UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO FORREST GLENN SHUNN, Case No. 1:22-cv-00238-DCN Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE
IDAHO DEPARTMENT OF CORRECTION; IDAHO STATE CORRECTIONAL INSTITUTION; and WARDEN WESSELER,
Defendants.
The Clerk of Court conditionally filed Plaintiff Forrest Glenn Shunn’s Complaint as a result of Plaintiff’s status as an inmate. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. § 1915A. 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. Pleading Standards and Screening Requirement 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). Under modern pleading standards, Rule 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)). The Iqbal/Twombly “facial plausibility” standard is met when a complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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). Bare allegations that amount to a mere restatement of the elements of a
cause of action, without adequate factual support, are not enough. The Prison Litigation Reform Act (“PLRA”)1 requires that the Court 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 any claims
that do not have adequate factual support or are frivolous or malicious. 28 U.S.C. § 1915A. The Court also must dismiss claims 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. Id. These last two categories—together with claims that fall outside a federal court’s narrow grant of jurisdiction—encompass those claims that might, or might not, have
factual support but nevertheless are barred by a well-established legal rule. The Court liberally construes the pleadings to determine whether a case should be
1 Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq. dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for the absence of a cognizable legal theory. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v.
Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (discussing Federal Rule of Civil Procedure 12(b)(6)), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (stating that Rule 12(b)(6) authority to dismiss claims was expanded by the PLRA, giving courts power to dismiss deficient claims, sua sponte, before or after opportunity to amend).
A court is not required to comb through a plaintiff’s exhibits or other filings to determine if the complaint states a plausible claim. Therefore, in its review under § 1915A, the Court has reviewed only the Complaint found at Docket No. 3, not the affidavits or other documents Plaintiffs has submitted to the Court. See General Order 342, In Re: Procedural Rules for Prisoner Civil Case Filings and for Prisoner E-Filing Program,
§ A(1)(c) (“No affidavits may be attached to a complaint or any type of amended complaint. Instead, affidavits must be exchanged with disclosure statements or attached as exhibits to motions, responses to motions, or replies to motions.”). 2. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction
(“IDOC”), currently incarcerated at the Idaho Maximum Security Institution (“IMSI”). Plaintiff alleges that, when he was incarcerated at the Idaho State Correctional Institution (“ISCI”), he was sexually assaulted, presumably by another inmate. Compl., Dkt. 3, at 2. Plaintiff notified unidentified officials of the rape by submitted Health Services Request forms. Plaintiff alleges that Defendant Wesseler falsely reported that Plaintiff was taken to the hospital and tested and that the test revealed no evidence of rape. Plaintiff alleges that no such test was performed. Id.
Plaintiff sues the IDOC, ISCI, and Warden Wesseler, arguing that Defendants violated the Eighth and Fourteenth Amendments and the Prison Rape Elimination Act, 34 U.S.C. § 30302 et seq. (“PREA”). 3. Discussion Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court
will, however, grant Plaintiff 60 days to amend the Complaint. Any amended complaint should take into consideration the following. A. Standards of Law Governing § 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.2 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Prison officials generally are not liable for damages in their individual capacities under § 1983 unless they personally participated in the alleged constitutional violations.
2 States and state entities are not “persons” subject to suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, Plaintiff’s claims against the IDOC and ISCI are implausible. Further, even if the IDOC were a “person” for purposes of § 1983, it would be immune from suit in federal court under the Eleventh Amendment. Hans v. Louisiana, 134 U.S. 1, 16–18 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Quern v. Jordan, 440 U.S. 332, 342–44 (1979) (holding that § 1983 does not waive state sovereign immunity); Esquibel v. Idaho, No. 1:11-cv-00606- BLW, 2012 WL 1410105, at *6 (D. Idaho Apr. 23, 2012) (holding that Idaho itself has not waived state sovereign immunity for constitutional claims). Plaintiff should omit any claims against these Defendants from his amended complaint. 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). B. Eighth Amendment Claims The Eighth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, protects prisoners 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 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. i. Failure-to-Protect Claims Plaintiff may be asserting that prison officials failed to protect him from the rape. If
an inmate faces a “threat of serious harm or injury” from another inmate, prison officials who act with deliberate indifference to that threat are subject to liability under § 1983. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986); see also Farmer, 511 U.S. at 833 (“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.”) (cleaned up). Deliberate indifference in the context of a failure-to-protect claim does not require that a prison official knew the plaintiff “was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Farmer, 511 U.S. at 843. However, the deliberate indifference standard does
mean that even an obvious and substantial risk of assault by one inmate against another does not result in liability so long as the defendant official was not subjectively aware of that risk. Id. at 844. Plaintiff’s only allegation against any particular Defendant is that Defendant Wesseler “lied on a form saying [Plaintiff] was taken to the hospital and tested and for rape result was NO evidence.” Compl. at 2. However, the Complaint does not include sufficient facts to raise a reasonable inference that Defendant Wesseler acted with deliberate
indifference when she reported Plaintiff had been tested at the hospital. The “obvious alternative explanation” is that Wesseler was simply mistaken about the circumstances. See Iqbal, 556 U.S. at 682. Additionally, even if Wesseler took improper action after the rape, the Complaint does not plausibly allege that—before the inmate attacked Plaintiff—any Defendant acted with deliberate indifference to a substantial risk of serious harm to
Plaintiff. Plaintiff may attempt to remedy these deficiencies in an amended complaint. ii. Potential Medical or Mental Health Treatment Claims It is unclear whether Plaintiff is also seeking to assert Eighth Amendment claims of inadequate medical or mental health treatment. The Court provides the following standards
of law in the event Plaintiff intends to do so in an amended pleading. Regarding the objective standard for Eighth Amendment prison 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). With respect to the subjective prong of the Eighth Amendment analysis, deliberate indifference in the medical or mental health 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. 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 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. “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 an inmate’s medical treatment. 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).
C. PREA Claims Plaintiff asserts that the investigation following his rape, including Wesseler’s alleged false reporting, did not follow protocols established by PREA. PREA “was enacted to address the problem of rape in prison by creating and applying national standards to prevent, detect, and respond to prison rape, and by ensuring compliance of state and federal
prisons by conditioning eligibility for federal grant money on compliance with the standards.” Barber v. Cox, No. 1:17-CV-00318-BLW, 2019 WL 454090, at *1 n.1 (D. Idaho Feb. 5, 2019) (unpublished). However, PREA does not provide a private right of action enforceable by individual prisoners. Id.; see also Krieg v. Steele, 599 F. App’x 231, 232 (5th Cir.) (unpublished)
(collecting cases), cert. denied, 136 S. Ct. 238 (2015); see also, e.g., Hill v. Hickman Cty. Jail, 2015 WL 5009301 (M.D. Tenn. August 21, 2015) (unpublished) (dismissing PREA claim for lack of private right of action); Montgomery v. Harper, 2014 WL 4104163, at *3 (W.D. Ky. Aug. 19, 2014) (unpublished) (“[T]his Court concludes that the PREA creates no private right of action.”); Holloway v. Dep’t of Corr., 2013 WL 628648, at *2 (D. Conn. Feb. 20, 2013) (“There is nothing in the PREA that suggests that Congress intended it to create a private right of action for inmates to sue prison officials for non-compliance to the
Act.”). Therefore, Plaintiff’s PREA claims are implausible and should be omitted from any amended complaint. D. State Law Claims In addition to § 1983 claims, Plaintiff has checked a box on his Complaint form indicating that he intends to pursue unidentified state law claims. Compl. at 1, 2. Because
the Complaint fails to state a federal claim upon which relief may be granted, the Court would decline to exercise supplemental jurisdiction over Plaintiff’s state law claims even if such claims were identified. If Plaintiff is allowed to proceed on a federal claim in an amended complaint, and if the amended complaint identifies and presents a plausible state law claim, the Court will reconsider the issue of supplemental jurisdiction.
4. 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. § 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 constitutional or statutory 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 an Eighth Amendment claim against each Defendant; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each
defendant. 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 an “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 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. The Complaint fails to state a claim upon which relief may be granted. Plaintiff has 60 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. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if Plaintiff no longer intends to pursue this case.3 2. If Plaintiff does not file a timely amended complaint, this case may be dismissed with prejudice and without further notice for failure to state a claim
upon relief may be granted, failure to prosecute, or failure to comply with a Court order. 3. Because an amended complaint is required for Plaintiff to proceed, Plaintiff’s Motion to Amend to Add IDOC Parole Board and Motion to Amend Case for Protection Order on IDOC (Dkt. 10 & 12) are MOOT. Plaintiff must
include all claims against all Defendants in any amended complaint. 4. Plaintiff’s Motion to Provide Service of the Court to Serve the Defendants (Dkt. 21) is DENIED, for two reasons. First, Plaintiff has not yet been allowed to proceed in this action. Second, Plaintiff is not proceeding in forma pauperis; therefore, the Court will not effectuate service on his behalf. See
28 U.S.C. § 1915(d) (providing for Court service on behalf of pauper- plaintiffs). Even if Plaintiff eventually is allowed to proceed on an amended complaint, he still will be responsible for serving—or obtaining a waiver of service from—each Defendant.
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). 5. 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.
a DATED: September 2, 2022 A aN ° Ry) eee
Mae Ay =—David C. Nye = Chief U.S. District Court Judge
INITIAL REVIEW ORDER BY SCREENING JUDGE - 16