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Witherall v. Bell

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

December 14, 2017

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

          ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS

          Brian Morris, United States District Court Judge.

         Plaintiff Allen Witherall (“Witherall”) filed his Amended Complaint on May 16, 2017. (Doc. 7). The Complaint alleges various civil rights violations against United States Marshals, employees and medical providers at Crossroads Correctional Center in Shelby, Montana, and employees and medical providers at the Yellowstone County Detention Facility in Billings, Montana. (Doc. 7.) Witherall has also filed a Motion for Preliminary Injunction (Doc. 9), and three Motions for Leave to file a supplement to his amended complaint. (Docs. 12; 14; 19.)

         United States Magistrate Judge John Johnston issued an Order and Findings and Recommendations in this matter on November 6, 2017. (Doc. 22.) Judge Johnston recommended that the Court deny Witherall's motion for preliminary injunction. (Docs. 9; 22 at 29.) Judge Johnston recommended that Witherall's Motions to Supplement (Docs. 12; 19) be denied as futile. Judge Johnston further recommended the Court dismiss the Crossroads Correctional Center defendants and claims. (Doc. 22 at 29.) Finally, Judge Johnston recommended that the Court dismiss Witherall's claim that the United States Marshals Service impeded Witherall's access to his attorney. (Doc. 22 at 29.)

         No party filed objections to Judge Johnston's Findings and Recommendations. The Court has thus reviewed the Findings and Recommendations for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

         I. Preliminary Injunction

         Preliminary injunctive relief is an “extraordinary and drastic” remedy. Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). A party seeking a preliminary injunction must demonstrate a likelihood of success on the merits and a likelihood of irreparable harm. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). The movant additionally must establish that the balance of equities and public interest favor issuance of the injunction. Winter, 555 U.S. at 20. A court should not grant a preliminary injunction unless the movant has carried his burden “by a clear showing.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012).

         Witherall moves for a preliminary injunction requiring defendants to provide him with specific medications. (Doc. 9 at 1-2.) Judge Johnston found that Witherall failed to meet the preliminary injunction standard because he failed to state an underlying claim regarding denial of pain medication. (Doc. 22 at 23.) As such, Witherall is unable to demonstrate a likelihood of success on the merits. The Court finds no error in Judge Johnston's recommendation to deny Witherall's motion for preliminary injunction. (Doc. 9.)

         II. Claims Prohibited Under Minneci v. Pollard

         Judge Johnston recommended that the Court deny Witherall's Motions to Supplement (Docs. 12; 19) as futile based on Minneci v. Pollard, 565 U.S. 118 (2012). (Doc. 22 at 30.) Judge Johnston further recommended that Witherall's claims against Crossroads Correctional Center Defendants Fender, Phipps, Crane, Pearson, Mulner, Madrid, Faque, Hodges, Hanson, Rawls, Gribble, and Unknown Crossroads Health Services Administrator be dismissed based on Minneci. (Doc. 22 at 30.)

         A claimant ordinarily may bring an action for constitutional violations committed by federal actors in federal court under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Where the claimant is a prisoner seeking damages from privately employed personnel at a privately operated federal prison for conduct “that typically falls within the scope of traditional state tort law, ” however, the Supreme Court has held that Bivens does not apply. Minneci, 565 U.S. at 131. The claimant must instead seek a remedy under state tort law. Id.

         Witherall's motions to supplement seek to add claims against additional employees of Crossroads Correctional Center. Crossroads is a private correctional facility. (Doc. 22 at 4.) Witherall's claims against the above-named defendants include claims regarding provision of medical care, sleep deprivation, and unhealthy meals. Allegation of additional facts could not cure these claims of their Minneci defect. The Court finds no error in Judge Johnston's analysis that Minneci requires that the Court dismiss these claims. (Doc. 22 at 4-5.) The Court further finds no error in Judge Johnston's conclusion that Witherall's Motions to Supplement (Docs. 12; 12) should be denied as futile. (Doc. 22 at 23-24.)

         III. Access to Attorney Claim

         Witherall claims that the United States Marshals Service violated his Sixth and Fourteenth Amendment rights to a fair trial, effective assistance of counsel, due process, and equal protection of the laws, by housing him more than 300 miles away from his defense counsel. Judge Johnston recommended that the Court dismiss Witherall's claim against the United States Marshalls Service as barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). (Doc. 22 at 28-29.)

         The Supreme Court in Heck held that plaintiff seeking damages under 42 U.S.C.A. § 1983 for unconstitutional imprisonment or other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, must prove that his conviction or sentence has been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. Heck, 512 U.S. at 486-87. Judge Johnston found that Witherall's conviction has not been ...


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