Scott v. Thompson et al

Filing 7

INITIAL REVIEW ORDER. Plaintiff shall file an amended complaint within 30 days that states facts showing that Defendants are state actors and that he complied with the statute of limitations or that equitable tolling or estoppel should be applied to render his claims timely. Failure to take any further action will result in dismissal of this case with prejudice under Federal Rule of Civil Procedure 41(b) and issuance of a strike under 28 U.S.C. § 1915(g), without further notice. 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

ALEX DAVID TONY SCOTT,
Plaintiff,
Case No. 1:20-cv-00346-BLW
vs.
SANDRA THOMPSON, M.D. and
ALBERTSON’S SAV-ON
PHARMACY,

INITIAL REVIEW ORDER BY
SCREENING JUDGE

Defendants.

The Complaint of Plaintiff Alex David Tony Scott was conditionally filed by the
Clerk of Court due to Plaintiff’s status as an inmate and request for in forma pauperis
status. (Dkt. 3, 1.) A “conditional filing” means that Plaintiff must obtain authorization
from the Court to proceed. After reviewing the Complaint, the Court has determined that
Plaintiff’s Complaint fails to state a federal claim upon which relief can be granted.
REVIEW OF COMPLAINT
1. Factual Allegations
Plaintiff alleges that, between August 18, 2014 and July 23, 2016, a private
physician, Dr. Sandra A. Thompson, M.D., prescribed him Norco tablets, knowing that
they were a highly addictive opioid medication, and Defendant Albertson’s Sav-On

Pharmacy filled the prescriptions. He asserts that he attempted suicide as a result of the
prescription, and that he eventually was sent to prison for illegal use of illicit drugs.
2. Standards of Law
Under modern pleading standards, Federal Rule of Civil Procedure 8 requires a
complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal/Twombly “facial
plausibility” standard is met when a complaint contains “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id., citing Twombly, 550 U.S. at 556. A plaintiff must provide sufficient factual
allegations to show that there is “more than a sheer possibility that a defendant has acted
unlawfully.” Ibid. “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.’” Ibid.
In addition, the Prison Litigation Reform Act (PLRA)1 requires the Court to screen
all pro se prisoner and pauper complaints to determine whether they have stated a claim
upon which relief can be granted before such complaints are served on the defendants. 28
U.S.C. §§ 1915 & 1915A. The Court must dismiss any claims that are frivolous or
malicious, that fail to state a claim upon which relief may be granted, or that seek

1

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

monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
The Court liberally construes a plaintiff’s pleadings to determine whether the case
should be dismissed for lack of a cognizable legal theory or a failure to plead sufficient
facts to support a cognizable legal theory, under the Iqbal/Twombly standard. 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). Rule
12(b)(6) authority to dismiss claims as explained in Jackson was expanded by the PLRA,
giving courts power to dismiss deficient claims sua sponte, either before or after
opportunity to amend as explained in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000). Under the PLRA, the Court retains screening authority to dismiss claims “at any
time” during the litigation, regardless of fee payment. 28 U.S.C. § 1915(e)(2)(B).
Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. 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).
For Plaintiff’s purposes, 42 U.S.C. § 1983 is an implementing statute that makes it
possible to bring a cause of action under the Amendments of the United States
Constitution.

3. Discussion of Claims Asserted against Private Actors
Section 1983 actions can be asserted only against state actors, or, in very particular
circumstances, against private actors acting under color of law. It is presumed that private
conduct does not constitute governmental action. See Harvey v. Harvey, 949 F.2d 1127,
1130 (11th Cir. 1992) (“Only in rare circumstances can a private party be viewed as a
‘state actor’ for section 1983 purposes.”); Price v. Hawaii, 939 F.2d 702, 707–08 (9th
Cir. 1991) (“[P]rivate parties are not generally acting under color of state law.”).
For private conduct to constitute governmental action, “something more” must be
present. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982). Courts have used
four different factors to identify what constitutes “something more”: (1) public function,
(2) joint action, (3) governmental compulsion or coercion, and (4) governmental nexus.
Id.; Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835–36 (9th Cir. 1999).
“While these factors are helpful in determining the significance of state involvement,
there is no specific formula for defining state action.” Howerton v. Gabica, 708 F.2d 380,
383 (9th Cir. 1983).
Plaintiff has not alleged facts plausibly showing that the private person and entity
he has named in his Complaint were acting under color of state law. Rather, it appears
that his claims appear to be state law causes of action that should be asserted in state
court.

4. Discussion of Statute of Limitations Issue
The statute of limitations period for filing a civil rights lawsuit under 42 U.S.C. §
1983 is determined by the statute of limitations period for personal injuries in the state
where the claim arose. 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 provides for a two-year statute of limitations for professional malpractice,
personal injury, and wrongful death actions. Federal civil rights actions arising in Idaho
are governed by this two-year statute of limitations.
Although the Court relies upon the state statute of limitations to determine the
time for filing a claim, the Court uses federal law to determine when a claim accrues.
Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir. 1994). The Ninth Circuit has
determined that a claim accrues when the plaintiff knows, or should know, of the injury
that is the basis of the cause of action. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.
1996). Under this “discovery rule,” the statute begins to run once a plaintiff knows of his
injury and its cause. Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986). A
claim accrues upon awareness of an actual injury, “and not when the plaintiff suspects a
legal wrong.” Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1049 (9th
Cir. 2008).
Under limited circumstances, untimely claims sometimes can be salvaged. State
law governs equitable excuses related to the statute of limitations. 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.
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 statue may have already run.” J.R. Simplot Co., v. Chemetics International,
Inc., 887 P.2d 1039, 1041 (Idaho 1994).
If claims are untimely filed and the untimeliness cannot be excused, they are
subject to dismissal for fail to state a claim upon which relief can be granted, and are also
subject to a strike under 28 U.S.C. § 1915(g). See Belanus v. Clark, 796 F.3d 1021, 1030
(9th Cir. 2015). However, a complaint should not be dismissed without leave to amend
unless it is clear that the complaint’s deficiencies cannot be cured. See Lopez v. Smith,
203 F.3d 1122, 1130-31 (9th Cir. 2000).
The latest act of Defendants of which Plaintiff complains occurred on June 23,
2016. That means Plaintiff’s lawsuit should have been filed no later than June 23, 2018.
Plaintiff’s Complaint is approximately four years too late. Therefore, it is subject to
dismissal with prejudice. Plaintiff will be provided with an opportunity to file an
amended complaint to show that he should be permitted to proceed.

ORDER
IT IS ORDERED:
1. Plaintiff shall file an amended complaint within 30 days that states facts
showing that Defendants are state actors and that he complied with the
statute of limitations or that equitable tolling or estoppel should be applied
to render his claims timely.
2. Failure to take any further action will result in dismissal of this case with
prejudice under Federal Rule of Civil Procedure 41(b) and issuance of a
strike under 28 U.S.C. § 1915(g), without further notice.

DATED: October 13, 2020

_________________________
B. Lynn Winmill
U.S. District Court Judge