United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE.
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
Allen Witherall filed an Amended Complaint against a number
of United States Marshals; employees and medical providers at
Crossroads Correctional Center (Crossroads) in Shelby,
Montana; and employees and medical providers at the
Yellowstone County Detention Facility (YCDF) in Billings,
Montana. (Doc. 4.) He also filed three Motions for Leave to
file a supplement to his Amended Complaint. (Docs. 12, 14,
19.) His first motion for leave to supplement his Amended
Complaint will be granted but his second and third motions
for leave to supplement will be denied as futile. Mr.
Witherall also filed a Motion to Expedite Screening (Doc. 8)
which is now moot and a Motion for Preliminary Injunction
(Doc. 9) which should be denied.
Witherall's Amended Complaint fails to state a claim upon
which relief may be granted and is subject to dismissal. Mr.
Witherall may file a second amended complaint as set forth
INITIAL SCREENING STANDARD
Mr. Witherall is a prisoner proceeding in forma pauperis, the
Court must review his Amended Complaint under 28 U.S.C.
§§ 1915, 1915A. Sections 1915A(b) and 1915(e)(2)(B)
require the Court to dismiss a complaint filed in forma
pauperis and/or by a prisoner against a governmental
defendant before it is served if it is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief.
complaint is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). “A case is
malicious if it was filed with the intention or desire to
harm another.” Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005). A complaint fails to state a claim upon
which relief may be granted if a plaintiff fails to allege
the “grounds” of his “entitlement to
relief.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation omitted).
of the Federal Rules of Civil Procedure provides that a
complaint “that states a claim for relief must contain
. . . a short and plain statement of the claim showing that
the [plaintiff] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). This rule 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) (quotations omitted).
complaint's allegations must cross “the line from
conceivable to plausible.” Iqbal, 556 U.S. at
680. There is a two-step procedure to determine whether a
complaint's allegations cross that line.
Twombly, 550 U.S. at 556; Iqbal, 556 U.S.
662. First, the Court must identify “the allegations in
the complaint that are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679, 680. Factual
allegations are not entitled to the assumption of truth if
they are “merely consistent with liability, ” or
“amount to nothing more than a ‘formulaic
recitation of the elements' of a constitutional”
claim. Id. at 679, 681. A complaint stops short of
the line between probability and the possibility of relief
where the facts pled are merely consistent with a
defendant's liability. Id. at 678.
the Court must determine whether the complaint states a
“plausible” claim for relief. Iqbal, 556
U.S. at 679. A claim is “plausible” if the
factual allegations, which are accepted as true,
“allow[ ] the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. at 678. This inquiry is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679 (citation omitted). If the factual
allegations, which are accepted as true, “do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
“show[n]”-“that the pleader is entitled to
relief.” Id. (citing Fed.R.Civ.P.
document filed pro se is ‘to be liberally
construed, ' and ‘a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by
lawyers.'” Erickson v. Pardu, 551 U.S. 89,
94 (2007); cf. Fed. Rule Civ. Proc. 8(e)
(“Pleadings must be construed so as to do
is a private prison where Mr. Witherall was incarcerated
under an agreement with the United States Marshals between
December 14, 2016 to March 15, 2017, April 12, 2017 to July
4, 2017, and from October 18, 2017 to October 24, 2017. Even
though the Crossroads' employees are private individuals,
Mr. Witherall was in federal custody while incarcerated at
Crossroads, therefore the Crossroads Defendants are
considered federal actors rather than state actors for
purposes of this case. Pollard v. GEO Group, Inc.,
607 F.3d 583, 588-89 (9th Cir. 2010), rev'd on other
grounds sub nom. Minneci v. Pollard, 132 S.Ct. 617
(2012); see also Lugar v. Edmondson Oil Co., Inc.,
457 U.S. 922, 940-41 (1982); Florer v. Congregation
Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir.
an action for constitutional violations committed by federal
actors can be brought under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). The United States Supreme Court, however, has made
clear that a prisoner cannot assert a Bivens claim
for damages against private prison employees.
Minneci, 132 S.Ct. 617. As such, it is recommended
that all claims against the Crossroads Defendants be
Mr. Witherall's various filings it appears that he was
incarcerated at YCDF for four days beginning on July 8, 2016,
for a short period of time in August 2016, for four days in
November 2016, from November 16, 2016 to December 14, 2016,
from March 15, 2017 to April 12, 2017, from July 4, 2017 to
September 15, 2017, from September 27, 2017 to October 12,
2017, and from October 24, 2017 to present.
initially incarcerated at YCDF on state charges but was taken
into federal custody on December 7, 2016. For purposes of
this Order, the Court will presume that Mr. Witherall's
claims against the YCDF Defendants arise under § 1983.
See, e.g., Belbachir v. County of McHenry, 726 F.3d
975, 978 (7th Cir. 2013) (contract between the Federal Bureau
of Prisons and a county jail does not automatically transform
a state actor into a federal actor). “To establish
§ 1983 liability, a plaintiff must show both (1)
deprivation of a right secured by the Constitution and laws
of the United States, and (2) that the deprivation was
committed by a person acting under color of state law.”
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138
(9th Cir. 2012).
purposes of this Order, the Court will assume that Mr.
Witherall was a pretrial detainee up until April 4, 2017 when
he was found guilty after a jury trial. See United States
v. Witherall, Criminal Action No. 16-00012-BLG-SPW, Doc.
36. A pretrial detainee's constitutional rights relative
to conditions of confinement are addressed under the due
process clause of the Fourteenth Amendment, rather than the
Eighth Amendment's prohibition against cruel and unusual
punishment applicable to convicted inmates. Oregon
Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir.
2003). Therefore, Mr. Witherall's claims arising prior to
April 4, 2017 against the YCDF Defendants will be analyzed as
Fourteenth Amendment claims brought pursuant to 42 U.S.C.
§ 1983. Claims arising after April 4, 2017 against the
YCDC defendants arise under the Eighth Amendment but for ease
of analysis the Court will utilize the lower Fourteenth
Amendment standard to analyze Mr. Witherall's claims
against the YCDF defendants.
past, it was assumed that the standard applicable to a
pretrial detainee's conditions of confinement claims
brought under the Fourteenth Amendment was the same state of
mind requirement as an Eighth Amendment violation, i.e.,
subjective and deliberate indifference to a substantial risk
of serious harm. See Clouthier v. Cty. of Contra
Costa, 591 F.3d 1232 (9th Cir. 2010). However, that
holding was first called into question by the United States
Supreme Court in a Fourteenth Amendment excessive force case.
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473
(2015). More recently, the Ninth Circuit extended the
Kingsley rationale to a Fourteenth Amendment
failure-to-protect claim. Castro v. Cty. of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).
Castro did not expressly extend its holding to other
Fourteenth Amendment violations and the issue is unsettled.
Out of an abundance of caution, however, this Court will
analyze Mr. Witherall's claims under the Castro
objective reasonableness test.
Count 2: Denial of Medical Care
accordance with Kingsley, 135 S.Ct. 2466 and
Castro, 833 F.3d 1060, a pretrial detainee's
Fourteenth Amendment claim for the denial of medical
treatment must be supported by factual allegations which
plausibly demonstrate that:
(1) The plaintiff made a request for medical care; (2) The
plaintiff had a serious medical need; (3) The defendant did
not take reasonable steps to obtain or provide medical care,
even though a reasonable officer (or reasonable medical
staff) in the circumstances would have appreciated the high
degree of risk involved-making the likelihood of harm
obvious; and (4) By not taking such measures, the defendant
caused the plaintiff's injuries.
Guerra v. Sweeny, 2016 WL 5404407, *3 (E.D. Cal.
two weeks before Mr. Witherall entered YCDF on July 8, 2016,
he was shot by a large caliber pistol at a short range five
times in the torso and arm. He suffered a collapsed lung, had
his spleen removed, had four entry or exit wounds in his
chest, three entry or exit wounds in his arm, had an elbow
replacement, and multiple drain tube lacerations. A doctor at
the Billings Clinic gave him a prescription for pain
medications which he had been taking since he had been shot.
Witherall was incarcerated at the YCDF for four days
beginning on July 8, 2016. During that incarceration, an
unknown booking nurse refused to give him the prescribed pain
medications he brought with him to YCDF and insisted that he
only take Ibuprofen. (Witherall Decl., Doc. 10-1 at 1.) In
approximately August 2016, Mr. Witherall was again
incarcerated at the YCDF during which time he was given his
prescribed Dilaudid medications by a different nurse than the
one who denied him his prescribed medications in July 2016.
(Id. at 2.) In November 2016, Mr. Witherall was
again incarcerated at YCDF for four days during which time he
was denied his pain medications by Nurse Vicki.
(Id.) In mid-November 2016, he was again
incarcerated at YCDF and again denied his pain medications by
Nurse Vicki. (Id.) Mr. Witherall informed a number
of Deputy Sheriffs that he was being denied his medications
during these incarcerations.
Court finds these allegations insufficient to state a claim
for denial of medical care against the YCDF defendants. Mr.
Witherall was only incarcerated for short periods of time at
YCDF. As such, there has been no showing that any defendant
failed to take reasonable steps to obtain or provide medical
care, even though a reasonable officer (or reasonable medical
staff) in the circumstances would have appreciated the high
degree of risk involved-making the likelihood of harm
obvious. Mr. Witherall admits he was given Ibuprofen during
these time periods and has not alleged sufficient facts to
show that it was unreasonable to provide Ibuprofen instead of
the prescription medications that Mr. Witherall was
requesting. Further, he has made no showing that by not
taking such measures, any defendant caused him injuries. A
mere delay in treatment, without more, is insufficient to
state a claim of deliberate medical indifference. Sanchez
v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley
v. Nevada Bd. of State Prison Comm'rs, 766
F.2d 404, 407 (9th Cir. 1985). A plaintiff must show that a
delay was harmful, i.e., that the delay caused him a
“tangible residual injury.” Stiltner v.
Rhay, 371 F.2d 420, at 421 n. 3 (9th Cir. 1967). Mr.
Witherall makes no allegation of a tangible residual injury
from any delay in his treatment. Given the short duration of
his stays at YCDF, the Court finds that Mr. Witherall failed
to allege sufficient facts to establish a denial of medical
care at this facility. To the extent Mr. Witherall is able to
truthfully additional facts in support of this claim, he may
attempt to do so.
addition, Mr. Witherall has not presented sufficient facts to
state a claim against named defendants. He alleges Defendants
Linder and Bofto should be held liable because they are
responsible for the YCDF. This is insufficient to state a
claim for supervisory liability. “[A] plaintiff may
state a claim against a supervisor for deliberate
indifference based upon the supervisor's knowledge of and
acquiescence in unconstitutional conduct by his or her
subordinates.” Starr v. Baca, 652 F.3d 1202
(9th Cir. 2011). But supervising officers cannot be held
liable under a respondeat superior theory under section 1983.
Monell, 436 U.S. at 691-94. That is, a defendant
cannot be held liable just because they supervise other
employees. Instead, supervising officers can be held liable
under § 1983 “only if they play an affirmative
part in the alleged deprivation of constitutional
rights.” King v. Atiyeh, 814 F.2d 565, 568
(9th Cir. 1987).
supervisor may be liable: (1) for setting in motion a series
of acts by others, or knowingly refusing to terminate a
series of acts by others, which they knew or reasonably
should have known would cause others to inflict
constitutional injury; (2) for culpable action or inaction in
training, supervision, or control of subordinates; (3) for
acquiescence in the constitutional deprivation by
subordinates; or (4) for conduct that shows a reckless or
callous indifference to the rights of others. Larez v.
City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).
against supervisors which resemble “bald” and
“conclusory” allegations will be recommended for
dismissal. Hydrick v. Hunter, 669 F.3d 937 (9th Cir.
2012). Allegations that a supervisory defendant had personal
knowledge of a constitutional violation will be insufficient
without “specific allegations regarding each
defendant's purported knowledge” of the violation.
Hydrick, 669 F.3d at 942.
Witherall's conclusory allegations that Defendants Linder
and Bofto are responsible for all actions at YCDF are
insufficient to state a claim for relief. He appears to name
these individuals simply because they are supervisors.
Although he alleges Sheriff Linder was sent kites regarding
this situation is insufficient given the short duration of
Mr. Witherall's various incarcerations at YCDF.