Pehringer v. Richardson

• Court: District Court, D. Idaho
• Decided: August 22, 2022
• Docket: 1:21-cv-00463
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ADAM ROSS PEHRINGER SR., Case No. 1:21-cv-00463-DCN Plaintiff, INITIAL REVIEW ORDER vs. BY SCREENING JUDGE

TIMOTHY RICHARDSON, LAURA WATSON, WALTER CAMPBELL, AND JAY CHRISTONSEN,

Defendants.

The Complaint of Plaintiff Adam Ross Pehringer Sr. 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. After reviewing the Complaint, the Court has determined that Plaintiff will be permitted to proceed. REVIEW OF COMPLAINT 1. Factual Allegations Plaintiff, an inmate at the Idaho Maximum Correctional Institution (IMSI) alleges that, upon entering the correctional system, he was subject to continual harassment, retaliation, verbal abuse, sexual abuse, and psychological abuse. He wrote many offender concern forms and grievances to notify Warden Christonsen of this abuse, but the warden did not take any action to resolve the problems. Dkt. 3, p. 2; see Dkts. 3-1 through 3-7. He asserts that the foregoing acts amount to “retaliation, felony harassment and abuse.” Id. In addition to the warden, he sues Laura Watson, a prison program manager; Timothy Richardson, a prison administrator; and Walter Campbell, the IDOC chief of psychology Some of the responses to Plaintiff’s communications indicate that he suffers from

psychosis. In addition, Plaintiff has submitted a supplement, called “My Story,” which is a diary of hundreds of pages, indicating he is consistently hearing derogatory statements and commands, but the sentences are written in passive voice, not indicating the source of the voices. See Dkt. 6-1 to 6-3. 2. Standards of Law

Under modern pleading standards, Federal Rule of Civil Procedure 8 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 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In addition, the Prison Litigation Reform Act (PLRA)1 requires the Court to screen all pro se prisoner and pauper complaints

to determine whether they have stated a claim upon which relief can be granted before such complaints are served on the defendants. 28 U.S.C. §§ 1915 & 1915A. The Court must dismiss any claims that are frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

The Court liberally construes a plaintiff’s pleadings to determine whether the case should be dismissed for lack of a cognizable legal theory or a failure to plead sufficient

1 Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq. facts to support a cognizable legal theory, under the Iqbal/Twombly standard. Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a claim under § 1983, 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). Title 42 U.S.C. § 1983 is an implementing statute that makes it possible to bring a cause of action under the Amendments of the United States Constitution. The treatment a prisoner receives in prison and the conditions under which the

prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). The Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). While conditions of confinement may be harsh and

restrictive without being a violation of the Eighth Amendment, they cross the line of acceptability when they (1) involve “the wanton and unnecessary infliction of pain,” (2) are “grossly disproportionate to the severity of the crime warranting imprisonment,” (3) result “in unquestioned and serious deprivation of basic human needs,” or (4) deny an inmate “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S.

337, 347 (1981). Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety. See Farmer v. Brennan, 511 U.S. at 832; Keenan v. Hall, 83 F.3d 1083, 1098 (9th Cir. 1996); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Where conditions of confinement are challenged, a plaintiff must make two showings. First, the plaintiff must make an “objective” showing that the deprivation was “sufficiently serious” to form the basis for an Eighth Amendment violation. Johnson, 217

F.3d at 731. Second, the plaintiff must make a “subjective” showing that the prison official acted “with a sufficiently culpable state of mind.” Id. To establish an official’s deliberate indifference, an inmate must show that (1) the officer was aware of the risk to the prisoner's health or safety, and (2) the officer deliberately disregarded that risk. Farmer v. Brennan,

511 U.S. at 837. To rebut the subjective inquiry, prison officials may present evidence that they reasonably responded to the risk. Id. at 844–45. Mere negligence is not sufficient to establish deliberate indifference; rather, the official’s conduct must have been wanton. Id. at 835. Verbal harassment, abuse, and threats, without more, are not sufficient to state a

constitutional deprivation under § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987) (allegations that a correctional counselor told plaintiff that he would transfer him to a higher custody status unit if he tried to go to the law library and that he would be sorry if he filed a class action suit were not actionable under § 1983); see Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir. 1987) (use of derogatory racial epithets does not violate Fourteenth

Amendment); see Shabazz v. Cole, 69 F.Supp.2d 177, 198-201 (D.Mass. 1999) (citing authority to explain that racial slurs and verbal threats without more do not invoke constitutional protection). However, inmates have an Eighth Amendment right to be free from “calculated harassment unrelated to prison needs.” Hudson v. Palmer, 468 U.S. 517, 530 (1984). If an inmate believes that prison officials are retaliating against him for expressions of speech or his exercise of other rights, he may have a First Amendment retaliation claim.

Elements of that claim include the following: “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, ... that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Although a “chilling effect on First

Amendment rights” is enough to state an injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of arbitrary retaliation” are insufficient to state a retaliation claim, Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985). As to proper defendants for a civil rights cause of action, in Starr v. Baca, 633 F.3d 1191 (9th Cir. 2011), the United States Court of Appeals for the Ninth Circuit clarified that

a supervisory defendant may be held liable under § 1983 if there is “a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” 652 F.3d at 1207. Allegations sufficient to show a causal connection include: (1) “setting in motion a series of acts by others”; (2) “knowingly refus[ing] 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) failing to act or improperly acting in “the training, supervision, or control of his subordinates”; (4) “acquiesc[ing] in the constitutional deprivation”; or (5) engaging in “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1207-08 (internal quotations and punctuation omitted). In addition, “[t]here is no respondeat superior liability under §1983,” meaning that a person cannot be sued in their personal capacity merely for being a supervisor. Id. 3. Discussion

Liberally construing Plaintiff’s Complaint, the Court will permit him to proceed against the named Defendants on Eighth Amendment cruel and unusual punishment and calculated harassment claims. The Complaint and exhibits show that Plaintiff notified each of the Defendants of one or more of his claims. However, Plaintiff has not stated sufficient facts to show that any state actors

retaliated against him for exercising his constitutional rights. He may not proceed on that claim at this time. If he later discovers facts supporting such a claim, he can submit a motion to amend and a proposed amended complaint outlining the facts supporting a retaliation claim. Amendment must be requested before the amendment deadline. 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.

ORDER IT IS ORDERED: 1. Plaintiff’s request for appointment of counsel (contained in the Complaint) is DENIED without prejudice to the Court reconsidering it after either mental health and prison records have been submitted to the Court, either in support of a renewed motion for appointment of counsel or in the course of documentation supporting a motion to dismiss or for summary judgment.

Currently, Plaintiff has sufficiently articulated his claims to be able to proceed pro se. 2. Plaintiff may proceed on the following claims: Eighth Amendment claims against Timothy Richardson, Laura Watson, Walter Campbell, and Jay Christonsen. The First Amendment retaliation claim is DISMISSED. 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 3. Defendants 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

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., 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). following counsel: Karin Magnelli, Deputy Attorney General for the State of Idaho, Idaho Department of Corrections, 1299 North Orchard, Ste. 110,

Boise, Idaho 83706, on behalf of Defendant 4. 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. 5. 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. 6. 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. 7. Any amended pleadings must be submitted, along with a motion to amend, within 150 days after entry of this Order. 8. Dispositive motions must be filed no later than 300 days after entry of this Order. 9. 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.

10. 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.) 11. 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. 12. 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. 13. Plaintiff must notify the Court immediately if Plaintiff's address changes. Failure to do so may be cause for dismissal of this case without further notice. 14. 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.

Ae DATED: August 22, 2022

™. alll a cs Ax’ DavidC.N “cast Chict us District Court Judge

INITIAL REVIEW ORDER BY SCREENING JUDGE - 10