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Kesling v. Becirovic

United States District Court, D. Idaho

December 9, 2019

SHAWN M. KESLING, Plaintiff,
v.
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

          David C. Nye Chief U.S. District Court Judge

         The 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.

         1. Screening Requirement

         The 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.

         The 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).

         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, although Rule 8 “does not require detailed factual allegations, ... it 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 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.

         In 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.

         Plaintiff 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.

         Plaintiff 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.

         Within 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.

         Two 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.

         Prior 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.

         Plaintiff 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.

         4. Discussion

         Plaintiff 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.

         A. 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 ยง 1983, because a negligent act by a public official is ...


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