Storm v. McClusky et al
Filing
14
INITIAL REVIEW ORDER BY SCREENING JUDGE - Plaintiffs Motion for Appointment of Counsel (Dkt. 4 ) is DENIED. All other claims against all other Defendants are DISMISSED, and David McClusky, Dodds Hayden, Karen Neill, Ms. Johnson, and Shannon Chapel are TERMINATED as parties to this action. Defendants will be allowed to waive service of summons by executing, or having their counsel execute, the Waiver of Service of Summons as provided by Fed. R. Civ. P. 4(d) and returning it to the Court within 30 days. Pursuant to General Order 324, this action is hereby RETURNED to the Clerk of Court for random civil case assignment to a presiding judge, on the proportionate basis previously determined by the District Judges, having given due consideration to the existing caseload. 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 (lm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RICK STORM, a/k/a RICKIE STORM,
Case No. 1:23-cv-00502-DCN
Plaintiff,
INITIAL REVIEW ORDER BY
SCREENING JUDGE
v.
DAVID McCLUSKY; DODDS
HAYDEN; KAREN NEILL; JOSH
TEWALT; RONA SIEGERT; RANDY
VALLEY; RADHA SADACHARAN;
KAREN BOYER; HSA JOHNSON;
KASEY HOLMES; SHANNON
CHAPEL; HEATHER CROSSLEY;
and CENTURION MEDICAL
CORPORATION,
Defendants.
The Clerk of Court conditionally filed Plaintiff Rick Storm’s Complaint as a result
of Plaintiff’s status as an inmate. The Court now reviews the Complaint to determine
whether it or any of the claims contained therein should be summarily dismissed under 28
U.S.C. § 1915A. Having reviewed the record, and otherwise being fully informed, the
Court enters the following Order.
1.
Pleading Standards and Screening Requirement
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). Under modern pleading standards,
Rule 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)
INITIAL REVIEW ORDER BY SCREENING JUDGE - 1
(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). “[D]etailed factual allegations” are not
required, but a plaintiff must offer “more than ... unadorned, the-defendant-unlawfullyharmed-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). Bare allegations that amount to a mere restatement of the elements of a
cause of action, without adequate factual support, are not enough.
The Prison Litigation Reform Act (“PLRA”)1 requires that the Court 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. 28 U.S.C. § 1915A. The Court must
dismiss any claims that do not have adequate factual support or are frivolous or malicious.
Id.
The Court also must dismiss claims that fail to state a claim upon which relief may
be granted or that seek monetary relief from a defendant who is immune from such relief.
Id. These last two categories—together with claims that fall outside a federal court’s
1
Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq.
INITIAL REVIEW ORDER BY SCREENING JUDGE - 2
narrow grant of jurisdiction—encompass those claims that might, or might not, have
factual support but nevertheless are barred by a well-established legal rule.
The Court liberally construes the pleadings to determine whether a case should be
dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for
the absence of a cognizable legal theory. The critical inquiry is whether a constitutional
claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v.
Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (discussing Federal Rule of Civil Procedure
12(b)(6)), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (stating that Rule 12(b)(6) authority to dismiss claims was
expanded by the PLRA, giving courts power to dismiss deficient claims, sua sponte, before
or after opportunity to amend).
2.
Factual Allegations
Plaintiff is a prisoner in the custody of the Idaho Department of Correction
(“IDOC”), currently incarcerated at the Idaho State Correctional Center (“ISCC”). Plaintiff
claims that he has been denied adequate medical treatment in prison with respect to severe
pain in Plaintiff’s ankle. Specifically, Plaintiff asserts that he has not been provided with
adequate pain medication or with timely injections of his prescribed steroid. Compl., Dkt.
3, at 9.
Plaintiff sues the following Defendants: (1) David McClusky, Dodds Hayden, and
Karen Neill, who are members of the Idaho Board of Correction; (2) Josh Tewalt, Randy
Valley, and Rona Siegert, who are, respectively, the Director of the IDOC, the Warden of
ISCC, and the Health Services Director for the IDOC; (3) “Centurion Medical
INITIAL REVIEW ORDER BY SCREENING JUDGE - 3
Corporation,”2 purportedly the private company providing medical treatment to Idaho
inmates under contract with the IDOC; and (4) Radha Sadacharan, Karen Boyer, Ms.
Johnson, Kasey Holmes, Shannon Chapel, and Heather Crossley, who are medical
providers or medical administrators with Centurion. Plaintiff seeks damages and injunctive
relief.
3.
Discussion
A.
Claim 1: Breach of Contract
In his first claim, Plaintiff asserts that IDOC Defendants Tewalt, Siegert,
McCluskey, Hayden, and Neill, as well as Centurion, have failed to abide by the contract
between the IDOC and Centurion for providing inmates with adequate medical treatment.
Compl. at 8. Plaintiff claims that he is a third-party beneficiary of that contract and,
therefore, can assert a breach of contract claim under state law.3 Id. The Court disagrees.
In a case involving a construction contract between a contractor and a public entity,
the Idaho Supreme Court stated that, “[a]bsent a manifested intent to the contrary,” such
contracts “are generally not considered as being for the benefit of third persons. They are
for the benefit of the state and the contractor.” Stewart v. Arrington Const. Co., 446 P.2d
895, 901 (Idaho 1968). The Court has found no authority from the Idaho state courts
2
According to the website of the Idaho Secretary of State, the true name of this business entity appears to
be “Centurion of Idaho, LLC.” See https://sosbiz.idaho.gov/search/business (accessed May 17, 2024).
3
Title 28 U.S.C. § 1367 provides that a district court may exercise supplemental jurisdiction over state
claims when they are “so related” to the federal claims “that they form part of the same case or controversy
under Article III of the United States Constitution.” In other words, the supplemental jurisdiction power
extends to all state and federal claims which one would ordinarily expect to be tried in one judicial
proceeding. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). Because the allegations here
all involve a “common nucleus of operative fact,” id., the Court will exercise its supplemental jurisdiction
over Plaintiff’s state law claims.
INITIAL REVIEW ORDER BY SCREENING JUDGE - 4
suggesting that medical treatment contracts between the IDOC and a private medical
provider should be treated any differently from construction contracts.
The statutes governing the IDOC do not indicate a “manifested intent” to grant thirdparty beneficiary rights to Idaho state prisoners. See id. Therefore, Plaintiff is not an
intended third-party beneficiary of the contract between the IDOC and Centurion, and his
breach of contract claims are implausible.
B.
Claims 2 and 4: Violations of the Eighth Amendment
Plaintiff brings his conditions-of-confinement 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).
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, and a defendant whose only role in a constitutional violation involved
the denial of an administrative grievance cannot be held liable under § 1983, Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
INITIAL REVIEW ORDER BY SCREENING JUDGE - 5
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 that
violated the Constitution, or knowingly refused to terminate a series of such acts, which
the supervisor “knew or reasonably should have known would cause others to inflict a
constitutional injury”; (2) knowingly failed to act or acted improperly “in the training,
supervision, or control of his subordinates”; (3) acquiesced in the constitutional
deprivation; or (4) engaged in “conduct that showed a reckless or callous indifference to
the rights of others.” Id. at 1205–09 (internal quotation marks omitted). 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).
To bring a § 1983 claim against a private entity performing a government function,
such as Centurion, 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). See also
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to
private entities performing a government function). 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
INITIAL REVIEW ORDER BY SCREENING JUDGE - 6
amounted to deliberate indifference to 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 entity also “may be held liable under
§ 1983 when the individual who committed the constitutional tort was an official with final
policy-making authority” or when “such an official ratified a subordinate’s
unconstitutional decision or action and the basis for it.” Clouthier v. County of Contra
Costa, 591 F.3d 1232, 1250 (9th Cir. 2010), overruled in part on other grounds by Castro
v. Cty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc).
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).
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.
The Eighth Amendment to the United States Constitution protects prisoners against
cruel and unusual punishment and guarantees prisoners the right to minimally adequate
conditions of confinement. To state a claim under the Eighth Amendment, prisoners must
INITIAL REVIEW ORDER BY SCREENING JUDGE - 7
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 treatment in prison.
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, “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 ....
INITIAL REVIEW ORDER BY SCREENING JUDGE - 8
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.’” 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,
INITIAL REVIEW ORDER BY SCREENING JUDGE - 9
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 know of a
substantial risk to an inmate’s 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 “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.
“There is not one proper way to practice medicine in a prison, but rather a range of
acceptable courses based on prevailing standards in the field.” Jackson v. Kotter, 541 F.3d
688, 697 (7th Cir. 2008) (internal quotation marks omitted). Accordingly, mere 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,
INITIAL REVIEW ORDER BY SCREENING JUDGE - 10
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 prove
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). To violate the Eighth Amendment, the choice of
treatment must have been “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, 899 F.3d 1159, 1162 (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.”).
Accordingly, prison medical providers do not act with deliberate indifference solely
by disagreeing with an outside doctor’s treatment recommendation or by choosing a
different treatment than that requested by an inmate. However, if the prison provider’s
chosen treatment proves ineffective, a continued refusal to try other treatments may
constitute deliberate indifference.
In Snow v. McDaniel, for example, the Ninth Circuit held that a genuine factual
issue existed as to whether providers violated the Eighth Amendment by denying double
hip replacement surgery to an inmate whose hips had degenerated so badly that he could
INITIAL REVIEW ORDER BY SCREENING JUDGE - 11
not walk and who was in constant, severe pain. 681 F.3d at 988. Evidence suggested that
providers had “ignored outside expert advice, relying solely on their own medical judgment
for three years before eventually approving surgery.” Id. This was sufficient to raise an
inference of deliberate indifference even though a “medication-only course of treatment
may have been medically acceptable for a certain period of time.” Id. At some point,
ignoring a “long term” recommendation of an outside provider may become “medically
unacceptable.” Id.
A court’s review of a prison medical provider’s choice of treatment must be
especially deferential where the issue is the type or amount of pain medication an inmate
should receive. In such cases, the court “is asked to pass judgment on the attempts by prison
medical staff to navigate between” the risk of “debilitating pain” and the competing risk of
addiction. Baker v. Stevenson, 605 F. App’x 514, 519 (6th Cir. 2015) (unpublished). Where
a prison medical provider believes in good faith that a certain course of pain treatment
might “create or enable” a risk of addiction, the provider’s decision not to provide that
treatment “cannot be considered an act of deliberate indifference.” Id. The Constitution
“does not impose a constitutional obligation upon prison officials” or prison medical
providers “to enable a prisoner’s substance abuse or addiction problem.” Id. at 518.
Non-medical prison 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
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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).
Plaintiff’s Complaint, liberally construed, appears to state colorable Eighth
Amendment medical treatment claims against Defendants Sadacharan, Boyer, Holmes,
Crossley, and Siegert. These Defendants are all described as either (1) personally
participating in Plaintiff’s medical treatment, (2) having been made aware of the allegedly
inadequate treatment, failing to act to remedy the situation, or (3) deciding to reject a
medical specialist’s treatment plan. See Taylor, 880 F.2d at 1045; Starr, 652 F.3d at 1207.
The Complaint also states a plausible Eighth Amendment claim against Centurion.
The allegations that Plaintiff has consistently sought adequate and timely medical
treatment, yet consistently has been denied such treatment, support a reasonable inference
that Centurion has a policy, practice, or custom amounting to deliberate indifference. See
Mabe, 237 F.3d at 1110–11.
In addition, the Complaint states plausible Eighth Amendment claims for injunctive
relief against IDOC Defendants Tewalt and Valley, who appear to be ultimately
responsible for ensuring that inmates at ISCC receive adequate medical care. However,
because neither of these Defendants is alleged to have personally participated in Plaintiff
medical treatment, or to have known of and failed to remedy the alleged constitutional
violations, Plaintiff may not proceed on his claims for monetary damages against these
Defendants.
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Finally, the Complaint does not state plausible § 1983 claims against Defendants
McCluskey, Hayden, Neill, Johnson, or Chapel. These Defendants are not alleged to have
participated in Plaintiff’s treatment. Nor does the Complaint assert that these Defendants
were aware of the alleged constitutional violations yet failed to act to prevent or remedy
those violations.
C.
Claim 3: Negligence
Plaintiff’s final cause of action asserts state law claims of negligence. “In a
negligence action the plaintiff must establish the following elements: ‘(1) a duty,
recognized by law, requiring the defendant to conform to a certain standard of conduct; (2)
a breach of duty; (3) a causal connection between the defendant’s conduct and the resulting
injuries; and (4) actual loss or damage.’” Jones v. Starnes, 245 P.3d 1009, 1012 (Idaho
2011) (quoting Hansen v. City of Pocatello, 184 P.3d 206, 208 (Idaho 2008)). A person
breaches a duty, and thus commits negligence, when that person acts in a manner in which
a reasonable person would not. See Steed v. Grand Teton Council of the Boy Scouts of Am.,
Inc., 172 P.3d 1123, 1128–29 and n.3 (Idaho 2007) (describing the reasonable person
standard as the “negligence standard of care”).
Additionally, to succeed on a medical negligence (or malpractice) claim, the
plaintiff must “affirmatively prove by direct expert testimony and by a preponderance of
all the competent evidence” that the defendant medical provider “negligently failed to meet
the applicable standard of health care practice of the community in which such care
allegedly was or should have been provided.” Idaho Code § 6-1012. A plaintiff asserting a
medical malpractice claim also must first submit the claim to a prelitigation screening panel
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in accordance with Idaho Code § 6-1001.
The Complaint states plausible negligence or medical malpractice claims against
Defendants Tewalt, Valley, Siegert, Sadacharan, Boyer, Holmes, Crossley, and Centurion.
Plaintiff’s negligence claims against Defendants Johnson and Chapel are implausible
because the Complaint contains no specific allegations against these Defendants.
4.
Request for Appointment of Counsel
Plaintiff also seeks appointment of counsel. See Dkt. 4. Unlike criminal defendants,
prisoners and indigents in civil actions have no constitutional right to counsel unless their
physical liberty is at stake. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). Whether
a court appoints counsel for indigent litigants is within the court’s discretion. Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
In civil cases, counsel should be appointed only in “exceptional circumstances.” Id.
To determine whether exceptional circumstances exist, the court should evaluate two
factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the
plaintiff to articulate the claims pro se considering the complexity of legal issues involved.
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive, and
both must be evaluated together. Id.
Plaintiff’s Complaint, liberally construed, appears to state a claim upon which relief
could be granted if the allegations are proven at trial. However, without more than the bare
allegations of the Complaint, the Court does not have a sufficient basis upon which to
assess the merits at this point in the proceeding. The Court also finds that Plaintiff has
articulated the claims sufficiently, and that the legal issues in this matter are not complex.
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Based on the foregoing, the Court will deny Plaintiff’s request for appointment of counsel.
If it seems appropriate later in this litigation, the Court will reconsider appointing counsel.
A federal court has no authority to require attorneys to represent indigent litigants
in civil cases under 28 U.S.C. § 1915(e)(1) or under the Court’s inherent authority. Mallard
v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) (holding that the
appointment of counsel provision in § 1915, formerly found in subsection (d), does not
“authorize[] a federal court to require an unwilling attorney to represent an indigent litigant
in a civil case”); Veenstra v. Idaho State Bd. of Corr., Case No. 1:15-cv-00270-EJL (D.
Idaho May 4, 2017) (“[The Court] does not have inherent authority to compel an attorney
to represent Plaintiffs pro bono.”). Rather, when a Court “appoints” an attorney, it can do
so only if the attorney voluntarily accepts the assignment. Id. The Court has no funds to
pay for attorneys’ fees in civil matters such as this one, and it is often difficult to find
attorneys willing to work on a case without payment—especially in prisoner cases, where
contact with the client is particularly difficult. For these reasons, Plaintiff should attempt
to procure counsel on a contingency or other basis, if possible.
5.
Conclusion
Plaintiff may proceed as outlined above. This Order does not guarantee that
Plaintiff’s claims will be successful. Rather, it merely finds that some are plausible,
meaning that the claims will not be summarily dismissed at this time but will proceed to
the next stage of litigation. This Order is not intended to be a final or a comprehensive
analysis of Plaintiff’s claims.
Defendants may still file a motion for dismissal or motion for summary judgment if
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the facts and law support such a motion.4 Because (1) prisoner filings must be afforded a
liberal construction, (2) governmental officials often possess the evidence prisoners need
to support their claims, and (3) many defenses are supported by governmental records, an
early motion for summary judgment—rather than a motion to dismiss—is often a more
appropriate vehicle for asserting procedural defenses such as non-exhaustion or entitlement
to qualified immunity.
ORDER
IT IS ORDERED:
1.
Plaintiff’s Motion for Appointment of Counsel (Dkt. 4) is DENIED.
2.
Plaintiff may proceed on the following claims: (1) Eighth Amendment
claims against Defendants Siegert, Centurion, Sadacharan, Boyer, Holmes,
and Crossley (for damages and injunctive relief), as well as Defendants
Tewalt and Valley (for injunctive relief only); (2) negligence or medical
malpractice claims against Defendants Tewalt, Valley, Siegert, Sadacharan,
Boyer, Holmes, Crossley, and Centurion.
3.
All other claims against all other Defendants are DISMISSED, and David
McClusky, Dodds Hayden, Karen Neill, Ms. Johnson, and Shannon Chapel
are TERMINATED as parties to this action. If Plaintiff later discovers facts
sufficient to support a claim that has been dismissed, Plaintiff may move to
4
The standards for a motion to dismiss for failure to state a claim under Rule 12(b)(6) are the same standards
that the Court has used to screen the Complaint under § 1915A. Therefore, motions to dismiss for failure
to state a claim are disfavored in cases subject to § 1915A and may be filed only in extraordinary
circumstances.
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amend the complaint to assert such claims.5
4.
Defendants will be allowed to waive service of summons by executing, or
having their counsel execute, the Waiver of Service of Summons as provided
by Fed. R. Civ. P. 4(d) and returning it to the Court within 30 days. If
Defendants choose to return the Waiver of Service of Summons, the answer
or pre-answer motion will be due in accordance with Rule 12(a)(1)(A)(ii).
Accordingly, the Clerk of Court will forward a copy of the Complaint (Dkt.
3), a copy of this Order, and a Waiver of Service of Summons to the
following counsel:
a.
Karin Magnelli, Deputy Attorney General for the State of Idaho,
Idaho Department of Corrections, 1299 North Orchard, Ste. 110,
Boise, Idaho 83706, on behalf of the IDOC Defendants.
b.
Aynsley Harrow Mull, Associate General Counsel for Centurion, at
Ms. Mull’s email address on file with the Court, on behalf of the
Centurion Defendants.
5.
Should any entity determine that the individuals for whom counsel for the
entity was served with a waiver are not, in fact, its employees or former
5
Any amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely
upon or incorporate by reference prior pleadings. 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 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).
INITIAL REVIEW ORDER BY SCREENING JUDGE - 18
employees, or that its attorney will not be appearing for the entity or for
particular former employees, it should file a notice within the CM/ECF
system, with a copy mailed to Plaintiff, identifying the individuals for whom
service will not be waived.
6.
If Plaintiff receives a notice indicating that service will not be waived for an
entity or for certain individuals, Plaintiff will have an additional 90 days from
the date of such notice to file a notice of physical service addresses of the
remaining Defendants, or claims against them may be dismissed without
prejudice without further notice.
7.
Unless otherwise ordered, the parties must follow the deadlines and
guidelines in the Standard Disclosure and Discovery Order for Pro Se
Prisoner Civil Rights Cases, issued with this Order.
8.
Any amended pleadings must be submitted, along with a motion to amend,
within 150 days after entry of this Order.
9.
Dispositive motions must be filed by the later of (a) 300 days after entry of
this Order or (b) 300 days after entry of an order denying all or part of a
preliminary Rule 12(b) or Rule 56 motion.
10.
Each party must ensure that all documents filed with the Court are
simultaneously served upon the opposing party (through counsel if the party
has counsel) by first-class mail or via the CM/ECF system, pursuant to
Federal Rule of Civil Procedure 5. Each party must sign and attach a proper
mailing certificate to each document filed with the court, showing the manner
INITIAL REVIEW ORDER BY SCREENING JUDGE - 19
of service, date of service, address of service, and name of person upon whom
service was made.
11.
The Court will not consider ex parte requests unless a motion may be heard
ex parte according to the rules and the motion is clearly identified as
requesting an ex parte order, pursuant to Local Rule of Civil Practice before
the United States District Court for the District of Idaho 7.2. (“Ex parte”
means that a party has provided a document to the court, but that the party
did not provide a copy of the document to the other party to the litigation.)
12.
All Court filings requesting relief or requesting that the Court make a ruling
or take an action of any kind must be in the form of a pleading or motion,
with an appropriate caption designating the name of the pleading or motion,
served on all parties to the litigation, pursuant to Federal Rule of Civil
Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United
States District Court for the District of Idaho 5.1 and 7.1. The Court will not
consider requests made in the form of letters.
13.
No party may have more than three pending motions before the Court at one
time, and no party may file a motion on a particular subject matter if that
party has another motion on the same subject matter currently pending before
the Court. Motions submitted in violation of this Order may be stricken,
summarily denied, or returned to the moving party unfiled.
14.
Plaintiff must notify the Court immediately if Plaintiff’s address changes.
Failure to do so may be cause for dismissal of this case without further notice.
INITIAL REVIEW ORDER BY SCREENING JUDGE - 20
15.
Pursuant to General Order 324, this action is hereby RETURNED to the
Clerk of Court for random civil case assignment to a presiding judge, on the
proportionate basis previously determined by the District Judges, having
given due consideration to the existing caseload.
DATED: July 9, 2024
_________________________
David C. Nye
Chief U.S. District Court Judge
INITIAL REVIEW ORDER BY SCREENING JUDGE - 21
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