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Cherry v. Siegert

United States District Court, D. Idaho

October 8, 2019

STEVE ALLAN CHERRY, Plaintiff,
v.
RONA SIEGERT, J. DOLAN, and JANE and JOHN DOES 1-10, Defendants.

          INITIAL REVIEW ORDER BY SCREENING JUDGE

          B. LYNN WINMILL, U.S. DISTRICT COURT JUDGE

         The Clerk of Court conditionally filed Plaintiff Steve Allan Cherry's Complaint as a result of his status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether any claims should be summarily dismissed under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.

         1. Screening Requirement

         The Court must review complaints filed by prisoners seeking relief against a governmental entity or a government officer or employee, to determine whether summary dismissal is appropriate. Complaints or claims subject to dismissal include those that state a frivolous or malicious claim, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).

         2. Pleading Standard

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In other words, Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant's liability, ” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted).

         3. Factual Allegations

         Plaintiff is a convicted felon in the custody of the Idaho Department of Correction (“IDOC”) who was incarcerated in a Texas overflow facility when he filed his Complaint. His allegations arise from his prior incarceration in an Idaho facility. After he filed his Complaint, the IDOC transferred him back to Idaho.

         On November 11, 2018, Plaintiff discovered a golf-ball size lump in his neck. On November 16, 2018, Dr. Musquiz examined Plaintiff and immediately ordered an ultrasound. Dr. Musquiz said Plaintiff needed to see medical specialists for an MRI, biopsy, and surgery to remove the tumor. In the midst of the discovery and diagnosis of his neck tumor, Plaintiff was transferred to Texas. Defendants IDOC Health Services Contract Monitor J. Dolan and IDOC Director of Health Services Rona Siegert failed to approve the ultrasound testing in a timely manner, either before he left or after he arrived in Texas. Months later, Siegert finally approved the ultrasound, and Plaintiff had the test on January 11, 2019.

         Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs by failing to provide him with a timely ultrasound and failing to approve additional testing and surgery. He further alleges that Siegert failed to properly train and/or supervise Dolan to monitor his needs. Plaintiff was transported back to Idaho for treatment on August 21, 2019, and he remains confined at the Idaho State Correctional Institution.

         4. Standard of Law for Section 1983 Claims

         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 § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a “failure to measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986).

         Prison officials and prison medical providers generally are not liable for damages in their individual capacities under § 1983 unless they personally participated in the alleged constitutional violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677 (“[E]ach Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”). Section 1983 does not allow for recovery against an employer or principal simply because an employee or agent committed misconduct. Taylor, 880 F.2d at 1045. However, “[a] defendant may be held liable as a supervisor under § 1983 ‘if there exists ... a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).

         A plaintiff can establish this causal connection by alleging that a defendant (1) “set[] in motion a series of acts by others”; (2) “knowingly refus[ed] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury”; (3) failed to act or improperly acted in the training, supervision, or control of his subordinates”; (4) “acquiesc[ed] in the constitutional deprivation”; or (5) engag[ed] in “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1205-09. A plaintiff may also seek injunctive ...


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