Roberts v. Blades et al

Filing 33

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that Defendant Blades' Motion to Dismiss for Failure to State a Claim 26 is GRANTED in part and DENIED in part; and Plaintiff's Motion for Enlargement of Time to File Response 28 is GRANTED . All un-served Defendants must be served no later than 60 days after entry of this Order. Any proposed amended complaints must be filed no later than 90 days after entry of this Order. All discovery shall be completed no later than 180 days after entry of this Order. Depositions shall be completed no later than 180 days after entry of this Order. Dispositive motions shall be filed with accompanying briefs no later than 210 days after entry of this Order. 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

ROY W. ROBERTS,
Plaintiff,
vs.

Case No. 1:13-cv-00312-BLW
MEMORANDUM DECISION AND
ORDER

RANDY BLADES, SCOTT
LOSSMANN, CORIZON MEDICAL
SERVICES, GARTH GULICK,, GLEN
BABICH, DR. YOUNG,
Defendants.

Pending before the Court in this prisoner civil rights action is Defendant Randy
Blades’ Motion to Dismiss for Failure to State a Claim, which is now fully briefed. (Dkt.
26, 29, 30.) Having reviewed the parties’ briefing, and the record before the Court, the
Court concludes that oral argument is unnecessary. Accordingly, the Court enters the
following Order.

CONSIDERATION OF MOTION TO DISMISS
1.

Applicable Standards of Law
The Prison Litigation Reform Act (PLRA)11 requires the Court to screen all pro se

prisoner complaints to determine whether they have stated a claim upon which relief can

1

Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq.

MEMORANDUM DECISION AND ORDER - 1

be granted before such complaints are served on the defendants. 28 U.S.C. §§ 1915 &
1915A. The Court uses a liberal construction standard in the screening process.
The critical inquiry is whether a constitutional claim, however inartfully pleaded,
has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
Cir.1989).2 Where claims appear plausible and supported by at least some particular
factual allegations, the Court weighs the potential utility of requiring the prisoner to
submit an amended complaint against the reality that it may be impossible for the
prisoner to submit a pleading that is more detailed than the first, given that prisoners have
few legal resources and that much of the evidence they need to support their claims is in
the hands of jail officials. After weighing these issues, the Court at times permits claims
teetering on the edge of Rule 8 standards to proceed to summary judgment—a stage of
litigation where all the evidence is before the Court, and a review of the potential merits
of the claims can be accomplished.
Not every questionable claim must wait for summary judgment to be fleshed out,
however. The Court retains screening authority to dismiss claims at any time during the
litigation under §1915(e).3 The Court also has the authority to seek additional information
from the parties to assess Plaintiff’s claims during the screening process. The Court may

2

The 12(b)(6) authority to dismiss claims as explained in Jackson was expanded by the PLRA, giving courts power
to dismiss such claims sua sponte and prior to service of process, as explained in Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000).
3

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss [an in
forma pauperis] case at any time if the court determines that . . . the action or appeal . . . is frivolous or malicious. . .
[or] fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).

MEMORANDUM DECISION AND ORDER - 2

exercise its discretion to require an amended complaint, a Watson questionnaire,4 a
Spears hearing,5 or a Martinez report.6
The Court’s authority to screen pro se prisoner complaints and review prison
records often makes the filing of a Rule 12 motion to dismiss—which is designed to test a
pleading without additional evidentiary support—unnecessary. See Fed. R. Civ. P. 12.
Where judicial efficiency is served by the Court requiring the plaintiff to provide such
items at the outset of the case, the Court can exercise that option.
Where Defendants bring a pre-discovery motion to dismiss, the Court generally
will not dismiss prisoner claims that have survived initial review, unless Defendants
convincingly argue that, under a liberal construction of the pleadings, there is a lack of
any cognizable legal theory or a failure to plead sufficient facts to support a cognizable
legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).7
To survive summary dismissal, a complaint must contain sufficient factual matter,

4

In Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976), the Court determined: “The employment of a form
questionnaire is a useful means by which the court can develop the factual basis for the prisoner's complaint.”
5

In Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the court authorized an evidentiary hearing in the nature of a
Fed.R.Civ.P.12(e) motion for a more definite statement. The hearings were held to supplement questionnaires sent
to prisoners to elaborate on vague pleadings. The questions and answers had been considered the equivalent of a
response to a 12(e) motion.
6

In Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), the trial court ordered (before answer) that the prison officials
conduct an investigation of the incident to include an interrogation of those concerned, and file a report with the
court, to enable the court to decide the jurisdictional issues and make a determination under section 1915(a). Id. at
319. The Ninth Circuit approved of the use of Martinez reports in In re Arizona, 528 F.3d 652, 659 (9th Cir. 2008).
7

Balistreri was overruled on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562-63 (2007), to the
extent that Balistreri followed the rule that, “[a] complaint should not be dismissed under Rule 12(b) (6) ‘unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.’” 901 F.2d at 699 (citing Conley v. Gibson, 355 U.S. 41, 45–46 (1957)).

MEMORANDUM DECISION AND ORDER - 3

accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
In exercising its discretion to summarily dismiss claims on its own motion or by
motion of the defendants, the Court takes into consideration that, in any case, and more
so in pro se cases, the law requires that plaintiffs be given an opportunity to amend their
pleadings to remedy any deficiencies that were identified during screening or after a
motion to dismiss has been adjudicated, unless amendment would be futile. See Lipton v.
Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (“It is not unreasonable that
plaintiffs may seek amendment after an adverse ruling, and in the normal course district
courts should freely grant leave to amend when a viable case may be presented.”); see
also Lopez v. Smith, 203 F.3d 1122, 1128-30 (9th Cir. 2000) (A pro se litigant bringing a
civil rights suit must have an opportunity to amend the complaint to overcome
deficiencies unless it is clear that they cannot be overcome by amendment, because,
while Congress’s intent in requiring screening is “to curb meritless lawsuits,” meritorious
lawsuits should not be “swept away in the process.”).
Where a party submits evidence beyond the pleadings, the Court may (1) consider
it as a supplement to the Complaint under its § 1915 screening authority to determine
whether Plaintiff has stated or could state a claim; or (2) convert a Rule 12 motion into a
Rule 56 motion for summary judgment, after giving the parties notice and an opportunity
to respond before making a ruling on the motion. Fed. R. Civ. P. 12(d). Full or limited
discovery also may be warranted. Under Rule 56, where assertions of fact or objections to
another party’s assertion of facts are not properly supported or addressed, the Court may
MEMORANDUM DECISION AND ORDER - 4

bring the deficiency to the attention of the parties and give them an opportunity to
supplement their briefing and evidence, or may issue any other appropriate order. Fed. R.
Civ. P. 56(e)(1).
The Supreme Court has instructed that rulings on the qualified immunity defense
“should be made early in the proceedings so that the costs and expenses of trial are
avoided where the defense is dispositive,” because the defense is “an immunity from suit
rather than a mere defense to liability.” Saucier v. Katz, 533 U.S. 194, 200 (2001). A
motion to dismiss on grounds of qualified immunity may be granted where the
allegations on the face of the Complaint, taken as true, are sufficient to show that the
qualified immunity test is met. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997).
However, an opportunity to amend to state a plausible claim must be provided to a
plaintiff if qualified immunity is asserted in a motion to dismiss. See Moss v. U.S. Secret
Service, 572 F.3d 962, 974-75 (9th Cir. 2009). Where extra-record evidence is proffered
or required to determine the facts at hand, qualified immunity must be asserted in a
summary judgment motion. Id.
In § 1983 actions, the doctrine of qualified immunity protects state officials from
personal liability for on-the-job conduct so long as the conduct is objectively reasonable
and does not violate clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (citations omitted). A qualified immunity analysis consists of two
prongs: (1) whether the facts as alleged by plaintiff establish a violation of a
constitutional right, and (2) whether that right was clearly established given the state of

MEMORANDUM DECISION AND ORDER - 5

the law at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232
(2009), citing Saucier v. Katz, 533 U.S. at 201.
2.

Background

Plaintiff has alleged that the medical defendants in this case refuse to properly
treat his severe pain or schedule him for back surgery. He has alleged that Corizon “has a
policy or custom of not providing proper pain relief medication to the inmates of the
Idaho State Department of Corrections. (Dkt. 8, p. 2.) He alleges that Corizon removed
98% of pain medication from the Idaho inmates at the Idaho State Correctional Institution
(ISCI) and replaced those pain medications with psychotropic drugs that left Plaintiff in
unbearable pain for over a year. (Id., p. 3.)
Plaintiff also has alleged that Warden Randy Blades is intimately involved in the
oversight and review of Corizon’s provision of medical treatment of ISCI Inmates as a
result of the Balla v. Idaho class action lawsuit, which addressed some of the same issues
that Plaintiff raises here. See Balla v. Idaho, 1:81-cv-00165-BLW. Plaintiff has submitted
the affidavits of several class action representatives, who declare that Plaintiff’s particular
problems were discussed at a Balla Case Monitoring Meeting where Warden Blades was
present. (Dkt. 29-1, 29-2.)
In response to the Motion to Dismiss, Plaintiff has provided notes from a Balla
Case Monitoring Meeting from August 2013. (Dkt. 31.) It appears that Plaintiff attempted
to highlight notes from a portion of the meeting where his medical problems were
discussed; unfortunately, when the highlighted page was copied, the words under the

MEMORANDUM DECISION AND ORDER - 6

highlighting became unreadable.8 (Dkt. 31-1, p. 7.) Other portions of the notes, however,
show that Warden Blades was aware of and very involved with the content of the
meeting, offering to follow up regarding medical care for the inmates and issues that
were discussed. A few references include the following:
Page 1: “Warden Blades also stated that was incorrect and it will be dealt with.”
Page 2: “Warden Blades would like Mr. Beals to send him a concern also.”
Page 3: “Warden Blades stated he will look into it.”
Page 6: “Warden Blades was not aware of that, and will look into it.”
(Dkt. 31-1, Balla Case Monitoring Meeting Notes.)
3.

Discussion
Plaintiff has alleged that Warden Blades did nothing to aid his medical problems

after being briefed on them. While Warden Blades has no direct supervisory authority
over Corizon medical staff, he is ultimately responsible for the health and welfare of
inmates in his prison, and has authority to make or order additional inquiries into an
inmate’s health care complaints that are brought to his attention.
The Court concludes that Plaintiff has stated a claim against Warden Blades. In
Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), the United States Court of Appeals for the
Ninth Circuit clarified how to show a causal connection between a supervisor and an
alleged violation, including that the supervisor participated in: (1) “setting in motion a
series of acts by others”; (2) “knowingly refus[ing] to terminate a series of acts by others,
8

At this stage, it is sufficient that Plaintiff has submitted the affidavits of two inmates who attended the meeting and
who can testify that Warden Blades was at the Balla Meeting and that Plaintiff’s problems were discussed there.
Plaintiff should submit a non-highlighted copy of this record, however, on summary judgment and at trial.

MEMORANDUM DECISION AND ORDER - 7

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 1205-09 (internal quotations and punctuation omitted).
Plaintiff alleges that Warden Blades had notice of Plaintiff’s ongoing problem and
did not do anything further to solve his problem. This is enough to infer deliberate
indifference—knowledge, plus a conscious disregard of an allegedly serious health need.
Non-medical prison personnel are generally entitled to rely on the opinions of medical
professionals with respect to appropriate medical treatment of an inmate. However, if “a
reasonable person would likely determine [the medical treatment] to be inferior,” the fact
that an official is not medically trained will not shield that official from liability for
deliberate indifference. Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir. 2012); 9 see also
McGee v. Adams, 721 F.3d 474, 483 (7th Cir. 2013) (stating that non-medical personnel
may rely on medical opinions of health care professionals unless “they have a reason to
believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not
treating) a prisoner.”) (internal quotation marks omitted). In addition, if an inmate
continues to complain after he has had treatment, officials who ignore the continuing

9

Snow was overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (2014) (medical provider who
lacked authority over budgeting decisions was entitled to a jury instruction that the jury could consider, for purposes
of the claim for damages against him personally, whether prison resources were such that it was impossible for him
to provide the care the inmate needed, but prospective injunctive relief claims against such a defendant in his official
capacity remain viable).

MEMORANDUM DECISION AND ORDER - 8

complaints may be deliberately indifferent. Cooper v. Dyke, 814 F.2d 941, 945-46 (4th
Cir. 1987).
Other courts are in agreement. If an alleged constitutional violation is ongoing,
and a supervisory official reviewing the inmate’s report of a problem has the duty and
authority to review the propriety of the medical treatment and take action to remedy the
alleged deficiencies (not necessarily by providing medical care himself, but by obtaining
the answer to whether the medical care was proper from a person with medical training
and directing a remedy to be implemented), then a cause of action lies, because the
defendant “knew of an ongoing constitutional violation and . . . had the authority and
opportunity to prevent the ongoing violation,” under supervisory liability principles
applicable to § 1983 actions. See Herrera v. Hall, 2010 WL 2791586 at *4 (E.D. Cal.
2010) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)).
Stated differently, where claims are asserted against persons who supervise the
provision of prison medical care, the question is not whether the supervisor was “directly
involved” in the plaintiff’s diagnosis, but whether the plaintiff has sufficiently alleged or
provided evidence from which a jury could find that the supervisor’s knowing failure to
address the treating provider’s deficient care rendered Plaintiff’s medical treatment
constitutionally inadequate. See Gonzalez v. Ahmed, 2014 WL 4444292, at *8 (N.D. Cal.
2014). For example, in Gonzalez, summary judgment was denied as to the supervisory
liability of Dr. Chudy in reviewing Dr. Ahmed’s care of Plaintiff under the following
circumstances:

MEMORANDUM DECISION AND ORDER - 9

Under Plaintiff’s version of the facts, Dr. Ahmed flatly refused to examine
him because Dr. Ahmed was tired at the end of the day. Plaintiff further
alleges that Dr. Chudy and Dr. Sepulveda knew that Dr. Ahmed had denied
Plaintiff care, but nonetheless ordered Plaintiff to return to Dr. Ahmed’s
care.
Id. at *8.
In Gonzalez, the court determined that Plaintiff’s complaints to Dr. Chudy were
not merely about past health care, but “referred to an ongoing and substantial risk to his
health, and requested that Dr. Ahmed’s actions be investigated so as to prevent future
incidents.” Id. The court further denied Dr. Chudy’s request for application of qualified
immunity, reasoning that, “under Plaintiff’s version of the facts, a prison official could
not reasonably believe that forcing Plaintiff to return to Dr. Ahmed’s care unsupervised
would not be an effective denial of, or intentional interference with, Plaintiff's necessary
medical treatment.” Id. at *9; see also Jett v. Penner, 439 F.3d 1091, 1096, 1098 (9th Cir.
2006) (“As prison administrators, Dr. Peterson and [Warden] Cheryl Pliler are liable for
deliberate indifference when they knowingly fail to respond to an inmate’s requests for
help.”).
Based on all of the foregoing, Plaintiff will be permitted to proceed to the
discovery and summary judgment stages on his claims against Warden Blades in his
personal or individual capacity for damages purposes. For the same reasons, the Court
concludes that Warden Blades’ qualified immunity argument fails on Saucier’s first
prong (whether the facts alleged by Plaintiff, if true, establish a violation of a
constitutional right), but it may be reasserted at the summary judgment stage, if
appropriate.
MEMORANDUM DECISION AND ORDER - 10

The Court agrees with Defendant Warden Blades that Plaintiff has not asserted an
official capacity claim against Warden Blades for injunctive relief purposes in the
Amended Complaint (Dkt. 8), and Plaintiff has already received the surgery that he
requested from prison officials. Thus the Court clarifies that the Eighth Amendment
claim against Warden Blades is in his personal or individual capacity for damages
purposes only, and no official capacity claim lies.
ORDER
IT IS ORDERED that Defendant Blades’ Motion to Dismiss for Failure to State a
Claim (Dkt. 26) is GRANTED in part as to any claim against Warden Blades in his
official capacity, and DENIED in part as to any damages claims against Warden Blades
in his individual capacity; and Plaintiff’s Motion for Enlargement of Time to File
Response (Dkt. 28) is GRANTED. The Response filed at Dkt. 29 is considered timely.
IT IS FURTHER ORDERED that the following pretrial schedule shall govern
this action:
1. Disclosure of Relevant Information and Documents: If the parties have not
already done so, no later than 30 days after entry of this Order, the parties shall
provide each other with relevant information and documents 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
MEMORANDUM DECISION AND ORDER - 11

subject to nondisclosure. Any party may request that the Court conduct an in
camera review of withheld documents or information. In camera documents are to
be filed ex parte under seal, and not provided by email or mail.
2. Service. All un-served Defendants must be served no later than 60 days after entry
of this Order, or claims against them will be dismissed.
3. Amendment of Complaint. Any proposed amended complaints, with
accompanying motions, must be filed no later than 90 days after entry of this
Order.
4. Completion of Discovery and Requests for Subpoenas: All discovery shall be
completed no later than 180 days after entry of this Order. Discovery requests
must be made far enough in advance to allow completion of the discovery in
accordance with the applicable federal rules prior to this discovery cut-off date.
Discovery is exchanged between parties, not filed with the Court. The Court is not
involved in discovery unless the parties are unable to work out their differences
between themselves as to whether the discovery responses are appropriate. In
addition, all requests for subpoenas duces tecum (pretrial production of documents
by nonparties) must be made within 150 days after entry of this Order. No
requests for subpoenas duces tecum will be entertained after that date. (Subpoena
requests for trial appearances of witnesses shall not be filed until the case is set for
trial.) To obtain a subpoena duces tecum for production of documents by
nonparties, Plaintiff must first submit to the Court the names, addresses, and the
type of information sought from each person or entity to be subpoenaed, and
MEMORANDUM DECISION AND ORDER - 12

Plaintiff must explain the relevance of the items requested to the claims. The Court
will then determine whether the subpoenas should issue.
5. Depositions: Depositions, if any, shall be completed no later than 180 days after
entry of this Order. If Defendants wish to take the deposition of Plaintiff or other
witnesses who are incarcerated, leave to do so is hereby granted. Any such
depositions shall be preceded by 10 days’ written notice to all parties and
deponents. The parties and counsel shall be professional and courteous to one
another during the depositions. The court reporter, who is not a representative of
Defendants, will be present to record all of the words spoken by Plaintiff (or other
deponent), counsel, and any other persons at the deposition. If Plaintiff (or another
deponent) wishes to ensure that the court reporter did not make mistakes in
transcribing the deposition into a written form, then Plaintiff can request the
opportunity to read and sign the deposition, noting any discrepancies between
what is transcribed and what Plaintiff believes was said. If Plaintiff wishes to take
depositions, Plaintiff must file a motion requesting permission to do so,
specifically showing the ability to comply with the applicable Federal Rules of
Civil Procedure by providing the names of the proposed persons to be deposed, the
name and address of the court reporter who will take the deposition, the estimated
cost for the court reporter’s time and the recording, and the source of funds for
payment of the cost.
6. Dispositive Motions: All motions for summary judgment and other potentially
dispositive motions shall be filed with accompanying briefs no later than 210 days
MEMORANDUM DECISION AND ORDER - 13

after entry of this Order. Responsive briefs to such motions shall be filed within
30 days after service of motions. Reply briefs, if any, shall be filed within 14 days
after service of responses. All motions, responses, and replies shall conform to
Rule 7.1 of the Local Rules for the District of Idaho. Neither party shall file
supplemental responses, replies, affidavits, or other filings not authorized by
the Local Rules without prior leave of Court. No motion or memorandum,
typed or handwritten, shall exceed 20 pages in length. Submission of a motion
for summary judgment addressing procedural issues does not foreclose any party
from later filing a motion for summary judgment on the merits.
7. Alternative Dispute Resolution (ADR). Should Plaintiff and any Defendant wish
to attend a settlement conference, they should file a stipulation to attend settlement
conference, and the case shall then be referred to the Court’s ADR Director.

DATED: December 15, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 14