for insufficient service of process; (2) dismissal of the Eight Amendment claim against
CCA, Wengler, and, Agler for failure to state a claim; and (3) dismissal of the First
Amendment claim against all Defendants, also for failure to state a claim. Dkt. 13.
ANALYSIS
I.

Dismissal of Defendants Stander and Cardova
Rule 4(m) of the Federal Rules of Civil Procedure requires the plaintiff to serve all

defendants with process within 120 days of filing the complaint. Fed. R. Civ. P. 4(m).
However, a court should extend the time period for serving process upon a showing of
good cause for the defects in service. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001).
Courts should determine whether a plaintiff has shown good cause on a case-by-case
basis. See id. In making the determination, a court may consider many factors including
whether: “(a) the party to be served received actual notice of the lawsuit; (b) the
ORDER - 3

defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his
complaint were dismissed.” Id. Absent a showing of good cause, courts still have the
discretion to extend the time period for serving process upon a showing of “excusable
neglect.” Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). Id.
The Court cannot find good cause for Campbell’s defective service on Stander and
Cardova. A year has passed since the Complaint was filed, and nearly a year has passed
since defense counsel refused to accept service for Stander and Cardova. Yet, Campbell
provides no justification for his failure to serve these two defendants. Campbell has
provided no evidence that Stander and Cardova attempted to evade service, or that they
took any action that contributed to the delay; he has only stated that “[e]fforts to serve
those defendants are ongoing.” Dkt. 14, p.12. Campbell also fails to state that he would
suffer prejudice if Stander and Cardova were dismissed. Given Campbell’s failure to
show notice, prejudice, or any justification for the insufficient service, the Court cannot
find good cause for the deficient service of process.
Campbell responds that Rule 4(m) gives “courts greater leeway to preserve
meritorious lawsuits despite untimely service of process.” United States v. 2,164
Watches, 366 F.3d 767, 772 (9th Cir. 2004). If a plaintiff fails to show good cause, the
Court may exercise its discretion to extend time for service under Rule 4(m). Efaw v.
Willaims, 473 F.3d 1038, 1041 (9th Cir. 2007). But the Court’s discretion is not limitless.
Even if the plaintiff cannot show good cause, a plaintiff must still demonstrate why his
inadvertence is excusable to receive more time to serve a defendant. See U.S. for Use and
Benefit of Familian Northwest, Inc. v. RG&B Contractors, Inc., 21 F.3d 952, 956 (9th
ORDER - 4

Cir. 1994). Here, however, Campbell makes no attempt to explain how his failure to
serve Standler and Campbell over the past year is excusable. Because the Court can find
neither good cause nor excusable neglect, it will grant the Defendant’s motion to dismiss
Stander and Cordova from this suit, without prejudice.
II.

Motion to Dismiss Pursuant to Rule 12(b)(6) for Failure to State a 42
U.S.C. § 1983 Claim
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

of the claim showing that the pleader is entitled to relief,” in order to “give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007). While a complaint
challenged in a Rule 12(b)(6) motion to dismiss “does not need detailed factual
allegations,” it must set forth “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. at 555. To survive a
motion to dismiss, the factual allegations, accepted as true, must also state a claim “that is
plausible on its face.” Twombly, 550 U.S. at 570. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is
not akin to a “probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely
consistent with” a defendant's liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’ ” Id. at 557.

ORDER - 5

If the complaint is dismissed, the plaintiff generally should be afforded leave to
amend unless it is beyond doubt that the complaint “could not be saved by any
amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)(issued 2 months
after Iqbal). The Ninth Circuit has held that “in dismissals for failure to state a claim, a
district court should grant leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not possibly be cured by the allegation
of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service,
Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but
whether he “is entitled to offer evidence to support the claims.” Diaz v. Int’l Longshore
and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)(citations omitted).
A plaintiff may bring a § 1983 claim against a state or local government entity
and/or individual agents. To succeed on a § 1983 claim against a government entity, a
plaintiff must show: “(1) that he possessed a constitutional right of which he was
deprived; (2) that the municipality had a policy; (3) that this policy “amounts to
deliberate indifference” to the plaintiff's constitutional right; and (4) that the policy is the
“moving force behind the constitutional violation.” Oviatt By & Through Waugh v.
Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)(citing City of Canton, 489 U.S. 378, 389-91
(1989).
To succeed on a § 1983 against individual agents, the plaintiff must show: “(1) the
defendants acted under color of law, and (2) their conduct deprived [the plaintiff] of a
constitutional right” Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).
Individual agents can be liable in an § 1983 claim either personally or in their official
ORDER - 6

capacity. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). At the pleading stage, a
court need not determine in which capacity a defendant is liable; to survive a motion to
dismiss the plaintiff need only show the individual could be liable in either capacity.
McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986). Individual agents can be
personally liable if they directly participated in the deprivation of constitutional rights,
Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991), or if they caused the
deprivation to occur. 795 F.2d at 783. Claims against individuals in their official
capacity, on the other hand, “represent only another way of pleading an action against an
entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services,
436 U.S. 658, 690, n. 55 (1978).Thus, when bringing a § 1983 action against individual
agents in their official capacity, the plaintiff must show a policy or practice was a
“moving force” in the constitutional deprivation. 473 U.S. at 165-66.
A.

Eighth Amendment Claims
Campbell’s first contention is that the medical treatment provided to him by the

Defendants constituted cruel and unusual punishment in violation of the Eighth
Amendment. “[D]eliberate indifference to serious medical needs of prisoners constitutes
the “unnecessary and wanton infliction of pain,” proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104-05, (1976)(citation omitted). However, an
unintentional failure to supply a prisoner with satisfactory medical care does not
constitute a violation to the Eighth Amendment, even if it does cause pain or harm. Id.
The purposeful acts or omissions required for inadequate medical care to become an
violation of a prisoner’s Eighth Amendment rights may be manifested either “by prison
ORDER - 7

doctors in their response to the prisoner's needs or by prison officials in intentionally
denying or delaying access to medical care, or [ ] interfering with the treatment once it is
prescribed.” or Id.
1. Eighth Amendment Claims Against CCA
The Defendants have moved for the dismissal of the Eight Amendment claim
against CCA due to the failure of Campbell to meet the pleading requirements for a §
1983 claim against CCA, a private corporation performing a government function. To
succeed on a § 1983 claim against a government entity, a plaintiff must show: “(1) that he
possessed a constitutional right of which he was deprived; (2) that the municipality had a
policy; (3) that this policy “amounts to deliberate indifference” to the plaintiff's
constitutional right; and (4) that the policy is the “moving force behind the constitutional
violation.” Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.
1992)(citing City of Canton, 489 U.S. 378, 389-91 (1989).
It is appropriate for a court to dismiss a § 1983 against a government entity if the
plaintiff has failed to clearly identify the policy that led to the deprivation of his
constitutional right. See Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1179 (E.D. Cal.
2005). On the other hand, a court may deny a motion to dismiss a § 1983 claim when a
policy has been identified, “even if the claim is based on nothing more than a bare
allegation that the individual [ ] conduct conformed to official policy, custom, or
practice.’” Lee v. City of Los Angeles, 250 F.3d 668, 682-83 (9th Cir. 2001)(quoting
Karim–Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir.1988)).

ORDER - 8

In Neveu v. City of Fresno, the court held the plaintiff had not satisfied the policyidentification requirement of a § 1983 claim with his statement that the Police Chief of
the City of Fresno had acted within his policymaking authority when violating his First
Amendment rights. 392 F. Supp. 2d at 1178-79. The plaintiff in Nevue had not defined or
described what the purported policy was that the Police Chief “implemented and/or
created” that caused the deprivation of his rights and the court could not infer what the
policy was from the complaint. Id.
By contrast, the plaintiff in Lee v. City of Los Angeles identified the defendant’s
practice of “rounding up people for arrest and/or extradition without taking proper efforts
to ensure that the particular person in custody was actually the person being sought” as
the driving force behind the violation of his Fourth Amendment rights. Id. at 682. In
overturning the district court’s dismissal of the §1983 claim, the Lee court concluded this
plain statement satisfied the policy-identification requirement, at least at the pleading
stage. See id.
In this case, Campbell’s complaint does not clearly identify a CCA policy that led
to the denial of his Eight Amendment rights. A court may draw “reasonable inferences”
from a complaint. See Iqbal 556 U.S. at 678-81. However, like the court in Neveu, the
Court cannot infer what specific policy or practice the driving force behind Campbell’s
claim from the Campbell’s descriptions of his own medical treatment. Campbell must
clearly define the policy at issue in order to put the Defendants on notice of what legal
theory he is arguing and on what grounds. Because Campbell’s complaint does not satisfy

ORDER - 9

the policy-identification requirement, the Court must dismiss the Eighth Amendment
claim against CCA, without prejudice, and with leave to amend.
2. Eighth Amendment Claims against Wengler and Agler
An individual can be liable in an § 1983 claim either personally or in their official
capacity. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). However, a § 1983 claim
against an individual in their official capacity is, “only another way of pleading an action
against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 690, n. 55 (1978). Because the Court has determined that
Campbell’s Eighth Amendment claim against CCA is deficient, the Eighth Amendment
claims against Wengler and Agler, in their official capacity as employees of CCA, are
also deficient. The Court will therefore only consider the personal liability of Wengler
and Agler in regards to the Eighth Amendment claims against them.
1. Eighth Amendment Claim against Wengler
A supervisor can be liable in a § 1983 claim if the supervisor directly participated
in or had “knowledge of and acquiescence[d] in unconstitutional conduct by his or her
subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). To survive a motion to
dismiss, the “plaintiff must allege facts, not simply conclusions, that show that an
individual was personally involved in the deprivation of his civil rights.” Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Respondeat superior liability is not
available in § 1983 suits. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
The court in Iqbal dismissed the plaintiff’s § 1983 claim because it found the
plaintiff’s statements that the defendants were “‘instrumental’ in adopting and executing”
ORDER - 10

a discriminatory policy were mere legal conclusions and therefore not entitled to be taken
as true. Id. In contrast, the court in Starr v. Baca found the plaintiff’s allegations were
enough to survive a motion to dismiss a § 1983 claim against the Sheriff defendant. 652
F.3d at 1207. The plaintiff in Starr laid out specific facts to demonstrate the Sheriff’s
indifference; the complaint alleged numerous prior incidents of death or injury caused by
the Sheriff’s subordinates, it stated the dates and means by which the Sheriff was
informed of these incidents, and alleged the Sheriff’s failure to act to prevent further
incident. Id.
Campbell’s complaint only specifically mentions Wengler once. Dkt. 14, ¶ 14
(“ICC maintains is own in-house medical unit, under the direction and instruction of
CCA, Warden Wengler, Ace Thacker, and Does I-X.”).Campbell is correct in that there
are many ways in which a supervisor may be found liable in a § 1983 claim. See e.g.
Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001)(holding
supervisor “could be held liable in his individual capacity if he knowingly refused to
terminate a series of acts by others, which he knew or reasonably should have known
would cause others to inflict a constitutional injury”). Starr, 652 F.3d 1202, 120506(“[S]upervisor's participation could include his own culpable action or inaction in the
training, supervision, or control of his subordinates, his acquiescence in the constitutional
deprivations of which the complaint is made, or conduct that showed a reckless or callous
indifference to the rights of others.”)(internal quotations omitted). Campbell, however,
has not identified in which of these many ways Wengler is liable or how or when that
liability arose. Campbell’s complaint merely states that all of the Defendants, including
ORDER - 11

Wengler, were “deliberately indifferent” to Campbell’s medical needs, and that the
indifference violated his Eighth Amendment rights. Dkt. 1, ¶¶ 45-46.
Campbell’s complaint lacks the specificity that made the deliberate indifference
claim in Starr sufficient. See 652 F.3d at 1207. Similar to the statements in Iqbal,
Campbell’s Eighth Amendment claim against Wengler states a legal conclusion lacking
factual allegations to support it. See 556 U.S. at 676.Campbell has not adequately alleged
that Wengler was either personally involved in or that he acquiesced in the denial of his
Eight Amendment rights. Campbell has therefore not met the pleading requirements for
his Eighth Amendment claim against Wengler, and the Court must dismiss the claim
without prejudice, with leave to amend.
2. Eighth Amendment Claims against Agler
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
“unnecessary and wanton infliction of pain,” proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104-05, (1976)(citation omitted). Inadvertent failures to
provide adequate medical care, or divergences in opinions over diagnostic techniques or
treatments, on the other hand, are not appropriate Eighth amendment issues. Id.
In his complaint Campbell’s alleges he reported his injury to and repeatedly sent
request for medical treatment to Agler, among others. Compl, ¶ 18, 40, Dkt. 1. Campbell
also alleges that his repeated requests made to all the Defendants for pain medication and
appropriate medical treatment were either ignored or denied. Id. ¶¶ 23-31. Finally,
Campbell asserts Agler’s actions constituted deliberate indifference to his medical needs
in violation of the Eighth Amendment. Id. ¶¶ 45-46. It is not clear from the complaint
ORDER - 12

how exactly Agler was first informed of Campbell’s request or the role Agler played in
Campbell’s treatment. It appears from the complaint that Campbell was seen by medical
professionals upwards of eight times, including at least two surgeries, while he was at
ICC. The only indication the complaint gives that Agler had knowledge of, or was
personally involved with, Campbell’s medical care is Campbell’s allegation that Agler
told him he needed to have another surgery, but that he would have to wait until his
release to have it performed. Id. ¶ 33. This would constitute deliberate indifference under
the Eighth Amendment if Agler was a decision-maker. However, the complaint does not
adequately allege that Agler had any role in deciding whether and when Campbell would
receive medical care.
Campbell’s assertion that these medical treatments and his related requests for
different or better treatment demonstrates deliberate indifference by Agler is, like his
claim against Wengler, an unsupported legal conclusion without sufficient factual
allegations to support it. Further, Campbell’s complaint also fails to allege facts to raise
this claim from at most a medical malpractice action to the level of purposeful
indifference. Because the claim, as it is written, does not satisfy the pleading requirement
for an Eighth Amendment claim against Agler, the Court must dismiss this claim, without
prejudice, with leave to amend.
III.

First Amendment Claim

To survive a motion to dismiss a First Amendment § 1983 claim, a complaint must
include: “(1) An assertion that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the
ORDER - 13

inmate's exercise of his First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
Cir. 2005). To meet the fourth element of this test, a plaintiff need not alleged a “total
chilling of his first Amendment rights” at either the trial or the pleading stage. Id. A
plaintiff’s straightforward assertion that he felt his rights were chilled, even if they were
not completely silenced, is enough to satisfy the fourth element. Id.
The Defendants argue that Campbell has not satisfied the bare minimum pleading
requirements of elements four and five of his First Amendment claim and accordingly
have moved to dismiss this claim in regards to all Defendants. The Defendants also
contend that Campbell’s alleged continual requests for medical care and pain medication
demonstrate that his First Amendment rights were not chilled.
In Rhodes, the court did not dismiss the plaintiff’s § 1983 claim because it did not
want the defendants to escape liability simply because the plaintiff was particularly
tenacious. Id. Even though the plaintiff’s persistent complaints appeared to demonstrate
his First Amendment rights were not chilled, the plaintiff in Rhodes, still included a clear
statement that he felt his First Amendment rights had been chilled by the defendants in
his complaint. Id.
Campbell’s complaint clearly states that the Defendants retaliated against him, but
it does not assert that the Defendant’s retaliation had any sort of chilling effect on him.
Campbell’s complaint also never plainly states that the Defendant’s had no legitimate
reason for placing him in medical isolation. The Court can make reasonable inference
from a plaintiff’s complaint, however, the Court cannot infer that Campbell actually
ORDER - 14

experienced a chilling effect after the Defendant’s alleged retaliation. Accordingly,
Campbell has not met the minimum pleading requirement for a First Amendment claim.
The Court must therefore dismiss this claim with regards to all defendants, without
prejudice, with leave to amend.
ORDER
IT IS ORDERED that Defendant’s Partial Motion to Dismiss Plaintiffs’
Complaint (Dkt. 13) is GRANTED. As explained above, Defendants Klint Stander and
Joseph Cardova are dismissed as defendants, without prejudice, without leave to amend;
the Eighth Amendment claims against Defendants CCA Western Properties, Inc., dba
Correction Corporation of America, Timothy Wengler, and David Agler are dismissed
without prejudice, with leave to amend; the First amendment claims against all
Defendants are dismissed, without prejudice, with leave to amend; and the Eighth
Amendment claims against Defendants Tom Kessler, Ace Thacker, and Does I-IX
remain.

DATED: August 16, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

ORDER - 15