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Witherall v. Bell

United States District Court, D. Montana, Great Falls Division

November 6, 2017

ALLEN WITHERALL, Plaintiffs,
v.
DARRELL BELL, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE.

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         Mr. 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 herein.

         I. INITIAL SCREENING STANDARD

         Because 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.

         A 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).

         Rule 8 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).

         A 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.

         Second, 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. 8(a)(2)).

         “A 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 justice”).

         II. ANALYSIS

         A. Crossroads Defendants

         Crossroads 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. 2011).

         Normally 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 dismissed.

         B. YCDF Defendants

         From 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.

         He was 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).

         For 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.

         In the 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.

         1. Count 2: Denial of Medical Care

         In 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. 2016).

         Approximately 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.

         Mr. 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.

         The 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.

         In 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).

         A 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).

         Allegations 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.

         Mr. 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.

         2. ...


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