Witherall v. Bell et al

Filing 24

ORDER ADOPTING 22 FINDINGS AND RECOMMENDATIONS; denying 9 Motion for Preliminary Injunction; denying 12 Motion to Supplement; denying 19 Motion to Supplement. Claims dismissed as described Signed by Judge Brian Morris on 12/15/2017. Mailed to Witherall. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ALLEN WITHERALL,
CV-17-38-GF-BMM-JTJ
Plaintiff,
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

v.

DARRELL BELL, et al.,

Defendants.

Plaintiff Allen Witherall (“Witherall”) filed his Amended Complaint on May
16, 2017. (Doc. 7). The Complaint alleges various civil rights violations against
United States Marshals, employees and medical providers at Crossroads
Correctional Center in Shelby, Montana, and employees and medical providers at
the Yellowstone County Detention Facility in Billings, Montana. (Doc. 7.)
Witherall has also filed a Motion for Preliminary Injunction (Doc. 9), and three
Motions for Leave to file a supplement to his amended complaint. (Docs. 12; 14;
19.)

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United States Magistrate Judge John Johnston issued an Order and Findings
and Recommendations in this matter on November 6, 2017. (Doc. 22.) Judge
Johnston recommended that the Court deny Witherall’s motion for preliminary
injunction. (Docs. 9; 22 at 29.) Judge Johnston recommended that Witherall’s
Motions to Supplement (Docs. 12; 19) be denied as futile. Judge Johnston further
recommended the Court dismiss the Crossroads Correctional Center defendants
and claims. (Doc. 22 at 29.) Finally, Judge Johnston recommended that the Court
dismiss Witherall’s claim that the United States Marshals Service impeded
Witherall’s access to his attorney. (Doc. 22 at 29.)
No party filed objections to Judge Johnston’s Findings and
Recommendations. The Court has thus reviewed the Findings and
Recommendations for clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
I.

Preliminary Injunction
Preliminary injunctive relief is an “extraordinary and drastic” remedy.

Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). A party seeking
a preliminary injunction must demonstrate a likelihood of success on the merits
and a likelihood of irreparable harm. Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 24 (2008). The movant additionally must establish that the
balance of equities and public interest favor issuance of the injunction. Winter, 555
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U.S. at 20. A court should not grant a preliminary injunction unless the movant has
carried his burden “by a clear showing.” Lopez v. Brewer, 680 F.3d 1068, 1072
(9th Cir. 2012).
Witherall moves for a preliminary injunction requiring defendants to provide
him with specific medications. (Doc. 9 at 1-2.) Judge Johnston found that Witherall
failed to meet the preliminary injunction standard because he failed to state an
underlying claim regarding denial of pain medication. (Doc. 22 at 23.) As such,
Witherall is unable to demonstrate a likelihood of success on the merits. The Court
finds no error in Judge Johnston’s recommendation to deny Witherall’s motion for
preliminary injunction. (Doc. 9.)
II.

Claims Prohibited Under Minneci v. Pollard
Judge Johnston recommended that the Court deny Witherall’s Motions to

Supplement (Docs. 12; 19) as futile based on Minneci v. Pollard, 565 U.S. 118
(2012). (Doc. 22 at 30.) Judge Johnston further recommended that Witherall’s
claims against Crossroads Correctional Center Defendants Fender, Phipps, Crane,
Pearson, Mulner, Madrid, Faque, Hodges, Hanson, Rawls, Gribble, and Unknown
Crossroads Health Services Administrator be dismissed based on Minneci. (Doc.
22 at 30.)
A claimant ordinarily may bring an action for constitutional violations
committed by federal actors in federal court under Bivens v. Six Unknown Named
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Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Where the
claimant is a prisoner seeking damages from privately employed personnel at a
privately operated federal prison for conduct “that typically falls within the scope
of traditional state tort law,” however, the Supreme Court has held that Bivens does
not apply. Minneci, 565 U.S. at 131. The claimant must instead seek a remedy
under state tort law. Id.
Witherall’s motions to supplement seek to add claims against additional
employees of Crossroads Correctional Center. Crossroads is a private correctional
facility. (Doc. 22 at 4.) Witherall’s claims against the above-named defendants
include claims regarding provision of medical care, sleep deprivation, and
unhealthy meals. Allegation of additional facts could not cure these claims of their
Minneci defect. The Court finds no error in Judge Johnston’s analysis that Minneci
requires that the Court dismiss these claims. (Doc. 22 at 4-5.) The Court further
finds no error in Judge Johnston’s conclusion that Witherall’s Motions to
Supplement (Docs. 12; 12) should be denied as futile. (Doc. 22 at 23-24.)
III.

Access to Attorney Claim
Witherall claims that the United States Marshals Service violated his Sixth

and Fourteenth Amendment rights to a fair trial, effective assistance of counsel,
due process, and equal protection of the laws, by housing him more than 300 miles
away from his defense counsel. Judge Johnston recommended that the Court
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dismiss Witherall’s claim against the United States Marshalls Service as barred by
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). (Doc. 22 at 28-29.)
The Supreme Court in Heck held that plaintiff seeking damages under 42
U.S.C.A. § 1983 for unconstitutional imprisonment or other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid, must
prove that his conviction or sentence has been reversed, expunged, declared
invalid, or called into question by a writ of habeas corpus. Heck, 512 U.S. at 48687. Judge Johnston found that Witherall’s conviction has not been undermined,
and, therefore, Heck bars any claims challenging his conviction or sentence under §
1983. (Doc. 22 at 18.)
Amendment could not cure this defect in Witherall’s claims. The Court finds
no error in Judge Johnston’s analysis and recommendation to dismiss Count 1.
The Court has reviewed the remainder of Judge Johnston’s Order and
Findings and Recommendations for clear error. The Court finds no error, and
adopts the Findings and Recommendations in full.
ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 22) is ADOPTED IN FULL.
IT IS FURTHER ORDERED that:
Witherall’s Motion for Preliminary Injunction (Doc. 9) is DENIED.
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Witherall’s Motions to Supplement (Docs. 12; 19) are DENIED as futile.
Witherall’s claims against Crossroads Correctional Center Defendants
Douglas Fender, Sarah Phipps, William Crane, William Person, Unknown
Crossroads Health Services Administrator, Peter Mulner, Chief of Security Madrid,
Corrections Officer Faque, Unit Manager Hodges, Nurse Hanson, Former Health
and Services Administrator Rawls, and Nurse Gribble are DISMISSED, including
his medical care claims alleged against these Crossroads Defendants raised in
Count 2, his sleep deprivation claims alleged in Count 3, and his unhealthy meals
claims alleged against these Defendants in Count 4.
Witherall’s Count 1 claim regarding access to his attorney is DISMISSED.
DATED this 14th day of December, 2017.

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