Tremblay v. Mahoney et al
Order Directing Clerk to Serve defendant(s) and FINDINGS AND RECOMMENDATIONS. The Court will request Defendants Lapier, Foster, Connel, Bosses, Budd, Beason, Harris, and McNeil to waive service of summons. Waiver of Service of Summons is due within 3 0 days of this Order; if waiver is executed, an answer or other appropriate motion is due within 60 days of this Order. All claims against Defendants Thomas, Bouley, and Carroll based upon Plaintiff's placement on a behavior management plan; all claims for denial of mental health care against Defendants Buck, Praxell, and Scheafer; all claims for verbal harassment against Defendant Buck; and all claims against Defendant Mahoney should be DISMISSED WITH PREJUDICE ( Waiver of Service due by 1 2/14/2009, Notice of Appearance due by 1/12/2010, Objections to F&R due by 11/30/2009). Signed by Magistrate Keith Strong on 11/10/2009. Copy mailed to Tremblay. Documents forwarded to counsel for Mont. Dept. of Corrections as directed. (TAG, ) (Additional attachment(s) added on 11/10/2009: # 2 Notice and Waiver) (TAG, ).
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION GARY TREMBLAY, Plaintiff, vs. MIKE MAHONEY, et. al., Defendants. (Defendants see D.Mont. L.R. 12.2) Cause No. CV 09-00015-H-DWM-RKS ORDER TO SERVE COMPLAINT BY REQUESTING WAIVER OF SERVICE OF SUMMONS AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Gary Tremblay is a prisoner representing himself and proceeding in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. I. STATEMENT OF THE CASE A. Jurisdiction
Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 seeking to recover for alleged constitutional violations while incarcerated at the Montana State Prison. Plaintiff's Complaint alleges excessive use of force, unlawful conditions of confinement, denial of mental health care, and improper use of a behavior management plan. The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
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Plaintiff is a state prisoner incarcerated at the Montana State Prison in Deer Lodge, Montana. The named Defendants are: Mike Mahoney, Killean Thomas, Jill Buck, Mark Praxell, Dr. Scheafer, Greg Budd, Ben Bouley, Chris Connel, Officer Harris, Sgt. Foster, Sgt. Lapeir, Sgt. Carroll, K. Bosses, Cpt. McNeil, and Myron Beason. C. Plaintiff's Allegations 1. Placement in Cell Contaminated with Feces Plaintiff alleges he was placed in cells contaminated with feces, urine, and the blood of another inmate on three occasions. Plaintiff alleges Defendants Lapeir housed him in a cell contaminated with feces on June 19, 2008. He alleges Defendant Foster housed him in an isolation cell containing feces, blood, and the urine of another inmate who was infected with Hepatitis C on October 20, 2008. At that time Plaintiff had fresh cuts. He contends Defendants Connel, Budd, Bosses, and Beason knew the cells were contaminated and failed to have the cells cleaned or Plaintiff moved. 2. Placement in Behavior Management Plan Plaintiff alleges Killean Thomas approved a Behavior Management Plan
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on July 29, 2008 for yelling and kicking a steel door and Unit Manager Ben Bouley placed Plaintiff on an "illegal" behavior management plan on August 19, 2008. 3. Mental Health Care Plaintiff contends Jill Buck refused to help him and then dehumanized and insulted him and called him a liar in front of the whole block. He contends Mark Praxell was the R.N. who came to the cell doors for rounds and Plaintiff told him many times he did not want pills, he wanted therapy. He states Dr. Scheafer prescribed him pills and knew Plaintiff was expressing suicidal, murderous thoughts and put him on medication. Plaintiff told Dr. Scheafer he wanted therapy, not pills. 4. Excessive Use of Force On October 20, 2008, Cpt. McNeil and Officer Harris threatened and provoked Plaintiff with words and tazers. Harris allegedly put handcuffs on Plaintiff so tightly they cut his wrists. Defendants then kicked Plaintiff's feet trying to trip him down the stairs while he was handcuffed. They then threatened to spray him in the isolation cell and leave him all night. When he was instructed to come back to the door, they pulled on a rope connected to his handcuffs slamming Plaintiff into the door, purposely twisting and pulling the cuffs to inflict
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pain. Plaintiff alleges the door had blood, feces, and urine on it that was infected with Hepatitis C and he had fresh cuts from glass and handcuffs. Plaintiff alleges Mike Mahoney is the overseer of the prison. II. PRESCREENING A. Standard As Plaintiff is a prisoner proceeding in forma pauperis, his Complaint is subject to screening under 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. Section 1915A reads in pertinent part as follows: The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and][o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.").
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Sections 1915A(b) and 1915(e)(2)(B) allow for the dismissal of a complaint before it is served upon the defendants if it is "frivolous" or "fails to state a claim upon which relief may be granted." A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege the "grounds" of his "entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (quotation omitted). This requirement demands "more than labels and conclusions, [or] a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. 544. A complaint must "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)(quoting Bell, 127 S.Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957))). Rule 8(a)(2) 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, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted). The "plausibility standard" is guided by "[t]wo working principles." Iqbal, 129 S.Ct. at
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1949. First, although "a court must accept as true all of the allegations contained in a complaint," that "tenet" "is inapplicable to legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. "Second, only a complaint that states a plausible claim for relief survives" and "[d]etermining whether a complaint states a plausible claim for relief will, . . . , be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. 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." Iqbal, 129 S.Ct. at 1949 (internal quotation marks and citation omitted). The court may "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S.Ct. at 1950. Legal conclusions must be supported by factual allegations. Iqbal, 129 S.Ct. at 1950. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise
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to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. Even after Twombly, "[a] document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson, 127 S.Ct. at 2200; Cf. Fed.R.Civ.P. 8(f) ("All pleadings shall be so construed as to do substantial justice"). Although the statute requires a dismissal for the reasons stated, it does not deprive the district court of its discretion to grant or deny leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). The court can decline to grant leave to amend if "it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez, 203 F.3d. at 1127 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Leave to amend is liberally granted to pro se litigants unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (citing Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)). B. Cruel and Unusual PunishmentPlacement in Contaminated Cells The Eighth Amendment protects persons who have been convicted of crimes from punishments that are both cruel and unusual. But, "[t]he Constitution
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'does not mandate comfortable prisons.'" Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). Nor is the Eighth Amendment a mandate for federal courts to become involved in routine prison administration. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Prison officials are required to insure that inmates receive adequate food, clothing, shelter and medical care. Farmer, 511 U.S. at 832. An inmate making an Eighth Amendment claim for constitutionally inadequate conditions of confinement must allege and prove an objective component and subjective component associated with the deficiency. The objective component requires conditions sufficiently serious so as to "deprive inmates of the minimal civilized measure of life's necessities." Rhodes, 452 U.S. at 347. Alternatively, a condition must be sufficiently serious so as to constitute a substantial risk of serious harm. Helling v. McKinney, 509 U.S. 25, 33-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). The subjective component requires that a defendant prison official have a culpable state of mind, that he or she acts or fails to act with deliberate indifference to inmate health and safety. Wilson v. Seiter, 501 U.S. 294, 297, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).
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Thus, to state a claim under the Eighth Amendment, the prisoner-plaintiff must show not only that prison officials were subjectively and actually indifferent to the plight he alleges, but also that the conditions themselves were objectively sufficiently serious to acquire constitutional dimension; that is, the conditions "must result in the denial of the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347). Generally, only the most severe deprivations can support an Eighth Amendment claim. However, "[m]ore modest deprivations can also form the objective basis of a violation, but only if such deprivations are lengthy or ongoing." See Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000). "To find an Eighth Amendment violation, courts must identify specific conditions that fail to meet Eighth Amendment requirements." Hoptowit, 682 F.2d at 1247; see also id. n.3. A "totality of circumstances" test is not to be applied. Id. at 1247. Plaintiff's allegations that he was placed (at times naked and with fresh cuts on his body) in a cell contaminated with the feces, blood, and urine of another inmate are sufficient to state a claim. See Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)("Exposure to human waste, like few other conditions of confinement,
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evokes both the health concerns emphasized in Farmer and the more general standards of dignity embodied in the Eighth Amendment."); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)(Eighth Amendment violated where naked prisoner was placed in small, unclean cell without light, hygienic material, bedding, or adequate food, and where prisoner was not allowed to wash himself); McCray v. Burrell, 516 F.2d 357, 366-69 (4th Cir. 1975) (prisoner placed naked in bare, concrete, "mental observation" cell with excrement-encrusted pit toilet for 48 hours after he allegedly set fire to his cell; prisoner had no bedding, sink, washing facilities, or personal hygiene items, and he was not seen by a doctor until after he was released), cert. denied, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976); cf. Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.), amended, 75 F.3d 448 (9th Cir.), cert. denied, 516 U.S. 916, 116 S.Ct. 306, 133 L.Ed.2d 210 (1995)(placement of violent and mentally disturbed inmates in safety cell that was dirty and smelly with a pit toilet for short duration (up to one day) did not violate the Eighth Amendment). C. Mental Health Treatment Plaintiff's allegations regarding his mental health care are construed as claims under the Eighth Amendment of the United States Constitution. The
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Eighth Amendment requires that prisoners receive adequate medical care, including mental health care. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). To state an arguable section 1983 claim for failure to provide medical care, a prisoner must allege a defendant's "acts or omissions [were] sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106; Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Deliberate indifference under the Eighth Amendment involves the consideration of two elements: " the seriousness of the prisoner's medical need[;] and  the nature of the defendant's response to that need." McGuckin, 974 F.2d at 1059; see also Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir. 2003). That is, a plaintiff must demonstrate "
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