United States District Court, D. Montana, Missoula Division
ORDER, AND FINDINGS AND RECOMMENDATION
Jereiah C. Lynch United States Magistrate Judge
Danny Warner, appearing pro se, commenced this action with
his complaint and his motion requesting leave to proceed in
forma pauperis under 28 U.S.C. § 1915. The Court granted
law applicable to in forma pauperis proceedings requires the
Court to conduct a preliminary screening of the allegations
set forth in the litigant's pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28U.S.C. § 1915(e)(2).
Court will review Warner's pleading to consider whether
this action can survive dismissal under the provisions of
section 1915(e)(2), or any other provision of law. See
Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142
(9th Cir. 2005).
November 23, 2016, Warner was arrested by law enforcement
officers and incarcerated at the Flathead County Detention
Center ("FCDC") in Kalispell, Montana. This action
arises from events that occurred at the FCDC while Warner was
held in custody awaiting resolution of criminal charges that
were pending against him. On December 4, 2017, Warner filed a
notice of his change of address establishing that he is now
incarcerated at the Montana State Prison in Deer Lodge,
Warner arrived at FCDC he informed Defendant Tammy Bowen, a
nurse, that he had neck, back and hip injuries, and he was
taking the following medications: Gabapentin and Tramadol.
Warner requested his medications, but Bowen explained to him
that only the doctor, Defendant James Dusing, could prescribe
medications for him.
states Dusing refused to prescribe medications without first
reviewing Warner's medical records. Dusing did not obtain
Warner's medical records, and refused to order necessary
medical tests to assess Warner's injuries and medication
also complained to Defendant FCDC Commander Jennifer Root
about his pain and medications. But Root similarly informed
Warner that only Dusing could prescribe medications.
point Dusing informed Warner that due to FCDC policy he could
not prescribe Tramadol or Tylenol 3, or order an MRI or other
tests. Instead Dusing prescribed a muscle relaxer for Warner
which allegedly exacerbated his injuries and pain. Warner
states he "could barely walk", and "FCDC"
would not do anything for him.
2017, Dusing finally ordered Tramadol for Warner's pain
even though Dusing still had never ordered tests or reviewed
Warner's medical records.
provision of Tramadol, however, was short-lived as Warner
states the prescription was later "altered" and he
was again in pain. He alleges Dusing subsequently refused to
provide the pain medication after the alteration occurred.
Thus, Warner states he continued in pain for a total of 8
asserts that Defendants Flathead County Sheriff Chuck Curry,
Dusing, Root and Bowen were all made aware that their
deliberate indifference to his medical needs was illegal. But
he provides no supporting facts relative to this specific
next complains about his eye care at FCDC. He states he is
legally blind, that he requested an eye exam and eye glasses,
but he was told he would have to pay for his eyesight
treatment. He alleges "Defendants Bowen, Dusing, Root,
and Curry have all denied Plaintiff medical attention for his
eyes[, ]" but he does not provide further facts
supporting this allegation.
states he has Celiac disease and needs a gluten-free diet.
But the gluten-free meals he received were not nutritionally
adequate, and Defendant CBM Managed Services - the contractor
obligated to provide meals at FCDC - did not follow a menu
that was approved by a dietician. He states the food portions
were too small and the protein content was too low. Some food
he received contained gluten, and some food was rotten and
uncooked. He complains that CBM Managed Services did not
provide fresh fruit and vegetables, and the bread was
"unhealthy." Warner alleges he experienced various
medical problems as a result of the nutritional situation. He
experienced vitamin deficiencies, weight loss, constipation,
severe cramps, stomach problems, irregular bowel movements,
and pain which required that he receive an expensive CT scan
of his stomach.
alleges Defendants CBM Managed Services, Root and Curry were
"all aware that meals at FCDC [were] nutritionally
inadequate." And he alleges they each were deliberately
indifferent to inmates' health.
Access to Courts
alleges the FCDC facility did not have an adequate law
library. He asserts the lack of resources "severely
hampered his ability to prepare a defense" in his
further complains FCDC denied him paper, a notary, and a
phone when he had a prearranged call with an attorney. He
states Defendant Sgt. Schuelen was aware of these
was also denied manila envelopes, and was later charged a
high fee for the envelopes. He alleges "Defendants Root
and Curry are responsible for these violations and denying
access to the courts." Warner states he also requested
Defendant Root provide him with copies of his intake and
medical records which he needed for his criminal case. Root
refused to provide them, and Root required Warner to subpoena
the records. But even after Warner got a subpoena he states
he received only portions of his records. Warner alleges
Defendant Curry "was made aware of this issue" but
alleges he was placed in "punitive isolation on several
occasions without due process of law[, ] and Defendant
Schuelen has been responsible for most of these." He
asserts he was held in his cell by himself in retaliation for
grievances he filed at FCDC. He states that during the
isolation process he was not informed of any rule violation,
was not allowed to speak, and was not afforded a hearing. He
complains the circumstances constitute arbitrary
"punishment" which he asserts is illegal for a
isolation incident Warner was afforded a hearing, but
Defendant Root did not allow Warner to call witnesses. And
Warner did not receive a written report until 4 weeks after
the hearing. He contends Defendants Root and Curry are
directly responsible for those matters, but he provide no
further specific supporting facts.
Mail and Publications
alleges he was not allowed to have his mail on a couple
occasions while at FCDC, and his mail was held with his
property. He also complains FCDC had a "blanket ban on
all publications." He asserts Defendants Root and Curry
were made aware of the matters but that they were
deliberately indifferent to the circumstances. But he does
not provide further supporting facts as to their conduct.
Searches and Seizures
alleges he was subjected to searches every day when he was at
FCDC. And he was subjected to thorough "shakedowns about
every ten days." Officers went through his legal
materials, made copies of the materials, and gave the copies
to the "deputy attorney." Warner alleges Defendants
Schuelen, Root, and Curry were informed of theses searches
but that they have no "regard for the
Warner is proceeding pro se the Court must construe his
pleading liberally, and the pleading is held "to less
stringent standards than formal pleadings drafted by
lawyers[.]" Haines v. Kerner, 404 U.S. 519, 520
(1972). See also Neitzke v. Williams, 490 U.S. 319,
330 n.9 (1989). Although the Court has authority to dismiss a
defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no
request to amend the pleading was made, unless it determines
that the pleading could not possibly be cured by the
allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000) (quoting Doe v. United States, 58 F.3d
494, 497 (9th Cir. 1995)).
42 U.S.C. § 1983
pleading asserts that his claims arise from alleged
violations of his civil rights protected under the United
States Constitution. The claims are cognizable under 42
U.S.C. § 1983, thereby invoking the federal question
jurisdiction of this Court pursuant to 28 U.S.C. § 1331.
1983 permits claims under federal law against a local
governmental entity, or a state official or employee, if the
plaintiff can establish that the defendant was (1) acting
under color of state law, and (2) deprived the plaintiff of a
federal right secured by the Constitution or laws of the
United States. Kirtley v. Rainey, 326 F.3d 1088,
1092 (9th Cir. 2003). All of Warner's claims
must be analyzed under this basic framework.
Individual Defendants ...