Jenkins v. Little

Filing 6

INITIAL REVIEW ORDER. Plaintiff has 28 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended complaint) a Motion to Review the Amended Complaint. If Plaintiff does not ame nd within 28 days, this case may be dismissed without further notice. Plaintiff's request for appointment of counsel (contained in the Complaint) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint. Signed by Judge David C. Nye. (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
RICHARD ANTHONY JENKINS,
Case No. 1:19-cv-00247-DCN
Plaintiff,
INITIAL REVIEW ORDER BY
SCREENING JUDGE

v.
KENNETH LITTLE, M.D.,
Defendant.

The Clerk of Court conditionally filed Plaintiff Richard Anthony Jenkins’s
Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The
Court now reviews the Complaint to determine whether it should be summarily dismissed
in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and
otherwise being fully informed, the Court enters the following Order directing Plaintiff to
file an amended complaint if Plaintiff intends to proceed.
1.

Screening Requirement
The Court must review complaints filed by prisoners seeking relief against a

governmental entity or an officer or employee of a governmental entity, as well as
complaints filed in forma pauperis, to determine whether summary dismissal is appropriate.
The Court must dismiss a complaint or any portion thereof that states a frivolous or
malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) &
1915A(b).
INITIAL REVIEW ORDER BY SCREENING JUDGE - 1

2.

Pleading Standard
A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for
relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient
for the reviewing court plausibly “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed
factual allegations, ... it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are
“merely consistent with a defendant’s liability,” or if there is an “obvious alternative
explanation” that would not result in liability, the complaint has not stated a claim for relief
that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted).
3.

Factual Allegations
Plaintiff is a prisoner in the custody of the Oregon Department of Corrections

(“ODOC”), currently incarcerated at Snake River Correctional Institution (“SRCI”). On
May 20, 2014, that neurosurgeon Kenneth Little, M.D., a doctor with the ODOC,
performed surgery on Plaintiff to relieve a pinched nerve root. On June 19, 2014, Plaintiff
had a follow-up appointment with Dr. Little. Compl., Dkt. 3, at 1. The doctor made
treatment recommendations, which Plaintiff contends were altered from the original
recommendations. Id. at 2-3. The June 19, 2014 appointment was Plaintiff’s last postoperative follow-up appointment and the last time he saw Dr. Little. Id. at 4. Plaintiff does
INITIAL REVIEW ORDER BY SCREENING JUDGE - 2

not allege that Dr. Little was employed as a prison medical provider at any time in the five
years since Plaintiff’s last appointment with him.
Plaintiff states that he also suffered pain, inflammation, and infection—as a result
of the allegedly unsuccessful surgery and inadequate post-operative care—for two to three
months until he was treated with medication to lessen the inflammation. Id. at 3. He asserts
that he still experiences “constant chronic pain,” as a result of Dr. Little’s failure to properly
treat Plaintiff’s medical condition, and that “Dr. Little never once gave any informed
medical suggestions that would diagnose to plaintiff why surgery was unsuccessful.” Id. at
4. Plaintiff also claims he was denied physical therapy.
The Complaint claims of inadequate medical treatment under the Eighth and
Fourteenth Amendments. He names only Dr. Little as a Defendant. Id. at 1-4.
Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court
will, however, grant Plaintiff 28 days to amend the Complaint. Any amended complaint
should take into consideration the following.
4.

Discussion
A.

Proper Venue

As an initial matter, it appears that venue might be improper in the District of Idaho.
The Complaint states that Plaintiff is incarcerated in Oregon and that Defendant Little
works for the Oregon Department of Corrections. Dkt. 3 at 1–2. Therefore, the Court
presumes that Defendant is an Oregon resident and that Plaintiff’s surgery and follow-up
medical care all occurred in Oregon. It also appears that venue would be proper in the
District of Oregon and that Defendant Little may not be subject to the personal jurisdiction
INITIAL REVIEW ORDER BY SCREENING JUDGE - 3

of this Court. See 28 U.S.C. § 1391(b). If venue is proper in the District of Oregon, the
Court can dismiss the case or can transfer the case to that District. See 28 U.S.C. § 1406(a).
If Defendant Little is actually a resident of Idaho, or if a “substantial part of the
events or omissions giving rise to [Plaintiff’s] claim[s]” occurred in Idaho, venue could be
proper in Idaho. Id. This could potentially be the case, as the prison in which Plaintiff is
confined is not far from the Idaho border, and prisoners may be transported to Idaho
hospitals at times. If venue is proper in both Idaho and Oregon—for example, if Defendant
Little is an Idaho resident but the events giving rise to Plaintiff’s claims took place in
Oregon—the Court may still transfer the case to the District of Oregon “[f]or the
convenience of the parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a).
There are not enough facts in the Complaint for the Court to determine whether
venue is proper in this District. If Plaintiff files an amended complaint, he should explain
why he believes the District of Idaho to be a proper venue.
B.

The Complaint Appears to Be Untimely

Plaintiff acknowledges that Dr. Little’s last involvement with Plaintiff’s medical
treatment took place on June 19, 2014. Plaintiff does not identify Dr. Little as a prison
medical provider after that date at all. The Complaint in this case was not filed until June
19, 2019, at the earliest.1 Therefore, the Complaint appears to be time-barred.
Federal civil rights actions arising in Idaho (and in Oregon) are governed by a two-

1

Error! Main Document Only.Prisoners are usually entitled to the benefit of the “mailbox rule,” which
provides that a legal document is deemed filed on the date the prisoner delivers it to the prison authorities
for filing by mail, rather than the date the clerk actually receives it. See Houston v. Lack, 487 U.S. 266,
270-71 (1988); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (applying the mailbox rule to civil
rights actions).

INITIAL REVIEW ORDER BY SCREENING JUDGE - 4

year statute of limitation. Idaho Code § 5-219; Or. Rev. Stat. § 12.110; see also Wilson v.
Garcia, 471 U.S. 261, 280 (1985) (holding that state statute of limitation for personal injury
actions governs § 1983 actions), abrogated on other grounds by Jones v. R.R. Donnelley
& Sons Co., 541 U.S. 369 (2004). Although the state statute of limitation governs the time
period for filing a § 1983 claim, federal law governs when that claim accrues, or arises.
Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir. 1994). Under the “discovery
rule,” a claim accrues “when the plaintiff knows or has reason to know of the injury” that
is the basis of the claim. Lukovsky v. City & Cty. of San Francisco, 535 F.3d 1044, 1048
(9th Cir. 2008) (internal quotation marks omitted). That is, the statute of limitation begins
to run when the plaintiff becomes aware of the actual injury—not “when the plaintiff
suspects a legal wrong.” Id.
If a plaintiff cannot show that his claim accrued during the statute of limitation
period, he still may file a lawsuit beyond the limitations deadline if he can show that the
statute should have been tolled (or stopped) for a certain period of time during the deadline
period within which he should have filed the lawsuit. Pursuant to the Prison Litigation
Reform Act (“PLRA”), the “statute of limitations must be tolled while a prisoner completes
the mandatory exhaustion process.” Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
In addition to tolling under the PLRA, state tolling law applies to § 1983 actions
unless important federal policy will be undermined. See Johnson v. Railway Express
Agency, Inc., 421 U.S. 454, 464-65 (1975); Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th
Cir. 2008). Idaho law allows for statutory tolling of the statute of limitations for a person’s
juvenile status or insanity. Idaho Code § 5-230. However, because the Idaho Supreme
INITIAL REVIEW ORDER BY SCREENING JUDGE - 5

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,” equitable tolling is not
available in Idaho.2 Wilhelm v. Frampton, 158 P.3d 310, 312 (Idaho 2007).
Allowing for a maximum of thirty days to exhaust the prison administrative process,
it seems any claims against Dr. Little that arose before May 20, 2017—which was two
years and thirty days before June 19, 2019—are time-barred. If Plaintiff includes such
claims in an amended complaint, he must explain why he believes those claims are not
subject to dismissal as untimely.
C.

The Complaint Fails to State a Plausible Claim for Relief

Even assuming (1) that venue is proper in this District and (2) that the Complaint is
timely, the Complaint remains subject to dismissal because Plaintiff has not stated a claim
upon which relief may be granted.
Plaintiff brings his 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
2

The doctrine of equitable estoppel, however, is available in Idaho. While it “does not ‘extend’ a
statute of limitation,” equitable estoppel 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). Equitable estoppel
requires a showing of four elements: “(1) a false representation or concealment of a material fact with actual
or constructive knowledge of the truth; (2) that the party asserting estoppel did not know or could not
discover the truth; (3) that the false representation or concealment was made with the intent that it be relied
upon; and (4) that the person to whom the representation was made, or from whom the facts were concealed,
relied and acted upon the representation or concealment to his prejudice.” Id.

INITIAL REVIEW ORDER BY SCREENING JUDGE - 6

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 and prison medical providers 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 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)).
The Eighth Amendment to the United States Constitution protects prisoners against
cruel and unusual punishment. To state a claim under the Eighth Amendment, prisoners
must plausibly allege that they are “incarcerated under conditions posing a substantial risk
of serious harm,” or that they have been deprived of “the minimal civilized measure of
life’s necessities” as a result of the defendants’ actions. Farmer v. Brennan, 511 U.S. 825,
834 (1994) (internal quotation marks omitted). An Eighth Amendment claim requires a
plaintiff to satisfy “both an objective standard—that the deprivation was serious enough to
constitute cruel and unusual punishment—and a subjective standard—deliberate
INITIAL REVIEW ORDER BY SCREENING JUDGE - 7

indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on
other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).
The Eighth Amendment includes the right to adequate medical care in prison, and
prison officials or prison medical providers can be held liable if their “acts or omissions
[were] sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Regarding the objective standard for prisoners’
medical care claims, the Supreme Court of the United States has explained that “[b]ecause
society does not expect that prisoners will have unqualified access to health care, deliberate
indifference to medical needs amounts to an Eighth Amendment violation only if those
needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992). The Ninth Circuit has
defined a “serious medical need” in the following ways:
failure to treat a prisoner’s condition [that] could result in
further significant injury or the unnecessary and wanton
infliction of pain[;] ... [t]he existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain ....
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (internal citations omitted),
overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en
banc).
As to the subjective standard, “deliberate indifference entails something more than
mere negligence, [but] is satisfied by something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at
835. A prison official or prison medical provider acts with “deliberate indifference...only
INITIAL REVIEW ORDER BY SCREENING JUDGE - 8

if the [prison official or provider] knows of and disregards an excessive risk to inmate
health and safety.” Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)
(internal quotation marks omitted), overruled on other grounds by Castro v. Cty. of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc). “Under this standard, the prison official
must not only ‘be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi v.
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837).
In the medical context, deliberate indifference can be “manifested by prison doctors
in their response to the prisoner’s needs or by prison guards in intentionally denying or
delaying access to medical care or intentionally interfering with the treatment once
prescribed.” Estelle, 429 U.S. at 104-05 (footnotes omitted). Medical malpractice or
negligence does not support a cause of action under the Eighth Amendment, Broughton v.
Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per curiam), and a delay in medical
treatment does not violate the Eighth Amendment unless that delay causes further harm,
McGuckin, 974 F.2d at 1060. Additionally, there is no constitutional right to an outside
medical provider one’s own choice. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.
1986) (“A prison inmate has no independent constitutional right to outside medical care
additional and supplemental to the medical care provided by the prison staff within the
institution.”).
“If a [prison official] should have been aware of the risk, but was not, then the
[official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson,
290 F.3d at 1188. If medical personnel have been “consistently responsive to [the inmate’s]
INITIAL REVIEW ORDER BY SCREENING JUDGE - 9

medical needs,” and the plaintiff has not shown that the medical personnel had “subjective
knowledge and conscious disregard of a substantial risk of serious injury,” there has been
no Eighth Amendment violation. Toguchi, 391 F.3d at 1061.
Differences in judgment as to appropriate medical diagnosis and treatment between
an inmate and prison medical providers—or, for that matter, between medical providers—
are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240,
242 (9th Cir. 1989). “[T]o prevail on a claim involving choices between alternative courses
of treatment, a prisoner must show that the chosen course of treatment ‘was medically
unacceptable under the circumstances,’ and was chosen ‘in conscious disregard of an
excessive risk’ to the prisoner’s health.” Toguchi, 391 F.3d at 1058 (alteration omitted)
(quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
Stated another way, a prison medical provider’s judgment in choosing one treatment
over another does not constitute deliberate indifference unless the chosen treatment “was
so inadequate that it demonstrated an absence of professional judgment, that is, that no
minimally competent professional would have so responded under those circumstances.”
Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998); see also Lamb v.
Norwood, 895 F.3d 756, 760 (10th Cir. 2018) (“[P]rison officials do not act with deliberate
indifference when they provide medical treatment even if it is subpar or different from what
the inmate wants.”). A plaintiff must plausibly allege that medical providers chose one
treatment over the plaintiff’s preferred treatment “even though they knew [the plaintiff’s
preferred treatment] to be medically necessary based on [the plaintiff’s] records and
prevailing medical standards.” Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1117 (N.D. Cal.
INITIAL REVIEW ORDER BY SCREENING JUDGE - 10

2015).
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 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.
Here, the allegations in the Complaint do not support a reasonable inference that
Defendant Little acted with deliberate indifference to Plaintiff’s serious medical needs.
Plaintiff may attempt to remedy this deficiency in an amended complaint.
5.

Standards for Amended Complaint
If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the

actions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See
Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v.
Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection
between each defendant’s actions and the claimed deprivation. Taylor, 880 F.2d at 1045;
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory allegations of
official participation in civil rights violations are not sufficient to withstand a motion to
dismiss” or to survive screening under 28 U.S.C. §§ 1915 and 1915A. Ivey v. Bd. of Regents
of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at 678 (“Nor
does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” (internal quotation marks and alteration omitted)).
Rather, for each cause of action against each defendant, Plaintiff must state the
following: (1) the name of the person or entity that caused the alleged deprivation of
INITIAL REVIEW ORDER BY SCREENING JUDGE - 11

Plaintiff’s constitutional rights; (2) facts showing the defendant is a state actor (such as
state employment or a state contract) or a private entity performing a state function; (3) the
dates on which the conduct of the defendant allegedly took place; (4) the specific conduct
or action Plaintiff alleges is unconstitutional; (5) the particular federal constitutional
provision (or state law provision) Plaintiff alleges has been violated; (6) facts alleging that
the elements of the violation are met—for example, Plaintiff must allege facts satisfying
the elements of an Eighth Amendment claim; (7) the injury or damages Plaintiff personally
suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant.
Further, any amended complaint must contain all of Plaintiff’s allegations in a single
pleading and cannot rely upon, attach, or incorporate by reference other pleadings or
documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed
as a matter of course or upon a motion to amend, must reproduce the entire pleading as
amended. The proposed amended pleading must be submitted at the time of filing a motion
to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An]
amended complaint supersedes the original, the latter being treated thereafter as nonexistent.”), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d
896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc.,
896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering
judgment against a party named in the initial complaint, but not in the amended complaint).
Plaintiff must set forth each different factual allegation in a separate numbered
paragraph. The amended complaint must be legibly written or typed in its entirety, and it
should be clearly designated as the “First Amended Complaint.” Plaintiff’s name and
INITIAL REVIEW ORDER BY SCREENING JUDGE - 12

address should be clearly printed at the top left corner of the first page of each document
filed with the Court.
If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to Review
the Amended Complaint.” If Plaintiff does not amend within 28 days, or if the amendment
does not comply with Rule 8, this case may be dismissed without further notice. See Knapp
v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly
refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable
to conclude that the litigant simply cannot state a claim.”).
ORDER
IT IS ORDERED:
1.

Plaintiff has 28 days within which to file an amended complaint as described
above. If Plaintiff does so, Plaintiff must file (along with the amended
complaint) a Motion to Review the Amended Complaint. If Plaintiff does not
amend within 28 days, this case may be dismissed without further notice.

2.

Plaintiff’s request for appointment of counsel (contained in the Complaint)
is DENIED without prejudice. Plaintiff may renew the request for counsel in
an amended complaint.

DATED: October 9, 2019
_________________________
David C. Nye
Chief U.S. District Court Judge

INITIAL REVIEW ORDER BY SCREENING JUDGE - 13