Wilkinson v. Centurion Medical, et al.

Filing 7

INITIAL REVIEW ORDER BY SCREENING JUDGE - IT IS ORDERED: Plaintiff may proceed on his Eighth Amendment claims against Mary Stoner, Gen Brewer, and Dr. Kate Wilks. All other claims against all other Defendants are DISMISSED, and all other Defendants are TERMINATED as parties to this action. Plaintiff's Application for in Forma Pauperis Status (Dkt. 1 ) is DENIED. The Clerk of Court will forward a copy of the Complaint (Dkt. 3 ), a copy of this Order, a copy of the Motion for Preliminary Injunctive Relief (Dkt. 6 ), and a Waiver of Service of Summons to the following counsel, and the Clerk of Court shall particularly note in the email to counsel that, if the waiver is executed and returned, the response to the Motion for Preliminary Injunctive Relief is due before the answer, within 45 day after entry of this Order: Aynsley Harrow Mull, Associate General Counsel for Centurion, at Ms. Mulls email address on file with the Court, on behalf of Defendants Mary Stoner, Gen Brewer, and Dr. Kate Wilks. Signed by Judge Amanda K Brailsford. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ac)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JEREMY DEAN WILKINSON, #47239,
Plaintiff,
vs.

Case No. 1: 24-cv-00334-AKB
INITIAL REVIEW ORDER
BY SCREENING JUDGE

CENTURION MEDICAL; JOSH
TEWALT; WARDEN ROSS; HSA
MARY STONER; DON BREWER;
and DR. WILKES,
Defendants.

The Complaint of Plaintiff Jeremy Wilkinson, an Idaho Department of Correction (IDOC)
prisoner, was conditionally filed by the Clerk of Court. (Dkt. 3). A “conditional filing” means
Plaintiff must obtain authorization from the Court to proceed. All prisoner and pauper complaints
seeking relief against a government entity or official must be screened by the Court. 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 monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Plaintiff requests permanent injunctive relief and monetary damages from prison officials,
medical personnel, and Centurion (the private medical provider contracted to the state of Idaho to
provide medical care to prisoners). Plaintiff has also filed a request for preliminary injunctive
relief. (Dkt. 6). Because some of Plaintiff’s claims have no factual support or no proper legal basis,
he will be permitted to proceed in part, as explained below.

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REVIEW OF COMPLAINT
1. Standard of Law
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). Plaintiffs are required to state facts, and not
just legal theories, in a complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
To state a claim under 42 U.S.C. § 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).
To state an Eighth Amendment claim for lack of adequate prison medical care, a complaint must
contain facts alleging that prison officials’ “acts or omissions [were] sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Hudson v. McMillian, 503 U.S. 1, 8
(1992) (Thomas, J. dissenting) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However,
“[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.’” Id.
Deliberate indifference exists when an official knows of and disregards a serious medical
condition or when an official is “aware of facts from which the inference could be drawn that a
substantial risk of harm exists,” and actually draws such an inference. Farmer v. Brennan, 511
U.S. 825, 837 (1994). 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

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medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at
104-05.
2. Claims upon which Plaintiff May Proceed
Plaintiff asserts that prison medical providers have failed to provide him with adequate
treatment for loss of vision in his left eye, which is an especially serious problem because Plaintiff
has a prosthetic right eye. Complete loss of vision in his left eye would render him blind. He also
asserts that he has pain in his head, neck, ear, left eye, and behind his left eye that has been
inadequately treated.
A. Defendant Mary Stoner
Plaintiff asserts that Centurion Health Services Administrator (HSA) Mary Stoner knew he
was at risk of losing vision in his remaining eye, but that she scheduled him for five off-site visits
with the same neuro-ophthalmologist, knowing that doctor refused to see him. Stoner’s response
to Plaintiff’s grievance is that she could not find a different neuro-ophthalmologist who would
agree to see him. The primary question is the extent to which Stone attempted to find a substitute
specialist for Plaintiff. If her efforts were constitutionally adequate, then the secondary question
becomes what is required to secure constitutionally-adequate care for Plaintiff’s left eye in the
absence of a local neuro-ophthalmologist examination, e.g., transferring Plaintiff to an out-of-state
prison or scheduling care from a different type of specialist in Idaho?
The Court will require Stoner to respond to the Complaint and Motion for Preliminary
Injunctive Relief.
B. Defendant Dr. Kate Wilks
Dr. Kate Wilks is the state medical director and the ultimate medical decisionmaker for the
prison facility where Plaintiff resides. (Dkt. 3 at 16). Plaintiff alleges he has spoken many times to
Dr. Wilks about his urgent condition; in addition, IDOC administrator Rona Siegert has notified
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Dr. Wilks of Plaintiff’s problems through the prison grievance investigative procedures, but
Dr. Wilks has ignored Plaintiff’s serious health needs. Plaintiff may proceed against Dr. Wilks in
her individual capacity.
C. Defendant Gen Brewer
Gen Brewer is the Centurion Director of Nursing (DON). Plaintiff alleges that, when he
reported to Brewer that Plaintiff had been scheduled to see the same specialist five times, even
though the specialist refused to treat him, Brewer told Plaintiff that it was simply a scheduler’s
error, but Brewer did nothing to correct the recurring error and ensure that Plaintiff was scheduled
properly. Plaintiff may proceed against Brewer in her individual capacity. However, to proceed
past summary judgment, Plaintiff will be required to present facts that Brewer actually drew an
inference that a substantial risk of harm existed because of the eye specialist scheduling errors,
and yet Brewer chose to do nothing.
3. Claims Upon Which Plaintiff May Not Procced
A. Claims Against Centurion
To bring a § 1983 claim against a private entity performing a government function, a
plaintiff must allege that the execution of an official policy or unofficial custom inflicted the injury
of which the plaintiff complains. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694
(1978); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012) (Monell
applicable to private entities performing government functions). That is, “[an entity] can be found
liable under § 1983 only where the [entity] itself causes the constitutional violation at issue.” City
of Canton v. Harris, 489 U.S. 378, 385 (1989).
Under Monell, requisite elements of a § 1983 claim against a private entity performing a
state function 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
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plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the
constitutional violation. See Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d
1101, 1110-11 (9th Cir. 2001).
Plaintiff has provided insufficient allegations to state a claim against Centurion. Plaintiff
alleges that Centurion has policies or customs in place to willfully delay or deny expensive medical
treatment to inmates and to understaff the prison medical unit to save costs. The facts alleged to
support this cause of action are as follows: Plaintiff has submitted many requests for treatment for
his rapidly-diminishing eyesight and constant pain; Plaintiff had to wait months to see a medical
provider; Plaintiff was seen by physician’s assistants instead of medical doctors; when Plaintiff is
seen by a medical doctor, the doctor is unfamiliar with his medical history because the doctors are
all “recently hired”; if Plaintiff receives a diagnosis and plan of care, it is immediately overruled
by Centurion’s top administrators, causing Plaintiff to have to begin the process again. (Dkt. 3 at
5-6.)
Plaintiff’s speculative allegations do not show that Centurion has a policy to delay medical
treatment to inmates or understaff the medical unit to save money. Plaintiff’s own experience does
not show a policy or custom. His own experience may have been caused by the mere or gross
negligence of a scheduler or medical provider, or by the deliberate indifference of individuals,
acting in the absence of a policy or custom.
Without more, Plaintiff’s allegations tend to show only that Centurion, like any other
similar health care business, encourages its medical providers to try conservative treatment
methods before ordering more expensive and invasive methods. This is the same means of resource
management (cutting costs and maximizing profits) that insurance companies in the health care
industry use; without a theory and practice of careful resource management, there would be no

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health insurance companies. Individuals in regular society usually are required to demonstrate that
they have tried conservative treatments before doctors prescribe, and insurance companies pay for,
more expensive and invasive treatments. Plaintiff’s current allegations are insufficient to show that
Centurion administrators regularly require providers to forgo prescribing necessary treatment that
it considers too costly.
Should Plaintiff discover additional facts during the disclosure and discovery phase of
litigation to show that Centurion, in fact, had policies, customs, or practices that reflect a standard
of subjective deliberate indifference, Plaintiff may file a motion to amend the Complaint, together
with a proposed amended complaint.
Any policy-based amended claim must clearly set forth causation. An official’s wrongful
act or omission does not mean that the entity has a policy requiring that act or omission. The
official’s action might be consistent with such a policy, but mere consistency is not enough to state
a claim under § 1983. Twombly, 550 U.S. at 557 (holding that 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 ‘entitle[ment] to relief’”).
B. Claims against Non-Treating Defendants
Plaintiff asserts that he sent a Resident Concern Form to Warden Ross, who replied that he
had forwarded Plaintiff’s concerns to the Centurion Health Services Administrator (HSA). (Dkt. 3
at 9). This response shows that Ross took an action to address Plaintiff’s medical issue and does
not show deliberate indifference.1

1

Plaintiff has not provided a copy of this concern form as an exhibit, although he provides
his other concern forms and grievances.
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Importantly, Plaintiff does not allege that, after Warden Ross’s message to the HAS,
Plaintiff reported to Ross that the HSA did not act on the forwarded concern and that the urgent
medical issue still existed. Even if Plaintiff had reported this to Ross in a new concern form or
grievance, he must show that Ross himself read and ignored it. Many concern forms sent to highlevel officials are often reviewed and answered by lower level officials. Plaintiff may request
amendment before the amendment deadline (set forth below) if he discovers facts that would
support individual liability.
Similarly, Plaintiff’s claims against IDOC director Josh Tewalt are based on the allegation
that “Tewalt has received what Plaintiff can only guess to be Hundreds of Prisoner’s and their
Family’s and Friend’s Complaints about the Willful Delays and Denials of Adequate Medical
Treatments for the prisoners under his custody and care . . . . ” (Dkt. 3 at 7). These allegations are
speculative and not based in fact. Plaintiff may later amend if he discovers facts that would support
individual liability.
C. Non-Cognizable Claims and Requests for Relief
Plaintiff also brings several claims that are not cognizable in a civil action, have no factual
basis, or are improper requests for relief. He may not proceed on any of the following: (1) that a
federal criminal cause of action under 18 U.S.C. §§ 4, 241, or 242 can be pursued in a civil rights
action; (2) that a “formal criminal investigation” should be initiated on the facts alleged in the
Complaint (Dkt. 3 at 2, 8); (3) that the Court can “cancel” the contract between Centurion and
IDOC (id. at 8); or (4) that the Court can order the IDOC to terminate the individual defendants’
employment and cause them to forfeit their pensions (see id. at 15). These claims and requests for
relief will be dismissed.

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4. Motion for Preliminary Injunctive Relief
Issuance of a temporary restraining order or preliminary injunction is appropriate where a
plaintiff can show (1) there are “serious questions going to the merits,” (2) there is a “a balance of
hardships that tips sharply towards the plaintiff,” (3) “there is a likelihood of irreparable injury,”
and (4) “the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131, 1135 (9th Cir. 2011). Preliminary injunctive relief is appropriate only if “the facts and
law clearly favor the moving party.” Stanley v. Univ. of S. California, 13 F.3d 1313, 1320 (9th Cir.
1994).
Plaintiff requests that the Court order Defendants to accelerate treatment of his left eye. He
asserts, without adequate foundation, that, without urgent treatment, he will go blind. Because this
is a serious medical issue and Plaintiff is a pro se prisoner, the Court will liberally construe these
allegations to state an urgent claim and require Defendants to respond to the request for preliminary
injunctive relief before filing an answer to the Complaint.
Plaintiff has attached many copies of Resident Concern Forms to his motion, showing that
he has made many requests for medical care. Most of the copies are too light to read. Many of the
forms appear unrelated to the request for preliminary injunctive relief—which is confined to the
eye issue. Requests about miscellaneous sinus, hip, and other pain issues, only some of which are
very briefly and vaguely set forth in the Complaint, do not relate to the subject matter of the motion
for preliminary injunctive relief.
5. Conclusion
Plaintiff may proceed on Eighth Amendment medical deliberate indifference claims
against Stoner, Brewer, and Wilkes in their individual capacities for damages and in their official
capacities for injunctive relief. He may not proceed on any other claims against any other

INITIAL REVIEW ORDER BY SCREENING JUDGE - 8

defendants at this time. He will not be permitted to proceed in forma pauperis at this time but rather
will be required to pay the filing fee.
This Order does not guarantee that any of Plaintiff’s claims will be successful; it merely
finds that one or more is colorable, meaning that the claims will not be summarily dismissed at
this stage. This Order is not intended to be a final or a comprehensive analysis of Plaintiff’s claims,
but it is only a determination that one or more of Plaintiff’s claims is plausible and should proceed
to the next stage of litigation.
ORDER
IT IS ORDERED:
1.

Plaintiff may proceed on his Eighth Amendment claims against Mary Stoner, Gen
Brewer, and Dr. Kate Wilks. All other claims against all other Defendants are
DISMISSED, and all other Defendants 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 amend the complaint to assert such claims.2

2.

Plaintiff’s Application for in Forma Pauperis Status (Dkt. 1) is DENIED. Plaintiff
states, under penalty of perjury, that he has not received any money from family
members in the past six months. (Dkt. 1 at 1-2). Contrarily, Plaintiff’s prison trust
account statement shows that he regularly receives money from Debra Wilkinson
and Susan Wilkinson. At the time he requested his account statement, he had
$769.77 in his prison trust account, from which he should be able to pay the filing

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.”).
2

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fee, because all of his necessities of life are provided to him in prison. (See Dkt. 2).
Within 30 days after entry of this Order, Plaintiff must pay the filing fee of $405 to
the Clerk of Court, or his case will be dismissed without prejudice.
3.

Because Plaintiff is not proceeding in forma pauperis, he is ultimately responsible
to effect service upon Defendants if they do not return the waiver. The Clerk of
Court will first attempt the waiver process, which is designed to save the costs of
service. If Defendants do not waive service, however, then Plaintiff will be
instructed on how to notify each Defendant of the responsibility to waive service
or be subject to reimbursing Plaintiff for any formal service fees.

4.

Therefore, Defendants are permitted 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 after entry of this
Order. 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);
however, the response to the Motion for Preliminary Injunctive Relief shall be
due within 45 days after entry of this Order. Accordingly, the Clerk of Court
will forward a copy of the Complaint (Dkt. 3), a copy of this Order, a copy of the
Motion for Preliminary Injunctive Relief (Dkt. 6), and a Waiver of Service of
Summons to the following counsel, and the Clerk of Court shall particularly note
in the email to counsel that, if the waiver is executed and returned, the
response to the Motion for Preliminary Injunctive Relief is due before the
answer, within 45 day after entry of this Order:

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Aynsley Harrow Mull, Associate General Counsel for
Centurion, at Ms. Mull’s email address on file with the Court,
on behalf of Defendants Mary Stoner, Gen Brewer, and Dr. Kate
Wilks.
5. 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.
6. Any amended pleadings must be submitted, along with a motion to
amend, within 150 days after entry of this Order.
7. Dispositive motions must be filed no later than 300 days after entry of
this Order.
8. 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 of service, date of service, address of service, and
name of person upon whom service was made.
9. 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

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