UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
ROY ELIZE FERGUSON, III, Case No. 4:20-cv-00003-DCN Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE
IDAHO DEPARTMENT OF CORRECTION; DR. MIGLIORI; and CORIZON HEALTH,
Defendants.
The Clerk of Court conditionally filed Plaintiff Roy Elize Ferguson’s Complaint as a result of Plaintiff’s in forma pauperis request. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. § 1915. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff intends to proceed. 1. Screening Requirement The Court must 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. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 2. Pleading Standard 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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” 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). And a court is not required to comb through a plaintiff’s exhibits or other filings to determine if the complaint states a plausible claim. 3. Factual Allegations In January 2018, when Plaintiff was a prisoner in the custody of the Idaho Department of Correction (“IDOC”), he was attacked by two other inmates. Compl., Dkt.
2, at 4. Plaintiff sustained neck, arm, and hand injuries. Medical personnel treated Plaintiff conservatively and later “admitted” that this conservative treatment—whatever that treatment was—did not work. Id. Plaintiff now suffers from severe pain and permanent nerve damage. Plaintiff sues the IDOC, Dr. Migliori, and Corizon—the private entity providing Idaho prisoners with medical treatment under contract with the IDOC. Plaintiff asserts
medical treatment claims under the Eighth Amendment and discrimination claims under the Equal Protection Clause of the Fourteenth Amendment.1 4. Discussion Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Complaint does not include any specific allegations about Plaintiff’s medical treatment at
all. The allegations in the Complaint are simply too vague to raise a plausible inference that any Defendant is liable under § 1983. The Court will grant Plaintiff 28 days to amend the Complaint. Any amended complaint should take into consideration the following. A. Standards of Law for Section 1983 Claims Plaintiff brings 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). To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Negligence
1 Plaintiff also cites the Sixth Amendment and the Equal Rights Amendment. Compl. at 3. The Sixth Amendment—which protects a criminal defendant’s right to a speedy and public trial by an impartial jury, the right to confrontation and compulsory process, and the right to the assistance of counsel—is not implicated by the allegations in the Complaint. The Equal Rights Amendment was not ratified and is not part of the United States Constitution. is not actionable under § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a “failure to measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986).
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. 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”; (2) “knowingly refus[ed] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury”; (3) failed to act or improperly acted in the training, supervision, or control of his subordinates”; (4) “acquiesc[ed] in the constitutional
deprivation”; or (5) engag[ed] in “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1205-09. To bring a § 1983 claim against a municipality (local governmental entity) or a private entity performing a government function—such as Corizon—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 a municipality or private entity performing a state function are the following: (1) the plaintiff was deprived of a constitutional right; (2) the municipality or entity had a policy or custom; (3) the policy or custom 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 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 the plaintiff’s injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679. i. Eighth Amendment Claims The Eighth Amendment to the United States Constitution protects prisoners against cruel and unusual punishment. To state a claim under the Eighth Amendment, prisoners
must plausibly allege that they are (or were) “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 a plaintiff to satisfy “both an objective standard—that the deprivation was serious
enough to constitute cruel and unusual punishment—and a subjective standard—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 and mental health 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 ....
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, 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 [defendant] should have been aware of the risk, but was not, then the
[defendant] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188. 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.
Differences in judgment as to appropriate medical diagnosis and treatment between an inmate and prison 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, 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 plausibly allege that medical providers chose one course of 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).
ii. Equal Protection Claims “[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000) (internal citation and quotation marks omitted). Under the Equal Protection Clause, “all persons similarly circumstanced shall be treated alike” by governmental entities. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). However, “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Tigner v. Texas, 310 U.S. 141, 147 (1940).
Even where similarly situated persons are treated differently by the state, “state action is presumed constitutional and ‘will not be set aside if any set of facts reasonably may be conceived to justify it.’” More v. Farrier, 984 F.2d 269, 271 (9th Cir. 1993) (quoting McGowan v. Maryland, 366 U.S. 420, 426 (1961)). Absent evidence of invidious discrimination, the federal courts should defer to the judgment of prison officials. See id.
at 277; Youngbear v. Thalacker, 174 F. Supp. 2d 902, 916 (D. Iowa 2001) (“There can be no ‘negligent’ violations of an individual’s right to equal protection.... There is no evidence from which the court may infer that the defendants’ asserted reasons for delaying the construction of a sweat lodge at the [prison] were a pretext for discrimination.”). Equal protection claims alleging disparate treatment or classifications generally are subject to a heightened standard of scrutiny if they involve a “suspect” or “quasi-suspect” class, such as race, national origin, or sex, or when they involve a burden on the exercise
of fundamental personal rights protected by the Constitution. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). Inmates are not a protected class under the Equal Protection Clause. Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998). Accordingly, claims of dissimilar treatment of inmates are subject to rational basis review. See Heller v. Doe, 509 U.S. 312, 319-20 (1993). In a rational basis analysis, the
relevant inquiry is whether Defendants’ action is “patently arbitrary and bears no rational relationship to a legitimate governmental interest.” Vermouth v. Corrothers, 827 F.2d 599, 602 (9th Cir. 1987) (quotation omitted). That is, a prisoner can prevail only if he is similarly situated with prisoners who are treated differently by the state, and if the state has no rational basis for the different treatment. Stated another way, prison officials need show
only a rational basis for dissimilar treatment in order to defeat the merits of a prisoner’s equal protection claim. Id. In addition to the deference inherent in a rational basis inquiry, another layer of deference to prison officials is required under Turner v. Safley, 482 U.S. 78 (1987). In that case, the Supreme Court held that a prison regulation or a prison official’s action is
constitutional so long as it is reasonably related to a legitimate penological purpose. Id. at 89-91; see also Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (“In the prison context, ... even fundamental rights such as the right to equal protection are judged by a standard of reasonableness—specifically, whether the actions of prison officials are reasonably related to legitimate penological interests.” (quotation marks omitted)). B. Eleventh Amendment Immunity Plaintiff’s claims against the IDOC are barred by the Eleventh Amendment, which
prohibits a federal court from entertaining a suit brought by a citizen against a state or state entity absent a waiver of state sovereign immunity. Hans v. Louisiana, 134 U.S. 1, 16-18 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not constitute such a waiver. Quern v. Jordan, 440 U.S. 332, 342–44 (1979). Nor has Idaho itself waived its sovereign immunity for constitutional claims. Esquibel v.
Idaho, No. 1:11-cv-00606-BLW, 2012 WL 1410105, at *6 (D. Idaho Apr. 23, 2012) (unpublished). Finally, only a “person” may be sued pursuant to 42 U.S.C. § 1983, and a state is not considered a “person” under that statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, Plaintiff should omit the IDOC from any amended complaint.
C. Claim Preclusion Plaintiff’s federal claims in this action also appear subject to dismissal based on the doctrine of claim preclusion. Claim preclusion “treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same ‘claim’ or ‘cause of action.’” Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988) (quoting Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 535 (5th Cir. 1978)). The
doctrine “prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.” Id. (quoting Brown v. Felsen, 442 U.S. 127, 131 (1979)). For claim preclusion to preclude relitigation, the following requirements must be met: (1) the same claim, arising out of the same facts, must be involved in both suits; (2) there must be a final judgment on the merits in the prior action; and (3) the parties in
the instant action must be the same as, or in privity with, the parties in the prior action in question. Black Dog Outfitters, Inc. v. Idaho Outfitters and Guides Licensing Bd., 873 F. Supp. 2d 1290, 1299–1300 (D. Idaho 2012). “The purposes of these judicially created rules are to conserve judicial resources, protect litigants from multiple lawsuits, and foster certainty and reliance in legal relations.” Id. (quoting Coeur D’Alene Tribe v. Asarco Inc.,
280 F. Supp. 2d 1094, 1118 (D. Idaho 2003)). Plaintiff filed a previous civil rights lawsuit in this Court that raised what appear to be the very same claims he asserts in the instant case. See Ferguson v. Migleorie, Case No. 1:18-cv-00569-BLW, Dkt 3 (complaint), 15 (first amended complaint). The defendants in that lawsuit were Dr. Migliori and Corizon—who are also defendants in this case and who
are the only named defendants not immune from suit under the Eleventh Amendment. On September 24, 2019, Plaintiff’s § 1983 claims in that case were dismissed, with prejudice, for failure to state a claim upon which relief could be granted.2 Id. at Dkt. 16, 17. A dismissal with prejudice for failure to state a claim “operates as a final judgment on the merits.” Wester v. Maricopa Cty. Superior Court, 883 F.2d 1025 (9th Cir. 1989)
(unpublished) (citing Restatement Restatement (Second) of Judgments § 19, comment d
2 The Court declined to exercise supplemental jurisdiction over Plaintiff’s state law claims, which were dismissed without prejudice to Plaintiff’s reasserting them in state court. Ferguson, Case No. 1:18-cv- 00569-BLW, Dkt 16 at 4. (1982)). If Plaintiff files an amended complaint, he should set forth any reason why he believes his § 1983 claims against Defendants Migliori and Corizon are not barred by the
doctrine of claim preclusion. D. State Law Claims In addition to § 1983 claims, Plaintiff purports to assert state law claims, though he does not identify any such claims. See Compl. at 4 (“Violated numerous Rights, Judicial, state, constitutional ….”). Just as Plaintiff’s allegations are too vague to state a plausible
federal claim, so too do they fail to state a plausible claim under Idaho law. 5. Standards for Amended Complaint If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection
between each defendant’s actions and the claimed deprivation. Taylor, 880 F.2d at 1045; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss” or to survive screening under 28 U.S.C. §§ 1915 and 1915A. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at 678 (“Nor
does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” (internal quotation marks and alteration omitted)). Rather, for each cause of action against each defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of Plaintiff’s constitutional rights; (2) facts showing the defendant is a state actor (such as
state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the defendant allegedly took place; (4) the specific conduct or action Plaintiff alleges is unconstitutional; (5) the particular federal constitutional provision (or state law provision) Plaintiff alleges has been violated; (6) facts alleging that the elements of the violation are met; (7) the injury or damages Plaintiff personally
suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant. In addition, Plaintiff must include facts showing that Plaintiff can meet the Monell requirements if Plaintiff continues to name Corizon as a defendant (explained in detail above). Further, any amended complaint must contain all of Plaintiff’s allegations in a single
pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. 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). Plaintiff must set forth each different factual allegation in a separate numbered
paragraph. The amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as the “First Amended Complaint.” Plaintiff’s name and address should be clearly printed at the top left corner of the first page of each document filed with the Court. If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to Review
the Amended Complaint.” If Plaintiff does not amend within 28 days, or if the amendment does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”).
ORDER IT IS ORDERED: 1. Plaintiff has 28 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended complaint) a Motion to Review the Amended Complaint. If
Plaintiff does not amend within 28 days, this case may be dismissed without further notice. 2. Plaintiff’s request for appointment of counsel (contained in the Complaint) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint.
ae DATED: March 2, 2020 ch RI ee Me a fo -——— KZ David C. Nye 4 Chief U.S. District Court Judge
INITIAL REVIEW ORDER BY SCREENING JUDGE - 16