Harmon v. City of Twin Falls et al

Filing 6

INITIAL REVIEW ORDER BY SCREENING JUDGE. IT IS ORDERED The Complaint fails to state a claim upon which relief may be granted. Plaintiff has 60 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 60 days, this case may be dismissed without further notice. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if Plaintiff no longer intends to pursue this case. Plaintiff's request for class certification (contained in the Complaint) is DENIED. 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 (kt)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JASON HARMON,
Case No. 1:20-cv-00525-BLW
Plaintiff,
INITIAL REVIEW ORDER BY
SCREENING JUDGE

v.
CITY OF TWIN FALLS; TWIN
FALLS COUNTY; IDAHO
DEPARTMENT OF CORRECTION;
and STATE OF IDAHO,
Defendants.

The Clerk of Court conditionally filed Plaintiff Harmon’s Complaint as a result of
Plaintiff’s status as an inmate and in forma pauperis request.1 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

1

Plaintiff Harmon was originally a co-plaintiff, along with Michael E. Jackson, in Jackson v. City of
Twin Falls, Case No. 1:20-cv-00525-BLW. Plaintiff Harmon’s claims have been severed into this new
action. See Dkt. 5.

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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).
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). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more
than ... unadorned, the-defendant-unlawfully-harmed-me accusation[s].” 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). And, a court is not required to comb through
a plaintiff’s exhibits or other filings to determine if the complaint states a plausible
claim.2

2

Therefore, in its review under §§ 1915 and 1915A, the Court has reviewed only the Complaint found at
Dkt. No. 1, not the affidavit attached to the Complaint. See also General Order 342, In Re: Procedural
Rules for Prisoner Civil Case Filings and for Prisoner E-Filing Program, § A(1)(b)-(c) (“No exhibits
may be attached to a complaint or any type of amended complaint, except those showing exhaustion of

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3.

Factual Allegations
Plaintiff is a convicted inmate incarcerated in the Twin Falls County Jail, serving a

120-day sentence for driving while intoxicated. Dkt. 1-1. Plaintiff claims that he is at
substantial risk of coronavirus infection because he is in the high-risk category. Plaintiff
has serious heart problems, including two holes in his heart. Compl., Dkt. 1, at 3. Plaintiff
asserts generally that inmates in jails and prisons are especially vulnerable to the
pandemic. Id. at 5. However, the Complaint does not provide any specific allegations
about Plaintiff’s medical treatment, about the conditions in the Twin Falls County Jail
that have allegedly created an unsafe environment, or about the response to the pandemic
undertaken by jail officials.
4.

Discussion
Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court

will, however, grant Plaintiff 60 days to amend the Complaint. Any amended complaint
should take into consideration the following.
A.

Legal Standards Governing Plaintiff’s Claims

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

administrative remedies[,] [and] [n]o affidavits may be attached to a complaint or any type of amended
complaint.”).

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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).
Plaintiff has not sued any individual Defendants, only governmental entities. To
bring a § 1983 claim against a local governmental entity, such as Twin Falls County or
the City of Twin Falls, a plaintiff must allege that the execution of an official policy or
unofficial custom inflicted the injury of which the plaintiff complains, as required by
Monell v. Department of Social Services of New York, 436 U.S. 658, 694 (1978). Under
Monell, the requisite elements of a § 1983 claim against such an entity are the following:
(1) the plaintiff was deprived of a constitutional right; (2) the entity had a policy or
custom; (3) the policy or custom amounted to deliberate indifference to the plaintiff’s
constitutional right; and (4) the policy or custom was the moving force behind the
constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110–11 (9th Cir.
2001).
An unwritten policy or custom must be so “persistent and widespread” that it
constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–168 (1970)). “Liability for improper
custom may not be predicated on isolated or sporadic incidents; it must be founded upon
practices of sufficient duration, frequency and consistency that the conduct has become a
traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
1996).
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If Plaintiff decides to name an individual in an amended complaint, he should be
aware that governmental officials or jail 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)). 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 may also seek injunctive relief from officials who have direct
responsibility in the area in which the plaintiff seeks relief. See Rounds v. Or. State Bd. of
Higher Educ., 166 F.3d 1032, 1036 (9th Cir. 1999).

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Plaintiff asserts that he is at an increased risk from COVID-19 and that, therefore,
the conditions of his detention create a substantial risk of serious harm. Because Plaintiff
is a convicted inmate, his claims of unconstitutional conditions of confinement are
analyzed under the Eighth Amendment, which protects prisoners against cruel and
unusual punishment.3
To state a claim under the Eighth Amendment, inmates 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 the plaintiff to satisfy
both (1) an objective standard, “that the deprivation was serious enough to constitute
cruel and unusual punishment,” and (2) a subjective standard, that the defendant acted
with “deliberate 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 and mental health
treatment in prison. Jail and prison officials or 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).

Plaintiff’s claims under the Due Process Clause of the Fifth Amendment are implausible because that
clause applies only to the federal government, not to states or local governmental entities.
3

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Regarding the objective standard for prisoners’ medical care claims, “society does
not expect that prisoners will have unqualified access to health care.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992). Therefore, “deliberate indifference to medical needs
amounts to an Eighth Amendment violation only if those needs are ‘serious.’” Id. 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 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.’”
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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 of 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. Moreover, even prison officials or medical providers who did
actually know of a substantial risk to inmate health will not be liable under § 1983 “if
they responded reasonably to the risk, even if the harm ultimately was not averted.”
Farmer, 511 U.S. at 844. If medical personnel have been “consistently responsive to [the
inmate’s] medical needs,” and the plaintiff has not shown that the medical personnel had

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“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 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. 2015).
Non-medical personnel generally are entitled to rely on the opinions of medical
professionals with respect to the 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, 681 F.3d at 986 (internal quotation marks omitted); 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
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reason to believe (or actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner”) (internal quotation marks omitted).
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.
B.

Claims Against the Idaho Department of Correction (“IDOC”) and the
State of Idaho

Plaintiff complains of county jail conditions, not state prison conditions.
Therefore, it is unclear why Plaintiff has named the State of Idaho or the IDOC as
Defendants, and Plaintiff’s claims against those Defendants are implausible.
In addition, the Eleventh Amendment prohibits a federal court from entertaining a
suit brought by a citizen against a state or state entity absent a waiver of state sovereign
immunity. Hans v. Louisiana, 134 U.S. 1, 16-18 (1890); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not constitute such a waiver, nor
has the State of Idaho itself waived its sovereign immunity from constitutional claims.
Quern v. Jordan, 440 U.S. 332, 342–44 (1979); Esquibel v. Idaho, No. 1:11-cv-00606BLW, 2012 WL 1410105, at *6 (D. Idaho Apr. 23, 2012) (unpublished). Finally, only a
“person” may be sued pursuant to 42 U.S.C. § 1983, and a state or state entity is not
considered a “person” under that statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58,

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71 (1989). Thus, the State of Idaho and the IDOC should be omitted from any amended
complaint.
C.

Claims against the City of Twin Falls and Twin Falls County

Plaintiff’s remaining claims are asserted against the City of Twin Falls and Twin
Falls County, Idaho. As with the State of Idaho and the IDOC, it is unclear why Plaintiff
has named the City of Twin Falls as a Defendant—given that Plaintiff is challenging the
conditions of detention in the county jail.
Nevertheless, the allegations in the Complaint do not support a reasonable
inference that a policy or custom of either governmental entity amounts to deliberate
indifference, as required by Monell. Plaintiff alleges that, as a result of his state of health
and the conditions in the jail, he is at a high risk of being infected by the coronavirus. But
Plaintiff does not describe any of those jail conditions or provide any other specific facts
in support of his claim. Therefore, Plaintiff has not plausibly alleged that the City or
County has acted with objective deliberate indifference. See Gordon, 888 F.3d at 1124.
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
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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
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; (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
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thereafter as non-existent.”), 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
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 60 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.

The Complaint fails to state a claim upon which relief may be granted.
Plaintiff has 60 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

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Plaintiff does not amend within 60 days, this case may be dismissed
without further notice. Alternatively, Plaintiff may file a Notice of
Voluntary Dismissal if Plaintiff no longer intends to pursue this case.4
2.

Plaintiff’s request for class certification (contained in the Complaint) is
DENIED.

DATED: January 6, 2021

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

4

A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for frivolity, for
maliciousness, or for failure to state a claim upon which relief may be granted and, therefore, does not
count as a “strike” under 28 U.S.C. § 1915(g).

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