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Warner v. Curry

United States District Court, D. Montana, Missoula Division

February 7, 2018

DANNY LEE WARNER, JR., Plaintiff,
v.
CHUCK CURRY, JENNIFER ROOT, JAMES DUSING, TAMMY BOWEN, SGT. SCHUELEN, and CBM MANAGED SERVICES, Defendants.

          ORDER, AND FINDINGS AND RECOMMENDATION

          Jereiah C. Lynch United States Magistrate Judge

         Plaintiff 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 Warner's motion.

         Federal 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; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28U.S.C. § 1915(e)(2).

         The 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).

         I. Background

         On 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, Montana.

         A. Medical Conditions

         When 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.

         Warner 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 needs.

         Warner also complained to Defendant FCDC Commander Jennifer Root about his pain and medications. But Root similarly informed Warner that only Dusing could prescribe medications.

         At some 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.

         In May, 2017, Dusing finally ordered Tramadol for Warner's pain even though Dusing still had never ordered tests or reviewed Warner's medical records.

         The 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 months.

         Warner 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 assertion.

         Warner 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.

         B. Nutritional Matters

         Warner 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.

         Warner 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.

         C. Access to Courts

         Warner 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 criminal case.

         Warner 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 circumstances.

         Warner 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 ignored it.

         D. Punitive Isolation

         Warner 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 pretrial detainee.

         In one 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.

         E. Mail and Publications

         Warner 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.

         F. Searches and Seizures

         Warner 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 Constitution."

         II. Discussion

         Because 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)).

         A. 42 U.S.C. § 1983

         Warner's 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.

         Section 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.

         B. Individual Defendants ...


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