Garza v. Tewalt

• Court: District Court, D. Idaho
• Decided: October 30, 2019
• Docket: 1:19-cv-00275
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ERINEO GARZA,

Plaintiff, Case No. 1: 19-cv-00275-BLW

vs. INITIAL REVIEW ORDER BY SCREENING JUDGE JOSH TEWALT, DEBBIE FIELD, DAVID McCLUSKEY, CINDY WILSON, RONA SIEGERT, AMANDA TILLEMANS, GEN BREWER, and MS. CAMMANN,

Defendants.

The Complaint of Plaintiff Erineo Garza was conditionally filed by the Clerk of Court due to his status as a prisoner and pauper. (Dkts. 3, 1.) A “conditional filing” means that 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 to determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915 & 1915A. The Court must dismiss any claims that state a frivolous or malicious claim, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). After reviewing the Complaint, the Court has determined that Plaintiff will be required to file an amended complaint if he desires to proceed. 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), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). In Iqbal, the Court made clear that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. In other words, Federal Rule of Civil Procedure 8 “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,” the complaint has not stated a claim for relief that is plausible on its face. Id. (internal quotation marks omitted). To state an Eighth Amendment claim regarding 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) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). The Supreme Court has opined that “[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. 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), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). 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, 838 (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 medical care or intentionally interfering with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A complaint alleging that a defendant acted with deliberate indifference requires factual allegations that show “both ‘(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 2. Summary of Allegations Plaintiff is an Idaho Department of Correction (IDOC) prisoner. He asserts that he submitted a Corizon “Health Services Request” seeking dental care and new dentures or

repair of his old dentures, but Dr. Cammann, the dentist, told Plaintiff he did not qualify for dentures based on Corizon’s policy. Plaintiff asserts that Defendants Gen Brewer, Amanda Tillemans, and Rona Siegert had opportunity to review Plaintiff’s claim, and ignored Plaintiff’s claims of pain and inability to eat resulting from his broken dentures.

3. Discussion of Claims Against Corizon and the Corizon-Contracted Dentist 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. Dept. of Soc. Serv. of New York, 436 U.S. 658, 694 (1978); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (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 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 the plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. See Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). All policy-based claims must meet the pleading standards clarified by Bell Atlantic Corp. v. Twomby, 550 U.S. 544 (2007), and Iqbal, supra. That

is, mere “formulaic recitation of a cause of action’s elements” is insufficient. See Twombly, 550 U.S. at 555. Liberally construing the Complaint, the Court concludes that Plaintiff has asserted a colorable claim that the Corizon-contracted dentist, Dr. Cammann, did not provide necessary dental care because of a Corizon policy. Plaintiff also alleges that the Dr. Cammann did not follow her own professional judgment, but instead followed Corizon

policy in denying Plaintiff treatment. He will be permitted to proceed against Dr. Cammann and Corizon. 4. Discussion of Claims against Supervisory Defendants Plaintiff alleges that the IDOC medical supervisor, Rona Siegert; Corizon administrative supervisor Amanda Tillemans; and Corizon nurse supervisor Gen Brewer

knew of his need for a denture repair or new dentures, but chose to deny his Grievance request to resolve his serious dental problem. Because these supervisors had personal participation in denial of the treatment, the Court will permit him to proceed against them. However, there are insufficient allegations to show that IDOC Director Josh

Tewalt or Idaho Board of Correction members Debbie Field, David McCluskey, or Cindy Wilson had any personal participation in the denial of care. Therefore, Plaintiff will not be permitted to proceed against them. 5. Conclusion Plaintiff may proceed as outlined above. 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. If, during the course of proceedings, the discovery process reveals facts showing that other defendants were involved in his treatment, he may file an

amended complaint with a motion to amend. ORDER IT IS ORDERED:

1. Plaintiff may proceed on Eighth Amendment claims against Defendants Corizon, Dr. Cammann, Gen Brewer, Amanda Tillemans, and Rona Siegert. All other claims against all other Defendants are DISMISSED, and Debbie Field, David McCluskey,

Cindy Wilson, and Josh Tewalt 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.1

1 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.”); see also Forsyth v. Humana, Inc., 2. Defendants Corizon, Dr. Cammann, Gen Brewer, Amanda Tillemans, and Rona Siegert will be allowed 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. 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). Accordingly, the Clerk of Court will forward a copy of the

Complaint (Dkt. 3), a copy of this Order, and a Waiver of Service of Summons to the following counsel: a. Mark Kubinski, Deputy Attorney General for the State of Idaho, Idaho Department of Corrections, 1299 North Orchard, Ste. 110, Boise, Idaho 83706 on behalf of Defendant Rona

Siegert. b. J. Kevin West and Dylan A. Eaton, Parsons Behle, 800 W. Main Street, Suite 1300, Boise, ID 83702, on behalf of Defendants Corizon, Dr. Cammann, Gen Brewer, and Amanda Tillemans.

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). 3. Should any entity determine that the individuals for whom counsel for the entity was served with a waiver are not, in fact, its employees

or former employees, or that its attorney will not be appearing for the entity or for particular former employees, it should file a notice within the CM/ECF system, with a copy mailed to Plaintiff, indicating which individuals for whom service will not be waived. 4. If Plaintiff receives a notice from Defendants indicating that service will not be waived for an entity or certain individuals, Plaintiff will

have an additional 90 days from the date of such notice to file a notice of physical service addresses of the remaining Defendants, or claims against them will be dismissed without prejudice without further notice. 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 the party did not provide a copy of the document to the other party to the litigation.) 10. All Court filings requesting relief or requesting that the Court make a ruling or take an action of any kind must be in the form of a

pleading or motion, with an appropriate caption designating the name of the pleading or motion, served on all parties to the litigation, pursuant to Federal Rule of Civil Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United States District Court for the District of Idaho 5.1 and 7.1. The Court will not

consider requests made in the form of letters. 11. No party may have more than three pending motions before the Court at one time, and no party may file a motion on a particular subject matter if that party has another motion on the same subject matter currently pending before the Court. Motions submitted in violation of this Order may be stricken, summarily denied, or returned to the moving party unfiled. 12. Plaintiff must notify the Court immediately if Plaintiffs address changes. Failure to do so may be cause for dismissal of this case without further notice. 13. | Pursuant to General Order 324, this action is hereby returned to the Clerk of Court for random civil case assignment to a presiding judge, on the proportionate basis previously determined by the District Judges, having given due consideration to the existing caseload.

LSE DATED: October 30, 2019 oe, yee) | — IW eAe/__B. Lynn Winmill NRICT OE Chief U.S. District Court Judge

INITIAL REVIEW ORDER BY SCREENING JUDGE - 10