UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
CHANCE R. QUINLIVAN, Case No. 1:21-cv-00143-BLW Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE
WARDEN THERMA CARLIN; LT. CRAIG; WARDEN RAMIREZ; and JOSH TEWALT,
Defendants.
The Clerk of Court conditionally filed Plaintiff Chance R. Quinlivan’s initial complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. Plaintiff then filed an Amended Complaint. See Dkt. 9. Plaintiff has also sent two letters to the Court asking that he be allowed to “add” to the Amended Complaint. See Dkt. 10 & 11. The Court construes these letters as requests to file supplemental complaints, and as the supplements themselves. Ordinarily, a complaint must contain all of a plaintiff’s allegations in a single document. However, in certain circumstances, and “[o]n motion and reasonable notice,” the Court may permit a supplemental pleading that sets forth facts that occurred after the filing of the initial complaint. Given Plaintiff’s pro se status, the Court will do so in this instance, but any future motions to supplement are disfavored and will not be granted absent extraordinary circumstances.1 The Court now reviews the Amended Complaint, including the supplements, to
determine whether this case should be summarily dismissed, in whole or in part, under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file a second 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) & 1915A(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
1 For future reference, Plaintiff should also be aware that the Court does not accept requests made in the form of letters. Instead, if Plaintiff seeks a ruling or an action by the Court of any kind, he must file a formal motion, with an appropriate caption, that complies with Rule 7 of the Federal Rules of Civil Procedure and with Local Civil Rule 7.1. 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). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more
than ... unadorned, the-defendant-unlawfully-harmed-me accusation[s].” 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. See General Order 342, In Re: Procedural Rules for Prisoner Civil Case Filings and for Prisoner E-Filing Program, § A(1)(b)-(c) (“No exhibits may be attached to a complaint or any type of amended complaint, except those showing exhaustion of administrative remedies[,] [and] [n]o affidavits may be attached to a complaint or any type of amended
complaint.”). 3. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction (“IDOC”), currently incarcerated at the Idaho State Correctional Institution (“ISCI”). When Plaintiff filed the initial complaint in this action, he was incarcerated at the Idaho
Correctional Institution in Orofino (“ICI-O”). “Years ago,” Plaintiff dropped out of a gang. According to Plaintiff, ICI-O is a “drop-out safe prison,” so he was not concerned for his safety when he was incarcerated there. Am. Compl., Dkt. 9, at 4.2 When Plaintiff learned that Warden Carlin was going to have him transferred to ISCI, he was afraid of being assaulted by other inmates in that prison because ISCI is “not a drop-out safe prison.” Id.
Plaintiff does not identify the prison gang with which he was previously affiliated. Rather, he claims that the fact that he dropped out of a gang makes him “a target for all the other gangs,” because all prison gang members “hate gang dropouts.” Id. (emphasis added). After Plaintiff filed the initial complaint, he was transferred to ISCI. Plaintiff states that Defendant Lieutenant Craig “allowed [plaintiff] to be moved”
between prisons despite “knowing the threat against” him. Id. at 2. Plaintiff also alleges that the warden of ICI-O improperly moved Plaintiff out of that prison, and that the warden of ISCI violated his rights by “putting Plaintiff on a unit where these rival gangs have control.” Id. It is unclear what precise role each of these Defendants played in the decision to transfer Plaintiff from ICI-O to ISCI.
Plaintiff requested protective custody at ISCI. At the time he filed the Amended Complaint, Plaintiff was being held in administrative custody pending placement in protective custody. Plaintiff acknowledges that, because he is segregated, he is now “physically safe” from attack by prison gang members. Id. at 4. Plaintiff claims, however, that his “mental
health is suffering.” Id. at 5.
2 The Court cites to the computer-generated page numbers from the Court’s CM/ECF system. Plaintiff spends his days afraid because he is “surrounded” by members of several different prison gangs. Thus, it appears that some unidentified gang members are housed somewhere on Plaintiff’s unit, and he worries that the “only thing seperating [sic] [him]
from people that want to kill [him] is a door.” Id. Plaintiff states, “I feel like a gold fish in a fish tank with a cat sitting outside my fish tank, looking at me, waiting, waiting to kill me.” Id. He is “constantly on fight or flight mode.” Id. at 8. Plaintiff also alleges he has PTSD from living in a similar situation from 2007 to 2010. Sec. Suppl. to Am. Compl., Dkt. 11, at 2.
Plaintiff wants mental health treatment and states he has not seen a mental health provider in the three months he has been housed in his current cell. First Suppl. to Am. Compl., Dkt. 10, at 2. But Plaintiff does not assert that he has actually requested mental health treatment or that Defendants, none of whom is a medical or mental health care provider, declined to facilitate such treatment.
Plaintiff contends that IDOC has a practice of placing gang members throughout the prison amongst the prison population—instead of housing gang members all together within their own gangs—so that “rival gang members” are placed “on the same units often.” Am. Compl. at 6; see also id. at 3 (“[It] is not just [an] I.S.C.I. problem, or I.M.S.I. problem, it is a Dept. problem.”) Therefore, he intends to add Josh Tewalt, the Director of
the IDOC, as a defendant in this case. Because mental health is equally as important as physical health, Plaintiff seeks injunctive relief in the form of an order requiring (1) that IDOC safely house gang dropouts “on their own seperate [sic] units” and (2) that Plaintiff be provided with mental health treatment. Id. at 6–7. Plaintiff does not seek monetary damages. Id. 4. Discussion
Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court will, however, grant Plaintiff 60 days to file a second amended complaint. Any such complaint should take into consideration the following. A. Legal Standards i. Section 1983 Claims in General 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 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 that violated the Constitution, or knowingly refused to terminate a series of such acts, which
the supervisor “knew or reasonably should have known would cause others to inflict a constitutional injury”; (2) knowingly failed to act or acted improperly “in the training, supervision, or control of his subordinates”; (3) acquiesced in the constitutional deprivation; or (4) engaged in “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1205–09 (internal quotation marks omitted).
A claim that a supervisor or training official failed to adequately train subordinates ordinarily requires that, “in light of the duties assigned to specific officers or employees[,] the need for more or different training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the [supervisor or training official] can reasonably be said to have been deliberately indifferent to the need.” City of
Canton v. Harris, 489 U.S. 378, 390 (1989). That is, to maintain a failure-to-train claim, a plaintiff must allege facts showing a “pattern of violations” that amounts to deliberate indifference. Connick v. Thompson, 563 U.S. 51, 72 (2011). Likewise, “a failure to supervise that is sufficiently inadequate may amount to deliberate indifference” that supports a § 1983 claim, but there generally must be a pattern of violations sufficient to render the need for further supervision obvious.
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks omitted). That is, if a supervisory or training official had “knowledge of the unconstitutional conditions” through such a pattern of violations—including knowledge of the “culpable actions of his subordinates”—yet failed to act to remedy those conditions, that official can be said to have acquiesced “in the unconstitutional conduct of
his subordinates” such that a causal connection between the supervisor and the constitutional violation is plausible. Starr, 652 F.3d at 1208. To bring a § 1983 claim against a local governmental entity or a private entity performing a government function—such as the company providing Idaho inmates with medical treatment under contract with the IDOC—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). Under Monell, the requisite elements of a § 1983 claim against such a defendant are the following: (1) the plaintiff was deprived of
a constitutional right; (2) the 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). Further, a policy-based § 1983 claim may be maintained “when the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate’s unconstitutional decision or action and the basis for it.” Clouthier v. County
of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010) (internal quotation marks omitted), overruled in part on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc). 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 Plaintiff’s injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679.
ii. Eighth Amendment Claims Plaintiff asserts his § 1983 claims under the Eighth Amendment, which protects against cruel and unusual punishment. To state a claim under the Eighth Amendment, a plaintiff must show that he is (or was) “incarcerated under conditions posing a substantial risk of serious harm,” or that he has been deprived of “the minimal civilized measure of life’s necessities” as a result of the defendant’s actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). An Eighth Amendment claim
requires the plaintiff to satisfy both (1) an objective standard, “that the deprivation was serious enough to constitute cruel and unusual punishment, and (2) a subjective standard, that the defendant acted with “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).
To rise to the level of an Eighth Amendment violation, the deprivation alleged must be objectively sufficiently harmful, Farmer, 511 U.S. at 834, or, in other words, sufficiently “grave” or “serious,” Wilson v. Seiter, 501 U.S. 294, 298 (1991). As the United States Supreme Court has explained: Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks, citation, and alteration omitted). With respect to the subjective prong of an Eighth Amendment claim, a defendant acts with deliberate indifference only if the defendant (1) was aware of the risk to the prisoner’s health or safety, and (2) deliberately disregarded that risk. Farmer, 511 U.S. at 837. That is, a defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. “If a [prison official] should have been aware of the risk, but was not, then the
[official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Moreover, even prison officials or medical providers who did know of a substantial risk to an inmate’s health or safety will not be liable under § 1983 “if they responded reasonably to the risk, even if
the harm ultimately was not averted.” Farmer, 511 U.S. at 844. a) Failure-to-Protect Claims Prison officials who act with deliberate indifference “to the threat of serious harm or injury” by one prisoner against another are subject to liability under § 1983. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). “Having incarcerated persons with
demonstrated proclivities for antisocial criminal, and often violent, conduct, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Farmer, 511 U.S. at 833 (internal quotation marks, citation, and alterations omitted).
As this Court has previously stated, a “prison official’s duty under the Eighth Amendment is to ensure reasonable safety, not absolute safety.” Martinez v. Field, No. 1:17-CV-00337-DCN, 2020 WL 2576178, at *7 (D. Idaho May 21, 2020) (unpublished) (internal quotation marks omitted). “General fears about being harmed by a fellow inmate or a prison gang are not enough” to establish an Eighth Amendment violation: Inmates have no claim under the Eighth Amendment based on a general unsubstantiated fear of assault by a fellow inmate or by a specific group. Otherwise, courts would be flooded with prisoner litigation. Instead, to satisfy Farmer, the prisoner must present evidence of a particularized fear based upon prior threats or upon members of a specific group who have the motive and the ability to commit an assault themselves or through intermediaries. Id. at *8; see Savocchio v. Crabtree, No. CV-97-1698-ST, 1999 WL 562692, at *5 (D. Or. July 12, 1999) (unpublished) (holding that inmate satisfied burden of showing sufficiently serious deprivation from fears of attack by gang members because petitioner “had long-standing problems with members of [the gang], including a bad drug deal[,] … a contract being placed on his life,” and having been identified as a snitch). Even an obvious danger of attack by another inmate does not result in liability if the official is not subjectively aware of it. However, a prison official cannot “escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Farmer, 511 U.S. at 843. A plaintiff asserting deliberate indifference based on a placement of rival gang members in the same cell cannot meet the subjective prong of the Eighth Amendment unless the individual who made the housing decision knew that the inmates were
members of rival gangs. See Mooring v. San Francisco Sheriff’s Dep’t, 289 F. Supp. 2d 1110, 1116–17 (N.D. Cal. 2003) (pretrial detainee context). If the decisionmaker understood from housing records that the inmates were members of rival gangs and then placed them in the same cell, the subjective prong may indeed be satisfied. See id. at
1117 (“[T]here is no evidence that [defendant] knew [plaintiff] was in the Norteno gang and there is no evidence that he could have learned that fact by looking at [plaintiff’s] housing record.”). That is, a plaintiff must plausibly allege that the defendants knew the particular gang affiliation of each inmate and inferred that housing them together would be unsafe.
b) Claims of Inadequate Medical or Mental Health Treatment 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 in the medical context 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. 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 1051, 1061 (9th Cir. 2004).
“There is not one proper way to practice medicine in a prison, but rather a range of acceptable courses based on prevailing standards in the field.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (internal quotation marks omitted). Accordingly, mere differences in judgment as to appropriate medical diagnosis and treatment between an inmate and prison medical providers—or, for that matter, between 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 prove that medical providers chose one 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). To violate the Eighth Amendment, the choice of treatment must have been “so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional
would have so responded under those circumstances.” Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998); see also Lamb v. Norwood, 895 F.3d 756, 760 (10th Cir. 2018) (“[P]rison officials do not act with deliberate indifference when they provide medical treatment even if it is subpar or different from what the inmate wants.”). Non-medical prison personnel generally are entitled to rely on the opinions of
medical professionals with respect to the medical treatment of an inmate. However, if “a reasonable person would likely determine [the medical treatment] to be inferior,” the fact that an official is not medically trained will not shield that official from liability for deliberate indifference. Snow, 681 F.3d at 986 (internal quotation marks omitted); see also McGee v. Adams, 721 F.3d 474, 483 (7th Cir. 2013) (stating that non-medical personnel may rely on medical opinions of health care professionals unless “they have a reason to believe (or actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner”) (internal quotation marks omitted). The Eighth Amendment requires that prison medical providers exercise informed medical judgment. Thus, if a medical treatment is denied because of a blanket governmental policy—rather than an individualized determination of the appropriate treatment for the particular inmate—a factfinder may infer deliberate indifference. See
Rosati v. Igbinoso, 791 F.3d 1037, 1039–40 (9th Cir. 2015) (“Rosati plausibly alleges that prison officials were aware of her medical history and need for treatment, but denied the surgery because of a blanket policy against [sex reassignment surgery].”); Allard v. Gomez, 9 F. App’x 793, 795 (9th Cir. 2001) (unpublished) (“[T]here are at least triable issues as to whether hormone therapy was denied ... on the basis of an individualized
medical evaluation or as a result of a blanket rule, the application of which constituted deliberate indifference to [plaintiff’s] medical needs.”). However, if providers make an individualized assessment and choose a treatment that, in their informed judgment, is medically appropriate, a plaintiff generally cannot establish deliberate indifference. See Lamb, 895 F.3d at 760 (“[The plaintiff] is obtaining
psychological counseling and hormone treatments, including estrogen and testosterone- blocking medication. Though prison officials have not authorized surgery or the hormone dosages that [the plaintiff] wants, the existing treatment precludes a reasonable fact- finder from inferring deliberate indifference.”); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (“While the medical community may disagree among themselves as to the best form of treatment for plaintiff’s condition, the Department of Corrections made an informed judgment as to the appropriate form of treatment and did not deliberately
ignore plaintiff’s medical needs.”). In such a case, a plaintiff must plausibly allege that the defendants intentionally interfered with appropriate medical diagnosis and treatment—for example, by “creat[ing] a pretextual report to support denial” of a requested treatment. Norsworthy, 87 F. Supp. 3d at 1117. B. The Amended Complaint and Supplements Do Not State a Plausible § 1983 Claim Plaintiff’s failure-to-protect claims are implausible. Plaintiff acknowledges that he is not in danger of attack by prison gang members and that he is “physically safe.”
Therefore, he has not plausibly alleged that, objectively, he is in substantial risk of serious harm as a result of his being celled with gang members. Additionally, Plaintiff has not satisfied the subjective prong of the Eighth Amendment analysis; he makes only generalized allegations that Defendants knew of the danger posed to Plaintiff, without including any facts supporting these conclusory statements. See 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)). Plaintiff’s mental health treatment claims are also implausible. Plaintiff has not named any medical or mental health care provider as a defendant, nor has he alleged that any Defendant interfered with a request for mental health treatment.
Plaintiff may attempt to remedy these deficiencies in a second amended complaint. 5. Standards for Second Amended Complaint If Plaintiff chooses to further 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). 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—for example, Plaintiff must
allege facts satisfying the elements of a failure-to-protect or inadequate-medical- treatment claim; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant. Further, any second 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 second amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as the “Second 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 a second amended complaint, Plaintiff must also file a “Motion to
Review the Second Amended Complaint.” If Plaintiff does not amend within 60 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's requests to supplement the complaint (Dkts. 10 & 11) are GRANTED. 2. Plaintiff has failed to state a claim upon which relief may be granted and has 60 days within which to file an amended complaint as described above. Any amended complaint will be limited to 20 pages. See General Order 342, § A(1)(a). If Plaintiff does not amend within 60 days, this case may be dismissed without further notice. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if Plaintiff no longer intends to pursue this case.°
ea DATED: August 2, 2021 od) B.LymWinmill SRICT OF U.S. District Court Judge
3 A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for frivolity, for maliciousness, or for failure to state a claim upon which relief may be granted and, therefore, does not count as a “strike” under 28 U.S.C. § 1915(g). INITIAL REVIEW ORDER BY SCREENING JUDGE - 20