United States District Court, D. Idaho
SHAWN M. KESLING, Plaintiff,
MELISA BECIROVIC; JOSH TEWALT; TIMOTHY R. McKAY; DAVID DIETZ; JAY CHRISTENSEN; STATE OF IDAHO; and JOHN DOES 1-4, Defendants.
INITIAL REVIEW ORDER BY SCREENING JUDGE
C. Nye Chief U.S. District Court Judge
Clerk of Court conditionally filed Plaintiff Shawn M.
Kesling's Complaint as a result of Plaintiff's status
as an inmate and in forma pauperis request. Plaintiff has
since filed an Amended Complaint. See Dkt. 6. The
Court now reviews the Amended Complaint to determine whether
it should be summarily dismissed in whole or in part under 28
U.S.C. §§ 1915 and 1915A. Having reviewed the
record, and otherwise being fully informed, the Court enters
the following Order directing Plaintiff to file a second
amended complaint if Plaintiff intends to proceed.
Court must review complaints filed by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity, as well as complaints
filed in forma pauperis, to determine whether summary
dismissal is appropriate.
Court must dismiss a complaint or any portion thereof 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) & 1915A(b).
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, although Rule 8 “does not require detailed
factual allegations, ... it demands more than an unadorned,
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).
is a prisoner in the custody of the Idaho Department of
Correction (“IDOC”) currently incarcerated at
Idaho State Correctional Center. Plaintiff's claims arise
from Plaintiff's complaints about his case manager,
Defendant Melisa Becirovic.
preparation for his August 2019 parole hearing, Plaintiff and
Becirovic met “on numerous occasions” to develop
Plaintiff's Self-Initiated Progress Report to present to
the commission. See Am. Compl., Dkt. 6, at 8. To be
considered for parole, Plaintiff was required to include in
that Report information about “verifiable housing,
employment and treatment plan[s]” available to
Plaintiff if he were released. Id. Plaintiff asserts
that, because of Defendant Becirovic's “failure to
follow through with time sensetive [sic] appointments and
commitments, ” his Report did not contain this required
information. The commission denied Plaintiff parole and
“continued proceedings indefinitely.”
Id. at 8-9.
was frustrated with this development and apparently expressed
his concerns about Becirovic to two non-defendant program
managers who supervise Becirovic. Id. at 9.
Plaintiff does not describe the substance of his
communications with these managers.
also wrote a letter “directly to defendant Becirovic
expressed his concerns, ” but did not send the letter.
Id. Plaintiff's work supervisors
“vetted” the letter and advised Plaintiff
regarding it. The letter was destroyed after Plaintiff
decided not to send it. Id. Plaintiff does not
describe the substance of the letter.
a few weeks of the parole hearing, an unidentified defendant,
John Doe 3, “communicated the existence of
[Plaintiff's] frustrations to Ms. Becirovic”;
Becirovic also “became aware of the previously
destroyed letter.” Id. Becirovic then
requested an investigation, evidently believing that
Plaintiff's stated concerns might have been threats.
other unidentified defendants, John Does 1 and 2, conducted
the investigation. They questioned Plaintiff about the
alleged threats against Becirovic, searched Plaintiff's
cell, and seized legal paperwork having to do with an
“ongoing lawsuit against the IDOC, ” deeming that
paperwork “suspicious.” Id. at 10.
to these events, Plaintiff had been housed in an
“incentive tier, ” which apparently made it
easier for him to have a prison job. Id. at 8, 10.
The day after the cell search, and evidently as a result of
the investigation, Plaintiff was transferred out of that
incentive housing unit. Though it appears that Plaintiff has
been able to keep his prison job to date, he “remains
under investigation for alleged, yet unsubstantiated threats,
because of Defendant Becirovic's report and request to
investigation him.” Id. Plaintiff
“stands to lose” 33% of his income if he loses
his job. Id.
brings civil rights claims against Becirovic, John Doe 1 and
John Doe 2, alleging violations of his First, Eighth, and
Fourteenth Amendment rights. Id. at 10-12, 14-15.
Plaintiff also asserts state law claims against not only
those three defendants, but also Defendants McKay, Tewalt,
Dietz, and Christensen-all of whom appear to be supervisory
or managerial officials. Id. at 12-13.
has not alleged sufficient facts to proceed with the
Complaint. The Court will, however, grant Plaintiff 28 days
to amend the Complaint. Any second amended complaint should
take into consideration the following.
Section 1983 Claims
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