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Fair v. Atencio

United States District Court, D. Idaho

April 16, 2019

LEE FAIR Plaintiff,


          B. Lynn Winmill U.S. District Court Judge

         Pending before the Court is Defendants' Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Dkt. 12). Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented and oral argument is unnecessary. See Loc. Civ. R. 7.1(d)(2)(ii).


         Plaintiff Lee Fair, a prisoner in the custody of the Idaho Department of Correction (IDOC) filed this complaint against Defendants Henry Atencio and Keith Yordy alleging that they, and other unidentified correctional officers, failed to protect him from an attack by another inmate while he was incarcerated at the Idaho State Correctional Center (ISCC). Dkt. 3 at 6.

         In his Complaint, Mr. Fair alleges that, until 2011, he “was an active gang member of the prison gang ‘Severely Violent Criminals'” (SVC). Dkt. 3, at 6. In 2011, Plaintiff decided to change his life and dropped out of SVC. At that time, the gang “placed an attack and/or kill order out to it's [sic] members and other affilliants [sic] known as a ‘Green Light' on Plaintiff.” Id. As a result, Plaintiff was classified as a protective custody inmate. While incarcerated at the Idaho Correctional Institution in Orofino, Idaho (ICI-O), in 2016, Plaintiff was attacked by two members of a different gang, the Aryan Knights (AK). Plaintiff was later released from prison. Id.

         Plaintiff was rearrested in August 2017 and held in the Ada County Jail, where he was “attacked twice” because of the “Green Light” placed on him by SVC gang leaders. Id. “Plaintiff told his parole officer and on-site officer that he had a Green Light by S.V.C. and required” protective custody; Plaintiff told these individuals that the AK and the Sureños XIII (another prison gang) had also issued a Green Light to attack Plaintiff. Id. Plaintiff was later transferred to IDOC custody and placed at ISCI.

         Plaintiff states that he “gave notice to IDOC classification staff, unit officers, case manager, and psychiatrist care staff” of this Green Light and of Plaintiff's “fear of attacks.” Id. at 7. Plaintiff states that these individuals “did nothing to help him.” Id. In February 2018, Plaintiff was attacked in a foyer by another inmate while Plaintiff was “trying to go to dinner, ” and was seriously injured. Id. According to Plaintiff, this other inmate was not housed in the area of the prison where the attack took place and that, therefore, unidentified correctional officers must have “let [the inmate] in” to the area. Id. at 8. The attack “continued for approximately nine minutes, while medical staff were screaming for officers to intervien [sic], but officers allowed this [to] continue.” Id. at 7.

         Plaintiff claims that despite “the Balla injunction, ” the inmate who attacked Plaintiff had been “housed on the same unit and tier with Plaintiff.” Id. at 8. Plaintiff also asserts that, before the attack, officers in Plaintiff's housing unit “would walk [the other inmate] passed [sic] Plaintiff's cell, and let [him] stop at [Plaintiff's] door kicking it, yelling ‘Fuck You Punk' and ‘Bitch Ass Rat, '” and that the officers “would laugh and further encourage him.” Id.

         Plaintiff alleges that the named Defendants, as well as unidentified individuals, violated his constitutional rights by failing to protect him from the February 2018 attack.


         Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need detailed factual allegations, ” it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. at 557.

         The Supreme Court identified two “working principles” that underlie Twombly in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the court need not accept as true legal conclusions that are couched as factual allegations. Id. Rule 8 does not “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. Second, to survive a motion to dismiss, a complaint must state a plausible claim for relief. Id. at 679. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         A dismissal without leave to amend is improper unless it is beyond doubt that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (issued 2 months after Iqbal). The Ninth Circuit has held that “in dismissals for failure to state a claim, 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.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but whether he “is entitled to offer evidence to support the claims.” Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)(citations omitted).

         Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2472 (2015). Negligence is not actionable under ยง 1983, because a negligent act by a public official is ...

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