Bosse v. Blades

          INITIAL REVIEW ORDER BY SCREENING JUDGE

          DAVID C. NYE, CHIEF U.S. DISTRICT COURT JUDGE

         Plaintiff Michael E. Bosse, a prisoner in custody of the Idaho Department of Correction (IDOC), filed a civil rights action and a request to proceed in forma pauperis. Dkts. 1, 2. The Court is required to review prisoner and pauper complaints seeking relief against a government entity or official to determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915. The Court must dismiss a complaint that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         After reviewing the Complaint, the Court has determined that Plaintiff will be required to file an amended complaint if he desires to proceed.

         REVIEW OF COMPLAINT

         1. Standard of Law

         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).

         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).

         A plaintiff must allege facts showing how each defendant personally violated his constitutional rights. Vague and conclusory allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Rather, “[l]iability under section 1983 arises only upon a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

         There is no respondeat superior liability under §1983, meaning a supervisor cannot be sued simply because he or she is a supervisor. Id. Rather, a plaintiff must allege facts showing that a supervisor participated in an alleged constitutional violation by: (1) “setting in motion a series of acts by others”; (2) “knowingly refus[ing] 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) failing to act or improperly acting in “the training, supervision, or control of his subordinates”; (4) “acquiesc[ing] in the constitutional deprivation”; or (5) engaging in “conduct that showed a reckless or callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1205-09 (9th Cir. 2011) (internal quotations and punctuation omitted).

         A plaintiff cannot simply restate these standards of law in a complaint; instead, a plaintiff must provide specific facts supporting the elements of such a claim. He or she must allege facts showing a causal link between the Defendant and the injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679.

         2. Factual Allegations

         Plaintiff asserts that, after his assault at an Idaho state prison in January 2017, prison officials refused to tell him the identity of the person who assaulted him and refused to put a flag in his file indicating that he should never be housed with the assailant again. Plaintiff alleges that he suffered serious injuries. He wants to ensure that he is not housed near the assailant now or in the future.

         Plaintiff was transferred to a Texas prison facility to alleviate crowding in the Idaho prisons. He asserts that he has a Montana detainer lodged against him, and he asked Idaho officials to send him to Montana to answer charges under the detainer, rather than send him to Texas. The Idaho officials ignored his request and sent him to Texas.

         Plaintiff alleges that, in the Texas facility, he is housed with prisoners who should be in a maximum-security facility. He fears that his assailant is also housed with him, but he does not know his assailant's identity. Plaintiff contends that, because he is a sex offender, he is at a great risk of being assaulted again, ...