Hoak v. Attorney General et al

Filing 11

INITIAL REVIEW ORDER denying 7 Motion ; denying 8 Motion ; denying 9 Motion. Plaintiff's Motion to Proceed in Forma Pauperis (Dkt. 1) is GRANTED. Plaintiff's request for appointment of counsel (contained in the Complaint)is DENIED without prejudice. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LARRY M. HOAK,
Plaintiff,

Case No. 1:12-cv-00550-BLW
INITIAL REVIEW ORDER

vs.
ATTORNEY GENERAL, WARDEN
BLADES, MEDICAL CORIZON, TINA
WILLIAMS, STACEY, NATE
CHANEY, NATE, DEANNA, HELEN
SMITH, LORIE, MARK CUSHING,
RUTH, P.A. MITCHELL, P.A.
HOLMES, RONA SIEGERT, JOSEPH
CORDONA, BRENT RENKI, DR.
KATHATAIN, DR. CLARK, DR.
SARLERIS, WARDEN SMITH, MARY
HICKS, DR. WINNERY,
Defendants.

The Complaint of Plaintiff Larry M. Hoak was conditionally filed by the Clerk of
Court on November 2, 2012, due to his status as an inmate and his request for in forma
pauperis status. The Court is required to review the Complaint to determine whether
summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A.
Having reviewed the record, and otherwise being fully informed, the Court enters

INITIAL REVIEW ORDER - 1

the following Order.
REVIEW OF COMPLAINT
1.

Standard of Law
Each complaint filed by a prisoner seeking relief against a governmental entity or

its employees must be reviewed by the Court to determine whether summary dismissal is
appropriate. 28 U.S.C. § 1915A. The Court must dismiss a complaint or any portion
thereof that states a frivolous or malicious claim, that fails to state a claim upon which
relief can be granted, or that seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A.
The Court’s review of the Complaint is governed by two United States Supreme
Court cases requiring a plaintiff to state facts, and not just legal theories, in a complaint.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct.
1937 (2009). In Iqbal, the Court made it clear that “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” 129 S.Ct.
at 1949. The United States Court of Appeals for the Ninth Circuit explained that these
cases set forth two important pleading standards:
First, to be entitled to the presumption of truth, allegations in a complaint or
counterclaim may not simply recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair notice and to enable the opposing
party to defend itself effectively. Second, the factual allegations that are taken as true
must plausibly suggest an entitlement to relief, such that it is not unfair to require the
opposing party to be subjected to the expense of discovery and continued litigation.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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All claims must have arisen within the two-year statute of limitations period prior
to the filing of the original Complaint. See Wilson v. Garcia, 471 U.S. 261 (1985) (later
overruled only as to claims brought under the Securities Exchange Act of 1934, not
applicable here); Idaho Code § 5-219. The statute of limitations is tolled while the inmate
exhausts administrative grievance procedures pursuant to the Prison Litigation Reform
Act (PLRA). Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
2.

Plaintiff’s Rule 10(c) Motions (Dkt. 7, 8, 9)
Plaintiff has filed several motions requesting that Federal Rule of Civil Procedure

10(c) be applied to his Complaint and his numerous exhibits submitted in support of his
Complaint. Rule 10(c) provides:
A statement in a pleading may be adopted by reference elsewhere in
the same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.
As the Rule states, a “written instrument” is considered a part of a pleading.
However, the items Plaintiff wishes to incorporate into his pleading are not “written
instruments” such as copies of contracts or negotiable instruments. See Rose v. Bartle,
871 F.2d 331, 339 n. 3 (3d Cir.1989) (internal quotation omitted) (quoting 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1327) (holding that an
attached affidavit was not a “written instrument” under Rule 10(c) and thus was not
properly considered part of the pleadings); Nkemakolam v. St. John's Military School,
876 F.Supp.2d 1240, 1246-47 (D.Kan. 2012) (an x-ray and a photograph were “not

INITIAL REVIEW ORDER - 3

intended as assertions of fact,” but were “clearly intended as evidence to support specific
factual allegations by plaintiffs”). Plaintiff’s exhibits are medical records, a surgery
photograph, inmate concern forms, prison grievances, and letters.
The Court regularly permits pro se litigants to affix exhibits to their pleadings.
However, the Court does not consider the exhibits to be “incorporated by reference” into
the complaint such that a defendant would be required to respond to the exhibits when
answering such a complaint. To the extent that Plaintiff’s exhibits are legible and relevant
to Plaintiff’s claims, the Court has considered them with regard to whether Plaintiff has
stated a claim, or would be able to amend his Complaint to state a claim, pursuant to the
Court’s duty to screen cases under 28 U.S.C. §§ 1915 and 1915A.
Accordingly, these Motions will be denied, and the exhibits will remain as exhibits
only, and will not be incorporated by reference into the Complaint such that Defendants
must respond to the exhibits in their Answer. The exhibits need not be filed again by
Plaintiff, and the parties may refer to them at appropriate times in the course of this case,
as needed.
Plaintiff shall not file any further exhibits, however, until the case reaches an
appropriate stage to do so, such as in support of a response to a motion to dismiss or for
summary judgment. Plaintiff is reminded that discovery is not to be filed with the Court,
but only exchanged between parties at the appropriate time.

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3.

Review of Claims
A.

Standard of Law

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). Vague and conclusory allegations of official participation in civil rights violations
are not sufficient. See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th
Cir. 1982). Rather, “[l]iability under section 1983 arises only upon a showing of personal
participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (there
is no respondeat superior liability under §1983).
In Starr v. Baca, the United States Court of Appeals for the Ninth Circuit clarified
that a supervisory defendant may be held liable under § 1983 if there is “a sufficient
causal connection between the supervisor’s wrongful conduct and the constitutional
violation.” 652 F.3d at 1207. Allegations sufficient to show a causal connection include:
(1) “setting in motion a series of acts by others”; (2) “knowingly refus[ing] to terminate a
series of acts by others, which [the supervisor] knew or reasonably should have known
would cause others to inflict a constitutional injury”; (3) failing to act or improperly
acting in “the training, supervision, or control of his subordinates”; (4) “acquiesc[ing] in
the constitutional deprivation”; or (5) engaging in “conduct that showed a reckless or
callous indifference to the rights of others.” Id. at 1207-08 (internal quotations and
punctuation omitted).
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To state a claim under the Eighth Amendment, Plaintiff must allege facts showing
that he is incarcerated under conditions posing a substantial risk of serious harm. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff must also state facts showing that
Defendants were deliberately indifferent to the substantial risk of serious harm. Deliberate
indifference exists when an official knows of and disregards a condition posing a
substantial risk of serious harm or when the official is “aware of facts from which the
inference could be drawn that a substantial risk of harm exists,” and actually draws the
inference. Id., 511 U.S. at 837.
B.

Summary of Allegations

Plaintiff alleges that he received inadequate dental care because the dentist decided
to pull Plaintiff's problematic teeth, rather than fixing them. Plaintiff also alleges that he is
receiving inadequate care for his diabetes, and, particularly, that he has not been given
special shoes for his foot problems arising from diabetes. Another claim against several
Defendants surrounds a bleeding ulcer. Plaintiff also brings various claims regarding
receiving medication.1 The acts complained of occurred between 2009 and 2012, some of
which are beyond the statute of limitations. (Complaint, Dkt. 3, filed November 2, 2012.)

1

Claims that he was not given proper pain medication are mentioned in Grievances from June 15,
2009, March 2010 and April 2010. (Dkt. 1, pp. 90-92.) These dates are beyond the statute of limitations.
INITIAL REVIEW ORDER - 6

C.

Individual Defendants
(1)

Dentist Mark Cushing

In the Complaint, Plaintiff states: “I almost died twice when Mark Cushing pulled
my abscessed bottom right lower teeth[;] it almost killed me.” (Dkt. 3, p. 9.) A Grievance
that was returned to Plaintiff on June 14, 2010, further explains: “I’ve had serious
problems with the work (Mark Cushing) has done to my mouth. My mouth, jaw bone, the
nerve damage done to my bottom left side, my teeth hurt on the front, left to right, my two
upper front teeth. My mouth is a mess.” (Complaint Exhibits, Dkt. 1, p. 59.) This entire
set of complaints is beyond the statute of limitations period (only claims from between
roughly October 2, 2010, to November 2, 2012 may be pursued).
Plaintiff alleges that, in April 2012, Dr. Cushing extracted Plaintiff’s teeth rather
than saving them or sending Plaintiff to a specialist who could have saved the teeth.
Plaintiff has submitted Grievances and other documents showing that his teeth were not
healthy enough to be saved, and that the only options were keeping the existing partial
that attached to the lower teeth, or pulling the teeth and be fitted with a complete lower
denture. (Dkt. 1, Exhibits, p. 66.)
Without more, Plaintiff has not stated sufficient allegations to support an Eighth
Amendment deliberate indifference claim. Simply making a choice between extraction of
a patient’s damaged teeth and another resolution of his dental problems is not a
constitutional concern.

INITIAL REVIEW ORDER - 7

Plaintiff also alleges that, after Dr. Cushing pulled the four teeth using novocaine,
Plaintiff was not given narcotic pain medication to address pain issues after that
procedure was performed. Plaintiff alleges that he suffered from pain for five days.
Plaintiff alleges that Dr. Cushing chose to give him a different medication because other
employees had accused him of “cheeking” (not swallowing) other medications. When
Plaintiff wrote an Offender Grievance Form about this issue, employee Jennifer Grace
wrote back: “D[ue] to your history of non compliance and being caught cheeking our
protocol is not to provide additional narcotics. You were on an anti-inflammatory which
would relieve dental associated pain.” (Exhibit to Complaint, Offender Concern Form of
4-20-13.) A Grievance Form, No. II 120000474, complained that Plaintiff’s mouth and
chin were infected on March 30, 2012. Plaintiff was provided with Penicillin for the
infection.
Plaintiff has provided no allegations that would support a deliberate indifference
claim against Dr. Cushing regarding his decision to follow the medical unit’s guidance
regarding providing Plaintiff with an anti-inflammatory type of pain medication rather
than a narcotic pain medication when Plaintiff reportedly had been misusing his
medication. Plaintiff was also provided with an antibiotic for infection. While Plaintiff
contests the medical unit’s conclusion that he was misusing his medication, that is not at
issue regarding Dr. Cushing, because nothing shows that Dr. Cushing was personally
aware that the medical unit’s conclusions were incorrect, and nothing shows that Dr.
Cushing chose a course of medication based on deliberate indifference rather than
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appropriate medical judgment. The response to the Grievance states: “Your case has been
thoroughly investigated and there are multiple pages of documentation stating you were
guilty of ‘cheeking’ medication on 3/21/12,” which supports Dr. Cushing’s decision. (Id.)
Accordingly, Plaintiff has failed to state a claim against Dr. Cushing for any acts that
occurred within the statute of limitations period.
(2)

Warden Smith

Plaintiff alleges that Warden Smith did nothing after Plaintiff’s teeth were pulled.
This does not state an actionable claim, because no allegations show that Warden Smith
aided or supervised the dentist in pulling out Plaintiff’s teeth, or, for that matter, that the
dentist violated Plaintiff’s constitutional rights by pulling out his teeth or otherwise
performing dental work on Plaintiff. Accordingly, Plaintiff may not proceed against
Warden Smith on the claim about Plaintiff’s dental problems.
Plaintiff also alleges that, as to very high blood sugar and problems with his feet
(including failure to provide special shoes), Warden Smith was “aware of the problems,”
but did nothing. (Complaint, p. 2.) It is not clear how Warden Smith knew of the
problems or to which time period Plaintiff is referring, and, thus, the allegations about
other medical problems are too vague to permit Plaintiff to proceed against Warden
Smith.

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(3)

Helen Smith

Plaintiff alleges that Helen Smith, an employee who hands out pills to inmates,
was one of the persons who accused Plaintiff of hiding medications in his cheek
(“cheeking”), causing correctional officers to search Plaintiff’s mouth at pill call several
times. Plaintiff believes that Helen Smith and Inmate Gillespie had an ongoing romantic
relationship, and that Smith harassed Plaintiff possibly because Plaintiff earlier refused
Gillespie’s request that Plaintiff give his own prescription medication to Gillespie.
Plaintiff further alleges that Helen Smith heard Plaintiff threatening Inmate Brown,
but she thought that Plaintiff was threatening her, and Smith reported the perceived threat
to a correctional officer. Plaintiff alleges, as to Smith and Inmate Gillespie: “Everyone
knows they like each other, after he confronted me I realized why Helen was giving
everyone such a hard time. Tony Gillisppi [sic] has been caught cheeking, they took his
pain meds away because he was pressuring the old men in medical annex out of the[ir]
meds. He’s asked me to sell him mine, I said, “No.” I have neuropathy.” (Dkt. 3, p. 10.)
No constitutional violation lies in this set of speculative allegations. The
correspondence Plaintiff has submitted with the Complaint show that prison officials had
reason to suspect that Plaintiff was “cheeking” his medication. Even if he was not, there
are no plausible allegations that officials were acting out of deliberate indifference rather
than because they were trying to follow prison rules. Plaintiff’s speculative causal links
among the alleged romantic relationship of Helen and Inmate Gillespie, the threat to
Inmate Brown, and the allegedly resultant cheeking accusations are implausible under the
INITIAL REVIEW ORDER - 10

Iqbal standard.
(4)

Dr. Adrian

Plaintiff alleges that Dr. Adrian was giving him insulin that was “killing” him,
because he suffered a “bad reaction’ to the insulin. When he returned to see Dr. Adrian to
inform her about the reaction, he was told that Dr. Adrian was “excused because she had
Alzheimer’s.” (Complaint, p. 12.) Plaintiff has not stated allegations showing Dr. Adrian
knew of Plaintiff’s “bad reaction” to the insulin prescribed. A Grievance clarifies that Dr.
Adrian, prescribed Lantus for Plaintiff from April through May 2010, and then Dr.
Lossamann prescribed Lantus again through July 10, 2010, when it was discontinued. The
person who answered the Grievance wrote: “I could not find any evidence on the internet
or any drug handbook that stated that leg swelling and shortness of breath was a side
effect or adverse reaction to Lantus Insulin.” (Dkt. 1, p. 44.)
Plaintiff may not proceed against Dr. Adrian, because there are no allegations in
the record showing that she knew of Plaintiff’s reactions to Lantus; rather, Plaintiff
alleges that, when he went back to complain to Dr. Adrian, she was no longer working for
Corizon. Further, Plaintiff’s Grievance shows that the last time Dr. Adrian provided
Lantus to Plaintiff was May 11, 2010, which is beyond the statute of limitation period.
(Complaint, Dkt. 1, p. 44.)

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(5)

Defendants Stacey, Deanna, Lorrie, and Nate Chaney

Defendants Stacey, Deanna, and Lorrie (or Lorie) (no last names provided), as
well as Nate Chaney, were involved in the care of Plaintiff’s bleeding ulcer. Plaintiff’s
version of events is as follows. On Saturday, May 21, 2011, Plaintiff woke up in a sweat
at 3:00 a.m., and had to throw up twice. About 5:30 a.m., when it was time for the
“diabetic movement,” he discovered blood coming from his rectum. Plaintiff’s inmate
called CMS, and Defendant Lorrie came and took Plaintiff to the medical unit in her golf
cart.
Plaintiff’s blood sugar levels were checked by Lorrie; they were higher than 550.
Plaintiff went to eat breakfast. Lorrie finished her shift and went home, but did not inform
anyone about Plaintiff’s blood sugar levels. After breakfast, Plaintiff returned to the
medical unit, and his blood sugar levels were checked by Defendant Nate Chaney, and the
level remained at 550. Chaney then sent Plaintiff back to his cell.
That same day, Plaintiff had blood coming from his rectum again when he went to
the bathroom. Plaintiff told Defendant Stacey, who gave him some stool tester strips.
Plaintiff told Stacey it was not his colon or hemorrhoids, but she asked him to do the tests
anyway.
Plaintiff then talked to Defendant Deanna, a sick call nurse. Plaintiff alleges that
when he told her that he was passing blood, she gave him a lecture on a diabetic’s body
and how to take care of himself. She told him to send in a kite for additional medical care
because they did not have a current provider to check his condition. (Complaint, p. 13.)
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She took his Health Services Request form and said that he would be seen on Monday.
On Sunday, after he went to eat his breakfast meal, Plaintiff was very dizzy, so he
went to the medical unit. Nate again visited with Plaintiff and gave him a plastic catcher
to obtain a stool sample at about 7:30 a.m. At about 10:30 a.m., Plaintiff went to the
bathroom and filled about half of the plastic catcher with blood. Nate came by to check
on Plaintiff, and, when he saw the amount of blood in the catcher, he called Cheryl, who
said that Plaintiff needed to go downtown, but she needed to obtain Physician Assistant
Holmes’s approval first. Plaintiff was then restrained, placed in a wheelchair, and taken to
the hospital by prison transport. He was diagnosed with bleeding ulcers, and the doctor
cauterized the ulcers to stop the bleeding. (Dkt. 1, pp. 75-78.)
As to these Defendants, Plaintiff has not set forth sufficient allegations upon which
to proceed on a deliberate indifference claim. Persons who are not incarcerated rarely are
able to obtain same-day medical care, unless in a circumstance that is instantly lifethreatening. While blood in one’s stool can be a sign of a serious illness, it is generally
one that will require testing and analysis that cannot always be done the same day that
medical care is requested.
While Defendant Lorrie did not relay Plaintiff’s high blood sugar level to anyone
else, Mr. Chaney repeated the test shortly thereafter, with the same results, and no factual
allegations of deliberate indifference or actual injury regarding these two tests are
contained in the Complaint. Defendant Stacey gave Plaintiff a test kit, as did Mr. Chaney,
so that additional information could be gathered about Plaintiff’s condition. Plaintiff’s
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condition did not appear to be an emergency at the time he reported it to Deanna, and he
had already been given a test kit by Stacey at that time. When Plaintiff’s condition
became serious, it was treated as an emergency by Mr. Chaney, and Plaintiff was taken to
the hospital for emergency care. Without more facts indicating that these medical
providers acted out of deliberate indifference rather than reasonable medical judgment,
Plaintiff cannot proceed.
(6)

Defendant Holmes

As noted above, P.A. Holmes authorized Plaintiff to be transported to the hospital
for bleeding ulcers. Plaintiff alleges: ‘I went 2 days bleeding out before she showed her
face.” (Complaint, Dkt. 1, p. 18.) Because P.A. Holmes did not do anything further after
seeing the amount of blood he had lost other than authorize his transportation to the
hospital, and did not order him an ambulance, Plaintiff alleges that she was deliberately
indifferent to his condition.
Plaintiff has not stated a deliberate indifference claim against P.A. Holmes on his
current allegations. P.A. Holmes authorized emergency medical treatment for him, and it
is reasonable that she would allow the hospital medical staff to evaluate and treat him,
rather than doing so herself. Plaintiff does not allege what, exactly, P.A. Holmes should
have done, other than calling an ambulance rather than using prison transportation. There
are no allegations showing that the mode of transportation caused Plaintiff an actual
injury. He may not proceed against P.A. Holmes on these allegations.

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(7)

Other Allegations against Nate Chaney

Plaintiff also alleges that Chaney gave Plaintiff pills the last day Chaney worked at
the prison, and that Chaney told Plaintiff he would talk to the medical unit about Plaintiff
not receiving his pills. Plaintiff generally alleges that “they” cut off Plaintiff’s pills, but
the allegations are not specific to any Defendant.2 A vague Grievance that may describe
this incident adds no facts. (Dkt. 1, p. 63.)
Plaintiff also alleges that Mr. Chaney was supposed to call the doctor if the blood
sugars were over 415, but Mr. Chaney did not call a doctor. (Complaint, p. 14.) This
claim is too vague to proceed upon; in addition, there are no allegations of injury that
resulted from this incident. Therefore, Plaintiff cannot proceed on this claim.
Plaintiff also alleges that Mr. Chaney retaliated against him. However, Plaintiff
does not provide sufficient allegations to show that Plaintiff exercised a constitutional
right, and that Mr. Chaney retaliated because of Plaintiff’s exercise of the constitutional
right. Plaintiff cannot proceed on this allegation as stated.
(8)

Dr. Song

Plaintiff alleges that a female employee at the pill call window gave him one pill,
rather than two. When he asked her why he received only one, she told him that Dr. Song
was “cutting off” his medication, but the employee did not know why. Plaintiff later
spoke to Dr. Song, and she did not know why, either. (Complaint, p. 14.) No further facts

2

There appears to be an unfinished sentence on the Complaint, page 13, that is numbered
“page 5" by Plaintiff.
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are provided about the cause of the reduction in pills or whether Plaintiff suffered an
injury. These allegations are too vague to proceed and state no cause of action.
(9)

N.P. Ruth

Defendant Ruth hands out medication. Plaintiff alleges that, in 2008, right after Dr.
Cushing worked on Plaintiff’s teeth, she refused to call for the dentist, but just gave him
aspirin and Ibuprofen, and he suffered six days of pain. This allegation is beyond the
statute of limitations.
(10)

P.A. Mitchell

Defendant Mitchell is a physician’s assistant. Plaintiff alleges that he saw P.A.
Mitchell for stomach problems. Mitchell gave Plaintiff antacids only. Plaintiff alleges that
this was deliberate indifference. This allegation is too vague to state a cause of action, and
it is unclear when these acts occurred.
(11)

Defendant Brent Reinke

Brent Reinke is the Director of the Idaho Department of Correction. Plaintiff
alleges that the medical care at the prison has not improved since Corizon became the
medical provider at the prison. (Dkt. 1, p. 19.) Plaintiff’s claims are too vague to permit
him to proceed. In addition, Plaintiff has not shown that Reinke was involved in or
personally aware of Plaintiff’s medical conditions or treatment.

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(12)

Rona Siegert

Rona Siegert is the medical administrator at ISCI. Plaintiff alleges that Rona
Siegert lied about whether she had spoken to Nate Chaney about Plaintiff’s prescription
medication. (Complaint, Dkt. 1, p. 12.)This allegation is too vague to permit Plaintiff to
proceed.
Plaintiff also alleges that he has complained to Defendant Siegert about how he
has been receiving inadequate treatment for diabetes, including improper shoes, and that
his organs and eyes had been negatively affected by the lack of treatment. (Dkt. 1, p. 19.)
Plaintiff may proceed against Ms. Siegert on this claim, to the extent that the allegations
fall within the statute of limitations period.
(13)

Joseph Cordona

Joseph Cordona was the contract monitor regarding the medical contract between
IDOC and Corizon. Plaintiff alleges that he has contacted Cordona several times
concerning his diabetes and diabetic shoes, because the custom shoes that Corizon
provides diabetics are “trash.” (Complaint, p. 23.) Plaintiff states that Cordona has never
done anything for Plaintiff’s condition. There are insufficient facts to show that Cordona
knew of and ignored Plaintiff’s problems. Accordingly, Plaintiff may not proceed against
Mr. Cordona.
(14)

Mary Hicks

Mary Hicks is a mental health clinician. The Complaint contains no specific
allegations about Ms. Hicks. Because Plaintiff’s allegations are too vague, he cannot
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proceed on this claim.
(15)

Lawrence G. Wasden

Defendant Wasden is the Idaho Attorney General. Plaintiff alleges that the
Attorney General is charged by statute with bringing causes of action regarding breaches
of contract under Idaho Code § 320-241, and that he has not yet brought a claim against
Corizon. Plaintiff has failed to state a claim upon which relief can be granted with these
allegations because (1) they are vague; (2) they fail to show that Defendant Wasden had
personal knowledge of or participation in Plaintiff’s medical care; and (3) Plaintiff has
not sufficiently identified a statute or any case law providing for a private cause of action
against the Attorney General for failing to bring a breach of contract cause of action
against Corizon.
(16)

Tina Williams

Defendant Tina Williams worked for Corizon as a medical administrator at ISCI,
and may be Helen Smith’s boss. Plaintiff alleges that Williams is retaliating against him
through Helen Smith. (Complaint, p. 16.) Plaintiff has not specified any protected conduct
he engaged in that could be the basis for a retaliation claim. This allegation is implausible
and too vague to proceed upon.
Plaintiff also alleges that Ms. Williams will not reinstate his pain medications,
including Neurontin or morphine solute. Plaintiff has failed to state the dates when this
occurred and other factual allegations that would support a claim.
(17)

Karren Barnett

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Plaintiff alleges that Karren Barnett (or Barrett) works for the mental health unit.
Plaintiff alleges that Ms. Barrett knows that he has been diagnosed as bipolar, but she
refuses to treat him for this condition. A Grievance attached to the Complaint shows that
Plaintiff complained of inadequate mental health care received in December 2010 for
difficulties arising from his prior assault, and that he was receiving mental health
treatment. (Exhibit 31-32.) This set of facts belies his allegation that she refused to treat
him. Plaintiff will be not be permitted to proceed against Karren Barnett without
additional detailed factual allegations to support his claim.
(18)

Corizon

Corizon is a medical provider contracted to the IDOC to provide medical care.
Plaintiff cannot proceed against Corizon on the current allegations because he has alleged
insufficient policy-based claims. He may amend his Complaint, as explained below, if he
has further factual allegations to meet the legal standard.
To bring a § 1983 claim against a municipality (local governmental entity) or a
private entity performing a government function, a plaintiff must allege that the execution
of an official policy or unofficial custom inflicted the injury of which the plaintiff
complains. Monell v. Dept. of Soc. Serv. of New York, 436 U.S. 658, 694 (1978); Tsao v.
Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (Monell applicable to private
entities performing government functions). That is, “a municipality [or entity] can be
found liable under § 1983 only where the municipality [or entity] itself causes the
constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989).
INITIAL REVIEW ORDER - 19

Requisite elements of a § 1983 policy-based claim against a municipality or entity
are the following: (1) the plaintiff was deprived of a constitutional right; (2) the
municipality or entity had a policy; (3) the policy amounted to deliberate indifference to
the plaintiff’s constitutional right; and (4) the policy was the moving force behind the
constitutional violation. Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237
F.3d 1101, 1110-11 (9th Cir. 2001) (citing Van Ort v. Estate of Stanewich, 92 F.3d 831,
835 (9th Cir.1996) (internal quotation marks omitted)).
A municipality or entity may also be sued under a failure-to-train theory, where the
failure to train employees amounts to “‘deliberate indifference to the rights of persons
with whom the [untrained employees] come into contact,’” and the “municipal actor
disregarded a known or obvious consequence of his action.” Connick v. Thompson, 131
S.Ct. 1350, 1359 (2011). Id. at 1359. Ordinarily, to maintain a failure-to-train case, a
plaintiff must allege facts showing a “pattern of violations” that amounts to deliberate
indifference. Id. at 1366. Likewise, “a failure to supervise that is ‘sufficiently inadequate’
may amount to ‘deliberate indifference’” that supports a policy-based claim against a
municipality. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011).
All policy-based claims must meet the pleading standards clarified by Bell Atlantic
Corp. v. Twombly and Ashcroft v. Iqbal. That is, mere “formulaic recitation of a cause of
action’s elements” is insufficient. Twombly, 550 U.S. at 555. Stated another way,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
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(19)

Butch Otter

Plaintiff alleges that Governor Otter is aware of the violence, unprofessionalism,
and violations of inmate civil rights occurring at the prison. Plaintiff attaches a letter he
wrote to the governor on October 31, 2012. (Dkt. 3, p. 22.) These allegations are too
vague to permit Plaintiff to proceed or to show that the governor was aware of or
personally participated in the alleged constitutional violations.
(20)

Claim without Defendants

Plaintiff states that he had a pinched nerve in his arm for two years before he was
sent to a surgeon to have it repaired. (Id., p. 20.) There is no particular defendant who
allegedly committed this constitutional violation and no time period specified. Therefore,
Plaintiff may not proceed on this claim.
(21)

Defendants without Claims

The Court discerned no factual allegations particular to Defendants Dr. Khatain,
Dr. Saleris, or Dr. Winnery in the Complaint; their names are simply mentioned in the
caption. Therefore, Plaintiff cannot proceed against these Defendants.
4.

Conclusion
At this time, Plaintiff may proceed only against Rona Siegert for improper

treatment of diabetes. Plaintiff may not proceed against those Defendants against whom
he has stated insufficient factual allegations, where he has not identified actions that
occurred within the statute of limitations period, or where he has not identified a
particular person who caused the alleged harm. Plaintiff may amend his complaint by
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filing a motion to amend and a proposed amended complaint within 150 days after entry
of this Order. Also within 150 days, Plaintiff may also provide facts showing that his
claims are timely, or that equitable estoppel should be applied to permit him to proceed
on other claims.3
This Order does not guarantee that any of Plaintiff’s claims will be successful; it
merely finds that one or more is colorable, meaning that the claims will not be summarily
dismissed at this stage. Defendants may still file a motion for dismissal or motion for
summary judgment if the facts and law support such a motion. This Order is not intended
to be a final or a comprehensive analysis of Plaintiff’s claims. It is Plaintiff’s burden to
thoroughly set forth the legal and factual basis for each claim. The Court will not appoint
counsel for Plaintiff at this time, but will reconsider appointing counsel on the Court’s
own motion later in this case after the Court has had opportunity to review Defendants’
responses and the medical records.
ORDER
IT IS ORDERED:

3

The Idaho Supreme Court has determined that "[s]tatutes of limitation in Idaho are not tolled by
judicial construction but rather by the expressed language of the statute." Wilhelm v. Frampton, 158 P.3d
310, 312 (Idaho 2007). Idaho statutorily tolls the limitations period for a person’s minority status or
insanity. I.C. § 5-230. Early filing of a case pending resolution of a previous case will not necessarily
result in dismissal in Idaho, but rather a stay or injunction is available to preserve one's rights. Wilhelm v.
Frampton, 158 P.3d at 312. The theory of equitable estoppel is also available. While it “does not ‘extend’
a statute of limitation,” it works in a similar manner to prevent a party who has falsely represented or
concealed a material fact with actual or constructive knowledge of the truth "from pleading and utilizing
the statute of limitations as a bar, although the time limit of the statute may have already run.” J.R.
Simplot Co., v. Chemetics International, Inc., 887 P.2d 1039, 1041 (Idaho 1994).

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1.

Plaintiff’s Rule 10(c) Motions (Dkt. 7, 8, 9) are DENIED, to the extent as
set forth above.

2.

Plaintiff’s Motion to Proceed in Forma Pauperis (Dkt. 1) is GRANTED. A
separate fee order will issue to require payment of the $350 filing fee in
increments when and as monies are deposited into his prison trust account.

3.

Plaintiff’s request for appointment of counsel (contained in the Complaint)
is DENIED without prejudice. The Court will reconsider this request at a
later date when additional evidence regarding the merits of the claims has
been submitted by Defendants.

4.

Defendant Rona Siegert shall be allowed to waive service of summons by
executing, or having her counsel execute, the Waiver of Service of
Summons as provided by Fed. R. Civ. P. 4(d) and returning it to the Court
within thirty (30) days. If Defendant chooses to return the Waiver of
Service of Summons, the answer or pre-answer motion shall be due in
accordance with 12(a)(1)(A)(ii). Accordingly, the Clerk of Court shall
forward a copy of the Complaint (Dkt. 3), and a copy of this Order, and a
Waiver of Service of Summons to the following counsel:
Mark Kubinski, Deputy Attorney General for the State of Idaho, Idaho
Department of Corrections, 1299 North Orchard, Ste. 110, Boise, Idaho
83706 on behalf of Defendant Siegert.

5.

Should any entity determine that the individuals for whom counsel for the

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entity was served with a waiver are not, in fact, its employees or former
employees, or that its attorney will not be appearing for the entity or for
particular former employees, it should file a notice within the CM/ECF
system, with a copy mailed to Plaintiff, indicating which individuals for
whom service will not be waived.
6.

If Plaintiff receives a notice from Defendant indicating that service will not
be waived for an entity or certain individuals, Plaintiff shall have an
additional sixty (60) days from the date of such notice to file a notice of
physical service addresses of Defendant, or his claims will be dismissed
without prejudice without further notice.

7.

Plaintiff shall have one hundred fifty (150) days after entry of this Order to
file a motion to amend his complaint.

8.

The parties shall not engage in any discovery until an answer has been filed.
Within thirty (30) days after an answer has been filed, the parties shall
provide each other with the following voluntary disclosures: all relevant
information pertaining to the claims and defenses in this case, including the
names of individuals likely to have discoverable information, along with the
subject of the information, as well as any relevant documents in their
possession, in a redacted form if necessary for security or privilege purposes;
and, if necessary, they shall provide a security/privilege log sufficiently
describing any undisclosed relevant documents which are alleged to be

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subject to nondisclosure. Any party may request that the Court conduct an in
camera review of withheld documents or information. If, instead of filing an
answer, Defendant files a motion to dismiss under Federal Rule of Civil
Procedure 12, disclosures and discovery shall be automatically stayed with
the exception that Defendant shall submit with any motion to dismiss for
failure to exhaust administrative remedies a copy of all grievance-related
forms and correspondence, including a copy of original handwritten forms
submitted by Plaintiff that either fall within the relevant time period or that
otherwise relate to the subject matter of a claim.
9.

Each party shall ensure that all documents filed with the Court are
simultaneously served upon the opposing party (through counsel if the party
has counsel) by first-class mail or via the CM/ECF system, pursuant to
Federal Rule of Civil Procedure 5. Each party shall sign and attach a proper
mailing certificate to each document filed with the court, showing the
manner of service, date of service, address of service, and name of person
upon whom service was made. The Court will not consider ex parte requests
unless a motion may be heard ex parte according to the rules and the motion
is clearly identified as requesting an ex parte order, pursuant to Local Rules
of Civil Practice before the United States District Court for the District of
Idaho 7.2. (“Ex parte” means that a party has provided a document to the
court, but that the party did not provide a copy of the document to the other

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party to the litigation.)
10.

All Court filings requesting relief or requesting that the Court make a ruling
or take an action of any kind must be in the form of a pleading or motion,
with an appropriate caption designating the name of the pleading or motion,
served on all parties to the litigation, pursuant to Federal Rule of Civil
Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United
States District Court for the District of Idaho 5.1 and 7.1. The Court will not
consider requests made in the form of letters.

11.

Discovery shall not be filed with the Clerk of Court, but shall be exchanged
between parties, only, as provided for in the Federal Rules of Civil
Procedure. Motions to compel discovery shall not be filed unless the parties
have first attempted to work out their disagreements between themselves.

12.

No party may have more than three pending motions before the Court at one
time, and no party may file a motion on the same subject matter if he or she
has another motion on the same subject matter currently pending before the
Court.

13.

Plaintiff shall notify the Court immediately if Plaintiff’s address changes.
Failure to do so may be cause for dismissal of this case without further
notice.

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DATED: May 29, 2013

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

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