Fair v. Atencio et al

Filing 14

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED, that: Defendants' Motion to Dismiss (Dkt. 12 ) is GRANTED. 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 (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LEE FAIR
Plaintiff,

Case No. 1:18-cv-198-BLW

v.

MEMORANDUM DECISION AND
ORDER

HENRY ATENCIO; WARDEN
YORDY; and IDOC OFFICIALS TO BE
NAMED AFTER DISCOVERY,
Defendants.

Pending before the Court is Defendants’ Motion to Dismiss under Federal Rule of
Civil Procedure 12(b)(6) (Dkt. 12). Having reviewed the record and briefs, the Court
finds that the facts and legal arguments are adequately presented and oral argument is
unnecessary. See Loc. Civ. R. 7.1(d)(2)(ii).
INTRODUCTION
Plaintiff Lee Fair, a prisoner in the custody of the Idaho Department of Correction
(IDOC) filed this complaint against Defendants Henry Atencio and Keith Yordy alleging
that they, and other unidentified correctional officers, failed to protect him from an attack
by another inmate while he was incarcerated at the Idaho State Correctional Center
(ISCC). Dkt. 3 at 6.

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In his Complaint, Mr. Fair alleges that, until 2011, he “was an active gang member
of the prison gang ‘Severely Violent Criminals’” (SVC). Dkt. 3, at 6. In 2011, Plaintiff
decided to change his life and dropped out of SVC. At that time, the gang “placed an
attack and/or kill order out to it’s [sic] members and other affilliants [sic] known as a
‘Green Light’ on Plaintiff.” Id. As a result, Plaintiff was classified as a protective custody
inmate. While incarcerated at the Idaho Correctional Institution in Orofino, Idaho (ICIO), in 2016, Plaintiff was attacked by two members of a different gang, the Aryan
Knights (AK). Plaintiff was later released from prison. Id.
Plaintiff was rearrested in August 2017 and held in the Ada County Jail, where he
was “attacked twice” because of the “Green Light” placed on him by SVC gang leaders.
Id. “Plaintiff told his parole officer and on-site officer that he had a Green Light by
S.V.C. and required” protective custody; Plaintiff told these individuals that the AK and
the Sureños XIII (another prison gang) had also issued a Green Light to attack Plaintiff.
Id. Plaintiff was later transferred to IDOC custody and placed at ISCI.
Plaintiff states that he “gave notice to IDOC classification staff, unit officers, case
manager, and psychiatrist care staff” of this Green Light and of Plaintiff’s “fear of
attacks.” Id. at 7. Plaintiff states that these individuals “did nothing to help him.” Id.
In February 2018, Plaintiff was attacked in a foyer by another inmate while Plaintiff was
“trying to go to dinner,” and was seriously injured. Id. According to Plaintiff, this other
inmate was not housed in the area of the prison where the attack took place and that,

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therefore, unidentified correctional officers must have “let [the inmate] in” to the area. Id.
at 8. The attack “continued for approximately nine minutes, while medical staff were
screaming for officers to intervien [sic], but officers allowed this [to] continue.” Id. at 7.
Plaintiff claims that despite “the Balla injunction,” the inmate who attacked
Plaintiff had been “housed on the same unit and tier with Plaintiff.” Id. at 8. Plaintiff also
asserts that, before the attack, officers in Plaintiff’s housing unit “would walk [the other
inmate] passed [sic] Plaintiff’s cell, and let [him] stop at [Plaintiff’s] door kicking it,
yelling ‘Fuck You Punk’ and ‘Bitch Ass Rat,’” and that the officers “would laugh and
further encourage him.” Id.
Plaintiff alleges that the named Defendants, as well as unidentified individuals,
violated his constitutional rights by failing to protect him from the February 2018 attack.
LEGAL STANDARD
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 (2007). While a complaint attacked by 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, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is

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plausible on its face.” Id. 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.
The Supreme Court identified two “working principles” that underlie Twombly in
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the court need not accept as true legal
conclusions that are couched as factual allegations. Id. Rule 8 does not “unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 67879. Second, to survive a motion to dismiss, a complaint must state a plausible claim for
relief. Id. at 679. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
A dismissal without leave to amend is improper 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

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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).
Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a
plausible civil rights claim, 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).
To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or
possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472
(2015). Negligence is not actionable under § 1983, because a negligent act by a public
official is not an abuse of governmental power but merely a “failure to measure up to the
conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986).
Prison officials generally are not liable for damages in their individual capacities
under § 1983 unless they personally participated in the alleged constitutional violations.
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677
(“[E]ach Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.”). Section 1983 does not allow for recovery against an employer or
principal simply because an employee or agent committed misconduct. Taylor, 880 F.2d

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at 1045. However, “[a] defendant may be held liable as a supervisor under § 1983 ‘if
there exists ... a sufficient causal connection between the supervisor’s wrongful conduct
and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)
(quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).
A plaintiff can establish this causal connection by alleging that a defendant (1)
“set[] in motion a series of acts by others”; (2) “knowingly refus[ed] 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) failed to act or improperly acted in the
training, supervision, or control of his subordinates”; (4) “acquiesc[ed] in the
constitutional deprivation”; or (5) engag[ed] in “conduct that showed a reckless or callous
indifference to the rights of others.” Id. at 1205-09.
A plaintiff cannot simply restate these standards of law in a complaint. Instead, a
plaintiff must provide specific facts supporting the elements of each claim, and he must
allege facts showing a causal link between each defendant and Plaintiff’s injury or
damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at
679.
ANALYSIS
In its Initial Review Order (“IRO”) this Court ruled that Plaintiff could proceed on
his two broad failure-to-protect claims—one based on correctional officers’ failure to
intervene in the attack at ISCI, and another based on Defendants’ failure to protect

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Plaintiff from that attack in the first place. Dkt. 1 at 9-10.
As the Court pointed out in its IRO, Plaintiff’s Complaint would state colorable
Eighth Amendment failure-to-protect claims against the unidentified correctional officers
who—despite knowing that Plaintiff was being severely beaten by the other inmate—
failed to intervene and allowed the attack to go on for approximately nine minutes. If the
Complaint identified prison officials who actually knew of Plaintiff’s being targeted by
prison gangs and who had the authority to act to protect Plaintiff from the risk of attack,
yet deliberately failed to do so, the Complaint would also state plausible Eighth
Amendment failure-to-protect claims against those individuals. However, Plaintiff has
not amended his complaint in the time allotted to identify these individuals.
Plaintiff’s complaint, without amendment, names as Defendants the director of the
IDOC and the warden of ISCI, but the Complaint does not state a plausible claim against
these Defendants. Plaintiff’s allegations simply do not raise a reasonable inference that
either the director or the warden personally participated in the alleged violation of
Plaintiff’s constitutional rights or that a sufficient causal connection exists to render them
liable as supervisors. See Taylor, 880 F.2d at 1045; Starr, 652 F.3d at 1207. Plaintiff only
makes the following allegations specifically against the named Defendants:
 Director Atencio “has created adopted, and/or enforced customs or policies to treat
inmates ... with deliberate indifference to substantial risks of harm within IDOC,
resulting in the 2-28-18 attack by [the other inmate] after officers brought him into

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a unit he was not housed in;” and
 ISCI Warden Yordy “enforced customs or policies to treat inmates ... with
deliberate indifference to substantial risks of harm within his prison I.S.C.I.,
resulting in the 2-28-18 attack by [the other inmate] after officers brought him into
a unit he was not housed in.”
Dkt. 3 at 9. These are nothing more than bare, conclusory statements of the elements of
an Eighth Amendment claim. See Iqbal, 556 U.S. at 678. Such allegations do not support
a reasonable inference that the named Defendants were actually aware of a risk to
Plaintiff or that they deliberately disregarded that risk. See Farmer, 511 U.S. at 837.
Thus, the Complaint does not state a plausible Eighth Amendment claim against the only
named Defendants, and the Court will grant the Defendants’ Motion to Dismiss these
claims under Rule 12(b)(6) with leave to amend.
ORDER
In accordance with the Memorandum Decision set forth above, NOW
THEREFORE IT IS HEREBY ORDERED, that:
1. Defendants’ Motion to Dismiss (Dkt. 12) is GRANTED.

DATED: April 16, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

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