McClanahan v. Salmonsen

Filing 63

ORDER denying 48 Motion for Order to Show Cause; granting in part and denying in part 52 Motion to Dismiss for Failure to State a Claim; denying 54 Motion for Entry of Default; denying 55 Motion for Default Judgment; denying 59 Motion to Compel; denying 60 Motion for Preliminary Injunction; denying 56 Motion for Special Counsel. Defendants Reich, Cobban, and Godfrey are DISMISSED from the action. Defendant Warden Salmonsen must answer the medical care claim in McClanahans second amended complaint within 21 days of the date of this Order. Signed by Judge Brian Morris on 7/7/2023. Transmitted electronically to prison for delivery to inmate. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
SHANE MCCLANAHAN,

CV 22–20–H–BMM

Plaintiff,
vs.

ORDER

JIM SALMONSEN, BILLIE REICH,
KRISTY COBBAN, DJ GODFREY,
Defendants.
Plaintiff Shane McClanahan (“McClanahan”) is an inmate at Montana State
Prison (“MSP”) who has been diagnosed with melanoma. The crux of his claim is
that following his transfer back to MSP in December of 2018, Defendants have
denied him treatment by a cancer specialist and have generally delayed and
interfered with his treatment. (See, e.g., Doc. 44 at 19–23, 30.) McClanahan has
pled a plausible Eighth Amendment denial of treatment claim under 42 U.S.C. §
1983 against Warden Jim Salmonsen (“Warden Salmonsen”). The Court will deny
the pending motion to dismiss (Doc. 52), as to Warden Salmonsen, but will grant the
motion as to the other three Defendants. The additional outstanding motions will be
addressed below.

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I.

MOTION TO DISMISS
LEGAL STANDARD
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint

must 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) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. Dismissal
proves appropriate “where there is no cognizable legal theory or an absence of
sufficient facts alleged to support a cognizable legal theory.” L.A. Lakers, Inc. v.
Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017) (internal quotation marks omitted).
At this stage, all factual allegations in the complaint are assumed to be true and the
pleadings are construed in the light most favorable to the plaintiff. Ariix, LLC v.
NutriSearch Corp., 985 F.3d 1107, 1114 (9th Cir. 2021).
BACKGROUND
i.

Timeline of Events
In 2016, McClanahan was transferred from MSP to Utah under the Western

Interstate Corrections Compact. (Doc. 44 at 6.) Medical officials discovered a
melanoma on McClanahan’s back upon his initial intake at Utah in December of
2016. He received treatment in Salt Lake City at the Huntsman Cancer Institute.

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This treatment apparently included surgical intervention to remove the cancerous
tissue. (See Doc. 46-1 at 6.) While incarcerated in Utah, McClanahan filed a petition
for extraordinary relief in Utah’s Third Judicial District Court, Salt Lake County.
See McClanahan v. Utah State Prison, Cause No. 180903127. It appears that
McClanahan is referencing this lawsuit throughout several pages of his second
amended complaint. (See Doc. 44 at 6–10, 12–13.)
McClanahan was transferred back to MSP on December 21, 2018. He believes
that this transfer was retaliatory in nature, at least partially, in response to the lawsuit
he had filed in Utah. Following his transfer back to MSP, McClanahan’s cancer
treatment at the Huntsman Cancer Institute stopped. (Doc. 44 at 11.) McClanahan
asserts that his cancer has spread without any care or intervention from MSP officials
since December of 2018. (Id. at 16–17.) McClanahan alleges the Defendants have
denied him treatment by a cancer specialist for his serious medical needs while at
MSP. (Id. at 18.) He further claims that Defendants have interfered with the doctor’s
order to transport him for PET scans and have interfered with the quality of the PET
scans by directing transportation officers not to remove his chain restraints during
the scan. (Id.; see also Doc. 49 at 3–5.) McClanahan also seems to assert that his
medical treatment records have been falsified, further evidencing neglect. (Doc. 441 at 8–9.)
McClanahan states that in January of 2022 he met with Warden Salmonsen

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and advised him of his claims. McClanahan alleges that Warden Salmonsen
promised McClanahan a transfer to Donovan State Prison in California due to his
special needs and hardships. (Doc. 44 at 13–14.) McClanahan asserts that
Defendants have been denying him access to specialists and delaying his cancer
treatment. McClanahan also acknowledges, however, that Dr. Rees has been
performing regular physicals of him along with full image CT scans. (See Doc. 461 at 6, 8.)
ii.

This Litigation

McClanahan filed this action on February 11, 2022, alleging civil rights
violations under 42 U.S.C. § 1983. McClanahan filed an amended complaint on
March 3, 2022 (Doc. 4), and a supplement on March 18, 2022. (Doc. 11.)
Following some initial confusion regarding service, Warden Salmonsen filed
a timely motion to dismiss. (Doc. 26.) Warden Salmonsen pointed out that
McClanahan was not entitled to the form of preliminary injunctive relief sought, and
argued that if the Court was not inclined to dismiss the matter, McClanahan should
be required to file an amended complaint seeking appropriate relief. (Doc. 27.) The
Court agreed with Warden Salmonsen’s position regarding injunctive relief. (Doc.
40 at 3.) The Court instructed McClanahan to file a second amended complaint
setting forth each claim upon which he intended to proceed and naming each
defendant he intended sue. (Id. at 4.)

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McClanahan filed his second amended complaint, accompanied by 27 pages
of exhibits, on December 13, 2022. (Doc. 44; Doc. 44-1.) The Court directed service
upon the Defendants. (Doc. 45.) Defendants responded by filing a motion to dismiss
for failure to state a claim on March 6, 2023. (Doc. 52.) Before Defendant’s filing,
McClanahan filed a motion to show cause as to why he should not receive a
preliminary injunction and restraining order. (Doc 48.) McClanahan also has filed
two motions for default judgment (Doc. 55; Doc. 56), a motion to compel (Doc. 59),
and a motion for injunction (Doc. 60).

ANALYSIS
“[T]o maintain an Eighth Amendment claim based upon prison medical
treatment, an incarcerated person must show ‘deliberate indifference to serious
medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Accordingly, the test for deliberate
indifference has two parts. Id. “First, the plaintiff must show a ‘serious medical
need’ by demonstrating that failure to treat the prisoner’s condition could result in
further significant injury or the unnecessary and wanton infliction of plain.” Id.
(internal quotation marks omitted). “Second, the plaintiff must show the defendant’s
response to the need was deliberately indifferent.” Id.
The Court presumes for purposes of this Order that cancer constitutes the type
of “serious medical need” that would trigger Eighth Amendment scrutiny in the

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corrections context. The Court will focus its analysis on the question of deliberate
indifference. Indifference may manifest “when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way in
which prison physicians provide medical care.” Jett, 439 F.3d at 1096 (internal
quotation marks omitted). When an incarcerated person alleges a delay in receiving
medical treatment, the delay must have led to further harm. See McGuckin v. Smith,
974 F.2d 1050, 1060 (9th Cir. 1992). In this regard, “[a] prisoner need not show his
harm was substantial; however, such would provide additional support for the
inmate’s claim that the defendant was deliberately indifferent to his needs.” Jett, 439
F.3d at 1096.
Defendants argue that McClanahan entirely fails to state a claim against
Defendants Reich, Cobban, and Godfrey, and that he fails to state a claim for
supervisory liability against Warden Salmonsen. (Doc. 53 at 3-5.) The Court agrees
with the Defendants’ position as it relates to Reich, Coban, and Godfrey, but finds,
at this initial pleading stage, however, that Defendants’ argument relative to Warden
Salmonsen lacks merit.
i.

Defendants Reich, Cobban, and Godfrey
A defendant is liable under 42 U.S.C. § 1983 “only upon a showing of

personal participation by the defendant.” Taylor v. List, 880 F. 2d 1040, 1045 (9th.
Cir. 1989). McClanahan attempts to bring his Eighth Amendment claim against

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Defendants Reich, Cobban, and Godfrey, but aside from the “Defendants” section
of his amended complaint (Doc. 44 at 2-3), he does not include any allegations
specific to any of these defendants. McClanahan argues instead that these three
individuals are some of the “bad actors” at MSP, under Warden Salmonsen’s control,
and that his reference to such bad actors in his second amended complaint proves
sufficient to defeat the motion to dismiss. (See Doc. 56 at 2–3.) The Court disagrees.
McClanahan has not described what each of these individuals did or failed to
do, in connection with his medical treatment, and how the corresponding action or
inaction contributed to causing a violation of his rights. See, e.g., Lacey v. Maricopa
Cnty., 693 F. 3d 890, 915–16 (9th Cir. 2012) (en banc). The second amended
complaint fails to support an inference that any of these three defendants were
personally involved in any failure to provide McClanahan medical treatment for
cancer, and, accordingly, fails to state a colorable claim against these defendants.
ii.

Warden Salmonsen
The Court acknowledges that some uncertainty regarding the status of

McClanahan’s present cancer diagnosis and prognosis still remains. For example,
while McClanahan presents grave claims about the severity of his disease, in other
pleadings he has suggested that his cancer is in remission. (See, e.g., Doc. 36-1 at 4.)
In his second amended complaint and supporting documents, McClanahan
demonstrates that he has been provided at least some level of ongoing care and

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monitoring at MSP.
Defendants argue that McClanahan’s claim is insufficient because he has
failed to establish a causal connection between Warden Salmonsen’s conduct and
the violation inflicted by a subordinate. (Doc. 53 at 4–5) (citing Larez v. City of Los
Angeles, 946 F. 2d 630, 645–46 (9th Cir. 1991)). Defendants further argue that
McClanahan fails to prove that Warden Salmonsen acted with an intent to deprive
him of his rights. (Id. at 5) (additional citation omitted).
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Consistently,
“[s]upervisory liability is imposed against a supervisory official in his individual
capacity for his own culpable action or inaction in the training, supervision, or
control of his subordinates, for his acquiescence in the constitutional deprivations of
which the complaint is made, or for conduct that showed a reckless or callous
indifference to the rights of others.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.
2009). “The requisite causal connection may be established when an official sets in
motion a series of acts by others which the actor knows or reasonably should know
would cause others to inflict constitutional harms.” Id. (internal quotation marks
omitted).
Based on the foregoing, a § 1983 claim against a supervisor can proceed so

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long as the supervisor took actions that were causally connected to the alleged harm.
Additionally, because this is the pleading stage, not the summary judgment stage,
McClanahan need only plead supervisory liability, not prove it.
Warden Salmonsen was not directly involved in providing medical care to
McClanahan. McClanahan alleges, however, that Warden Salmonsen caused his
injury by failing to train and supervise the “bad actors” on his staff, failing to
intervene once he was made aware of McClanahan’s claims, and essentially turning
a blind eye to ongoing issues with McClanahan obtaining medical treatment.
Defendants argue that McClanahan’s general allegations fail to establish a
basis for deliberate indifference. In the second amended complaint McClanahan
alleges that Salmonsen visited with him and that McClanahan advised him of his
ongoing issues. In response Salmonsen apparently advised McClanahan that some
action would be taken on his behalf, which McClanahan took to mean might include
a transfer to another detention facility. (Doc. 44 at 13–14, 16.) The extent and basis
of this knowledge may be disputed. Taking these allegations as true, as the Court
must, McClanahan has provided a plausible factual basis upon which supervisory
liability could be established for his Eighth Amendment delay of treatment claim.
See Corales, 567 F.3d at 570.
iii.

Conclusion
Based on the foregoing, McClanahan adequately has pled an Eighth

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Amendment for a delay/denial in medical treatment claim against Warden
Salmonsen, but not against the other three defendants. Defendants’ motion to
dismiss will be granted, in part, and denied as it pertains to Warden Salmonsen.
Additionally, Warden Salmonsen will be required to respond only to the Eighth
Amendment denial of medical care claim. McClanahan’s second amended complaint
fails to state any additional cognizable constitutional violations.
II.

Motion for Application of Default/Motion for Default Judgment
McClanahan has filed two motions seeking judgment in his favor based upon

Defendants’ purported failure to timely respond to his second amended complaint.
(Doc. 55; Doc. 56.) McClanahan’s motions lack merit.
Defendants filed their motion to dismiss on March 6, 2023. (Doc. 52.) A
motion to dismiss represents an appropriate response to a complaint. See Fed. R.
Civ. P. 12(b). Moreover, McClanahan’s motions have been filed in violation of the
Court’s service order, which instructed him to wait 70 days until filing a motion for
default. (See Doc. 45 at 2.) McClanahan’s motions for application of default and
default judgment are denied.
III.

Motion to Compel

McClanahan next seeks an order from this Court directing MSP infirmary to
provide, “medical records, files, and electronic medical records, stored information.”
(Doc. 59 at 1.) It appears that McClanahan seeks a copy of all his medical files from

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2015 to the present date, which he asserts MSP medical has been refusing to provide.
(Id.) Defendants object, generally asserting that the time is not yet ripe for discovery
to begin, and that McClanahan failed to confer with defense counsel prior to filing
his motion. (Doc. 61 at 1–2.) Defendants state that because a scheduling order has
not yet issued, McClanahan is not entitled to initiate discovery. (Id. at 2.)
Defendants’ position is well-taken. At this juncture, McClanahan’s motion is
not only procedurally deficient, but it also is premature. The motion to compel will
be denied.
IV.

Motion to Show Cause

McClanahan seeks an order from the Court directing Defendants to show
cause as to why a preliminary injunction and restraining order should not be entered
transferring him from MSP to Richard J. Donovan Correctional Facility in San
Diego, California, as a “special needs inmate with [a] hardship.” (Doc. 48 at 2–3.)
McClanahan indicates he fears for his life at MSP, presumably based upon the denial
of medical care. (See Doc. 49 at 3–5) (describing recent negative experience with
PET scan). McClanahan names the Director of MSP and the Montana Department
of Corrections (“MDOC”), Brian Gootkin (“Gootkin”), because he possesses the
authority to implement such a transfer under Fed. Rule Civ. P. 65(a). (Doc. 48 at 1–
2.)
The Court first notes Brian Gootkin and/or the MDOC is not named as a

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defendant in McClanahan’s second amended complaint. Federal courts may issue
injunctions only when they have personal jurisdiction over the parties; they may not
determine the rights of persons not before the court. “A federal court may only issue
an injunction if it has personal jurisdiction over the parties and subject matter
jurisdiction over the claim; it may not attempt to determine the rights of persons not
before the court. Under Fed. R. Civ. P. 65(d), an injunction binds only “the parties
to the action, their officers, agents, servants, employees, and attorneys, and . . . those
persons in active concert or participation with them who receive actual notice of the
order.” Zepeda v. U.S. I.N.S., 753 F. 2d 719, 727 (9th Cir. 1983). “[T]he district court
must, therefore, tailor the injunction to affect only those persons over which it has
power.” Id.
This Court does not have jurisdiction in this action over the person, Gootkin,
or entity, the MDOC, with the ability to effectuate McClanahan’s transfer from MSP
to another facility. McClanahan’s action against certain prison officials does not
grant the Court jurisdiction over the MDOC as an entity, or to other department
officials generally.
Even if this Court possessed the requisite jurisdiction over the parties to be
enjoined and subject matter at issue in the motion, the motion still would be denied.
Courts consistently find that routine housing decisions do not trigger federal
constitutional protections. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983) (“Just

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as an inmate has no justifiable expectation that he will be incarcerated in any
particular prison within a State, he has no justifiable expectation that he will be
incarcerated in any particular State.”); Rizzo v. Dawson, 778 F. 2d 527, 530 (9th Cir.
1985) (“An inmate’s liberty interests are sufficiently extinguished by his conviction
so that the state may change his place of confinement even though the degree of
confinement may be different and prison life may be more disagreeable in one
institution than another.”). The requested relief would still be denied based upon the
facts of this case even had the second amended complaint named Gootkin as a
defendant. It is not the role of this Court to intervene in standard state prison housing
decisions. The motion to show cause will be denied.
V.

Motion for Preliminary Injunction
McClanahan alleges that he has been stripped of all his legal resources––

including pens and a typewriter––by Defendants in an effort to block his access to
the courts. (See Doc. 60.) He believes the are retaliating against him for the present
lawsuit. This alleged retaliation apparently included taking legal works out of his
possession and strip searching him without cause. (Id. at 1–2.) He asserts that
Warden Salmonsen showed up on camera to “mock and gloat” at him. (Id. at 2.)
McClanahan asks the Court to order that all of his legal resources be returned and
privileges be restored. (Id. at 1.) He also he references his “previous complaints and
requests for relief.” (Id. at 3.) The Court presumes that McClanahan is referring to

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his request for a transfer outlined above. Defendants oppose McClanahan’s motion
and generally argue that he has failed to meet the relevant legal standards. (See Doc.
62.)
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (internal citations
omitted). It serves not as a preliminary adjudication on the merits, but as a tool to
preserve the status quo and prevent irreparable loss of rights before judgment. Textile
Unlimited, Inc. v. A. BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001). In
reviewing a motion for preliminary injunction, “courts must balance the competing
claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Winter, 555 U.S. at 24 (internal citations and
quotation marks omitted). “A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20
(citations omitted).
Winter does not expressly prohibit use of a “sliding scale approach to
preliminary injunctions” whereby “the elements of the preliminary injunction test
are balanced, so that a stronger showing of one element may offset a weaker showing
of another.” Alliance of the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

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2011). The Ninth Circuit recognizes one such “approach under which a preliminary
injunction could issue where the likelihood of success is such that serious questions
going to the merits were raised and the balance of hardships tips sharply in plaintiff's
favor.” Id. (internal citations and quotation marks omitted).
A preliminary injunction “should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072
(9th Cir. 2012) (internal citations omitted, emphasis in original). A request for a
mandatory injunction seeking relief well beyond the status quo is disfavored and
shall not be granted unless the facts and law clearly favor the moving party. Stanley
v. Univ. of S. Cal., 13 F.3d 1313, 1319–20 (9th Cir. 1994).
A preliminary injunction serves to preserve the status quo pending a
determination on the merits. Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir.
1988). As such, heightened scrutiny applies where the movant seeks to alter rather
than maintain the status quo. Dahl v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th
Cir. 1993) (holding that mandatory, as opposed to prohibitory, injunctions are
“subject to a heightened scrutiny and should not be issued unless the facts and law
clearly favor the moving party”).
The Prison Litigation Reform Act (“PLRA”) mandates that prisoner litigants
must satisfy additional requirements when seeking preliminary injunctive relief
against prison officials:

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Preliminary injunctive relief must be narrowly drawn, extend no further
than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.
The court shall give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the
preliminary relief and shall respect the principles of comity set out in
paragraph (1)(B) in tailoring any preliminary relief.
18 U.S.C. § 3626(a)(2).
Based upon the record, extraordinary relief is not warranted. McClanahan’s
request does not relate to the merits of his deliberate indifference medical claim, but
rather is a request for the Court to enter into the day-to-day operations of the
Montana State Prison. Such relief does not comply with the applicable provisions
of the PLRA. This Court is not inclined to interfere with prison operations and/or
potential disciplinary actions. Such interference would not have the effect of
preserving the status quo, but rather would upset it, and the request fails to survive
heightened scrutiny. Additionally, McClanahan may not use these proceedings to
inject a new retaliation claim.
Moreover, as set forth above, three of the Defendants are being dismissed
from this matter. While Warden Salmonsen will be required to provide an answer to
the second amended complaint, McClanahan has not demonstrated a clear showing
that he is likely to succeed on the merits. See Winter, 555 U.S. at 20. The Court
understands that McClanahan believes he is suffering harm as a result of ongoing
actions against him. Such action is not directly connected to this case. He has failed

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to demonstrate irreparable harm in the instant proceedings. Id. McClanahan
successfully has filed documents in this matter, apparently without the assistance of
a typewriter or other legal aids, and adequately has articulated his arguments.
Finally, nothing indicates that the equities tip in McClanahan’s favor or that an
injunction is in the public interest. Id. The motion for a preliminary injunction will
be denied.
VI.

Appointment of Special Counsel

McClanahan again requests counsel to assist him with this litigation,
particularly with the discovery phase. (Doc. 56 at 14.) The request will be denied on
the same basis as previously set forth in prior orders of the Court. (See, e.g., Doc. 47
at 1–3.) McClanahan is advised that his case was added to the District of Montana’s
pro bono website page as a case in which a request for the appointment of counsel
has been made. Should an attorney contact the Court indicating their interest in
representing McClanahan, the Court will make the appointment.
ORDER
Based on the foregoing, IT IS ORDERED:
1. Defendants’ motion to dismiss (Doc. 52) is GRANTED, in part, and
DENIED, in part. Defendants Reich, Cobban, and Godfrey are DISMISSED from
the action. Defendant Warden Salmonsen must answer the medical care claim in
McClanahan’s second amended complaint within twenty-one (21) days of the date

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of this Order.
2. McClanahan’s Motion to Show Cause (Doc. 48) is DENIED.
3. McClanahan’s Motion for Application for Default and Motion for
Default Judgment (Docs. 54 & 55) are DENIED.
4. McClanahan’s Motion to Compel (Doc. 59) is DENIED.
5. McClanahan’s Motion for Injunction (Doc. 60) is DENIED.
6. McClanahan’s Request for Special Counsel (Doc. 56) is DENIED.

DATED this 7th day of July, 2023.

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