Opinion
1:22-cv-00275-DCN
10-05-2022
FORREST GLENN SHUNN, Plaintiff, v. IDAHO DEPARTMENT OF CORRECTION; WARDEN WESSELER; and SGT. SMYTH, Defendants.
INITIAL REVIEW ORDER BY SCREENING JUDGE
David C. Nye, Chief U.S. District Court Judge.
The Clerk of Court conditionally filed Plaintiff Forrest Glenn Shunn's Complaint as a result of Plaintiff's status as an inmate. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. § 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff intends to proceed.
1. Pleading Standards and Screening Requirement
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). Under modern pleading standards, Rule 8 requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal/Twombly “facial plausibility” standard is met when a complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more than ... unadorned, the-defendant-unlawfully-harmed-me accusation[s].” 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). Bare allegations that amount to a mere restatement of the elements of a cause of action, without adequate factual support, are not enough.
The Prison Litigation Reform Act (“PLRA”) requires that the Court 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 any claims that do not have adequate factual support or are frivolous or malicious. 28 U.S.C. § 1915A.
Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq.
The Court also must dismiss claims that fail to state a claim upon which relief may be granted or that seek monetary relief from a defendant who is immune from such relief. Id. These last two categories-together with claims that fall outside a federal court's narrow grant of jurisdiction-encompass those claims that might, or might not, have factual support but nevertheless are barred by a well-established legal rule.
The Court liberally construes the pleadings to determine whether a case should be dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for the absence of a cognizable legal theory. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (discussing Federal Rule of Civil Procedure 12(b)(6)), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (stating that Rule 12(b)(6) authority to dismiss claims was expanded by the PLRA, giving courts power to dismiss deficient claims, sua sponte, before or after opportunity to amend).
2. Factual Allegations
Plaintiff is a prisoner in the custody of the Idaho Department of Correction (“IDOC”). Plaintiff alleges that, on March 8, 2022, he was found guilty of a Disciplinary Offense Report (“DOR”) for attempted escape. Compl., Dkt. 3, at 2. He claims he was coerced into confessing by a nondefendant officer. Plaintiff does not identify which Defendant presided over the disciplinary hearing. See id. (identifying all three Defendants as being connected to the allegations).
As a result of the DOR, Plaintiff was transferred from a lower-level custody prison to his present facility, Idaho Maximum Security Institution (“IMSI”). Plaintiff was initially placed on suicide watch at IMSI, during which Plaintiff was not provided “wound assessment.” Id. Plaintiff does not otherwise describe the conditions in the suicide watch cell other than to say that he “was placed on suicide watch 3 days naked, security sleep system and was cleared by staff at ISCI.” Id.
Plaintiff also alleges he has not received “medical to [illegible] or hernia surgery, no Covid protection, no mental health help for any past issues,” and that he has unidentified medical issues involving cancer, his foot, and his gut. Id. Plaintiff also complains that he has been called “crazy” by unidentified prison officials.
Plaintiff sues the IDOC, Warden Wesseler, and Sgt. Smyth. See id. at 1. Plaintiff claims that Defendants have violated the First, Eighth, and Fourteenth Amendments, as well as the Health Insurance Portability and Accountability Act (“HIPAA”). Id. at 2. He also claims that prison officials have retaliated against him for “making cops look bad.” Id.
Though Plaintiff also cites the Fourth Amendment, that amendment is not implicated by the allegations in the Complaint.
3. Discussion
Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court will, however, grant Plaintiff 60 days to amend the Complaint. Any amended complaint should take into consideration the following.
A. Standards of Law Governing 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).
States and state entities are not “persons” subject to suit under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, Plaintiff's claims against the IDOC are implausible. Further, even if the IDOC were a “person” for purposes of § 1983, it would be immune from suit in federal court under the Eleventh Amendment. Hans v. Louisiana, 134 U.S. 1, 16-18 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Quern v. Jordan, 440 U.S. 332, 342-44 (1979) (holding that § 1983 does not waive state sovereign immunity); Esquibel v. Idaho, No. 1:11-cv-00606-BLW, 2012 WL 1410105, at *6 (D. Idaho Apr. 23, 2012) (holding that Idaho itself has not waived state sovereign immunity for constitutional claims). Plaintiff should omit the IDOC from any amended complaint.
Prison officials 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 that violated the Constitution, or knowingly refused to terminate a series of such acts, which the supervisor “knew or reasonably should have known would cause others to inflict a constitutional injury”; (2) knowingly failed to act or acted improperly “in the training, supervision, or control of his subordinates”; (3) acquiesced in the constitutional deprivation; or (4) engaged in “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1205-09 (internal quotation marks omitted).
A claim that a supervisor or training official failed to adequately train subordinates ordinarily requires that, “in light of the duties assigned to specific officers or employees[,] the need for more or different training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the [supervisor or training official] can reasonably be said to have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). That is, to maintain a failure-to-train claim, a plaintiff must allege facts showing a “pattern of violations” that amounts to deliberate indifference. Connick v. Thompson, 563 U.S. 51, 72 (2011).
Likewise, “a failure to supervise that is sufficiently inadequate may amount to deliberate indifference” that supports a § 1983 claim, but there generally must be a pattern of violations sufficient to render the need for further supervision obvious. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks omitted). That is, if a supervisory or training official had “knowledge of the unconstitutional conditions” through such a pattern of violations-including knowledge of the “culpable actions of his subordinates”-yet failed to act to remedy those conditions, that official can be said to have acquiesced “in the unconstitutional conduct of his subordinates” such that a causal connection between the supervisor and the constitutional violation is plausible. Starr, 652 F.3d at 1208.
A plaintiff cannot simply restate these standards of law in a complaint. Instead, a plaintiff must provide specific facts supporting the elements of each claim and must allege facts showing a causal link between each defendant and Plaintiff's injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679.
B. The Complaint Fails to State a Plausible Eighth Amendment Claim
The Eighth Amendment to the United States Constitution protects prisoners against cruel and unusual punishment and guarantees the right to minimally adequate conditions of confinement. “[T]he Constitution does not mandate comfortable prisons, and prisons ... cannot be free of discomfort.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). However, INITIAL REVIEW ORDER BY SCREENING JUDGE though prison conditions may be restrictive-even harsh-without violating the Eighth Amendment, prison officials are required to provide prisoners with basic necessities, such as adequate food, clothing, shelter, sanitation, medical care, and personal safety. Id. at 347; Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
To state a claim under the Eighth Amendment, a prisoner must show that he is (or was) “incarcerated under conditions posing a substantial risk of serious harm,” or that he has have been deprived of “the minimal civilized measure of life's necessities” as a result of the defendants' actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). An Eighth Amendment claim requires the plaintiff to satisfy both (1) an objective standard, “that the deprivation was serious enough to constitute cruel and unusual punishment,” and (2) a subjective standard, that the defendant acted with “deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).
As for the objective prong of the analysis, “[n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Rather, the deprivation alleged must be objectively sufficiently harmful or, in other words, sufficiently “grave” or “serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991); see Whitley, 475 U.S. at 319 (“After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”) (internal quotation marks and alteration omitted).
A temporary denial of a basic necessity does not violate the Eighth Amendment. Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010). Therefore, a court considering an Eighth Amendment claim must consider the length of time a prisoner is subjected to the challenged conditions of confinement. Hutto v. Finney, 437 U.S. 678, 687 (1978) (stating that conditions of confinement “might be tolerable for a few days [but] intolerably cruel for weeks or months”); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (stating that, in determining whether deprivation of “adequate shelter, food, clothing, sanitation, medical care, [or] personal safety” violates the Eighth Amendment, a court considers the “circumstances, nature, and duration” of that deprivation).
With respect to the subjective prong of an Eighth Amendment violation, “deliberate indifference entails something more than mere negligence, [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835. “To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety.” Whitley, 475 U.S. at 319.
To exhibit deliberate indifference, a defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Moreover, even prison officials who did actually know of a substantial risk to inmate health or safety will not be liable under § 1983 “if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
i. Suicide Watch Claims
Plaintiff appears to challenge the conditions to which he was subjected while he was on suicide watch. Compl. at 2. Suicide is obviously a very serious issue and, unfortunately, it is a prevalent one in prisons. Mental health providers and prison officials cannot- indeed, they must not-take lightly an inmate's risk of suicide. Rather than denying a basic human need, suicide watch is a generally accepted means to protect inmates who are vulnerable to self-harm. Cf. Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1076 (9th Cir. 2013) (discussing potential for Eighth Amendment liability based on the failure to protect mentally ill inmate from risk of suicide).
Plaintiff states that he was naked and subjected to a “security sleep system”-which the Court assumes involves keeping a cell illuminated so inmates on suicide watch can be observed-for only three days. Such a brief period of such treatment simply does not qualify as an objectively grave or sufficiently harmful condition of confinement. See Wilson, 501 U.S. at 298; Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010) (“Although exercise is one of the basic human necessities protected by the Eighth Amendment, a temporary denial of outdoor exercise with no medical effects is not a substantial deprivation.”). Further, there is nothing in the Complaint to suggest that any prison official acted with deliberate indifference in concluding that Plaintiff faced a risk of suicide. The apparent disagreement between IMSI officials and ISCI officials as to Plaintiff's risk of suicide is not enough.
For these reasons, Plaintiff has failed to state a plausible claim based on suicide watch conditions.
ii. Medical Treatment Claims
Plaintiff also appears to assert claims of inadequate mental and mental health treatment. Regarding the objective standard for prison medical care claims, “society does not expect that prisoners will have unqualified access to health care.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Therefore, “deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.'” Id. The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner's condition [that] could result in further significant injury or the unnecessary and wanton infliction of pain[;] ... [t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain ....McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (internal citations omitted), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
With respect to the subjective prong, deliberate indifference in the medical or mental health context can be “manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05 (footnotes omitted). Medical malpractice or negligence does not support a cause of action under the Eighth Amendment, Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per curiam), and a delay in medical treatment does not violate the Eighth Amendment unless that delay causes further harm, McGuckin, 974 F.2d at 1060. Additionally, there is no constitutional right to an outside medical provider of one's own choice. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986) (“A prison inmate has no independent constitutional right to outside medical care additional and supplemental to the medical care provided by the prison staff within the institution.”).
If medical personnel have been “consistently responsive to [the inmate's] medical needs,” and the plaintiff has not shown that the medical personnel had “subjective knowledge and conscious disregard of a substantial risk of serious injury,” there has been no Eighth Amendment violation. Toguchi, 391 F.3d at 1061. “There is not one proper way to practice medicine in a prison, but rather a range of acceptable courses based on prevailing standards in the field.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (internal quotation marks omitted). Accordingly, mere differences in judgment as to appropriate medical diagnosis and treatment between an inmate and prison medical providers-or, for that matter, between medical providers-are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
“[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,' and was chosen ‘in conscious disregard of an excessive risk' to the prisoner's health.” Toguchi, 391 F.3d at 1058 (alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). Stated another way, a plaintiff must prove that medical providers chose one treatment over the plaintiff's preferred treatment “even though they knew [the plaintiff's preferred treatment] to be medically necessary based on [the plaintiff's] records and prevailing medical standards.” Norsworthy v. Beard, 87 F.Supp.3d 1104, 1117 (N.D. Cal. 2015). To violate the Eighth Amendment, the choice of treatment must have been “so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.” Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998); see also Lamb v. Norwood, 895 F.3d 756, 760 (10th Cir. 2018) (“[P]rison officials do not act with deliberate indifference when they provide medical treatment even if it is subpar or different from what the inmate wants.”).
Plaintiff states that he was not provided “wound assessment” for the three days he was on suicide watch, that he did not receive adequate care for his hernia, cancer, intestinal issues, or mental health, and that he was not adequately protected from COVID-19. These allegations are far too vague and generalized to state a plausible claim that any Defendant acted with deliberate indifference to a serious medical need. Plaintiff does not provide any details at all about his medical or mental health conditions, nor has he identified any particular Defendant who took any particular action with respect to Plaintiff's treatment. Plaintiff may attempt to remedy these deficiencies in an amended complaint.
iii. Claims of Humiliation
Plaintiff also complains that he has been humiliated because unidentified prison officials have called him crazy. However, verbal harassment or abuse is not sufficient to state a constitutional deprivation under § 1983. See Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987) (allegations that correctional counselor told plaintiff that he would transfer him to a higher custody status unit if he tried to go to the law library and that he would be sorry if he filed a class action suit were not actionable under § 1983); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (allegations that defendant “personally informed plaintiff that if he never cut his hair and shaved his beard that he would lose what class he had and would have a bad time at Wrightsville” and that defendant “verbally abused and threatened him for filing grievances” did not constitute a constitutional violation); McFadden v. Lucas, 713 F.2d 143, 147 (5th Cir. 1983) (“While twenty-two officers armed with sticks and threatening demeanor may arguably be excessive, we must, in the absence of physical abuse, concur with the lower court's dismissal. The alleged conduct, absent more, cannot be said to rise to the level of conduct which ‘shocks the conscience'” (citation omitted)). Therefore, the Complaint fails to state a plausible Eighth Amendment claim based on Plaintiff's humiliation.
C. The Complaint Fails to State a Plausible Fourteenth Amendment Claim
Plaintiff contends that, as a result of being found guilty of the attempted escape DOR, he was unconstitutionally reclassified to a higher custody level and transferred to a higher security facility.
The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person cannot obtain relief on a due process claim unless he demonstrates that he was deprived of one of these protected interests. Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989). Because prisoners' liberty is necessarily circumscribed as a result of conviction, prisoners have a liberty interest in freedom from restraint only if a change occurs in confinement that imposes an “atypical and significant hardship ... in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
An inmate has no federal constitutional right or liberty interest in maintaining a particular security classification in prison. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987); see also Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (stating that due process protections are not required with respect to decisions about “prisoner classification and eligibility for rehabilitative programs”) (Fifth Amendment Due Process Clause). Nor does an inmate have a right to be housed at a particular facility. Meachum v. Fano, 427 U.S. 215, 218 (1976) (“Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections ....”); McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates is at the core of prison administrators' expertise.”). Idaho law, however, may create a liberty interest with respect to a prisoner's classification as “maximum security” or “close custody.” See Wolfe v. State, 759 P.2d 950, 951 (Idaho Ct. App. 1988) (“Our Supreme Court already has held that an inmate is entitled to a hearing with minimal procedural safeguards before being placed in maximum security confinement for administrative or for disciplinary reasons. Today, for the sake of discussion, we will assume-without deciding-that a similar right to minimal due process exists for classification to close custody.”) (internal citations and quotation marks omitted).
If an inmate shows that he had a liberty interest in avoiding a higher security or custody classification, then the inmate must also show that he did not receive minimal due process protections. The determination on what type of process that is due to an inmate must be made on a case-by-case basis. Wolff v. McDonnell, 418 U.S. 539, 560 (1974) (“Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.”) (internal quotation marks and alteration omitted).
The “essence of due process” is notice and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 348 (1976). Due process is a flexible concept and calls for such procedural protections as the particular situation demands. Id. Three factors inform whether an inmate has received the process to which he was due: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Due process in a prison disciplinary hearing is satisfied if the inmate receives notice of (1) the charges, (2) the evidence against him, and (3) the reasons for the disciplinary action. Wolff, 418 U.S. at 563-66. An inmate has a right “to call witnesses and present documentary evidence in his defense,” but only “when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Id. at 566.
In the prison context, “[t]he State's first obligation must be to ensure the safety of guards and prison personnel, the public, and the prisoners themselves.” Wilkinson v. Austin, 545 U.S. 209, 227 (2005). Therefore, when reviewing a prison's procedures with respect to level-of-custody or restrictive housing determinations, the third Mathews factor-the government's interest-is “a dominant consideration.” Id.
Plaintiff's Complaint does not support a reasonable inference that Plaintiff was denied due process before he was reclassified and transferred to IMSI. Plaintiff acknowledges that he was given a hearing on his DOR and does not allege that he lacked notice or was denied the opportunity to present evidence. Though Plaintiff believes the hearing officer was not paying attention to the evidence-specifically, to a video of Plaintiff's interrogation-this is insufficient to plausibly allege a denial of due process. Therefore, Plaintiff's claims that Defendants improperly reclassified his custody status and transferred him to IMSI are implausible.
D. The Complaint Does Not State a Plausible Retaliation Claim
A First Amendment retaliation claim must allege the following: “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, ... that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Although a “chilling effect on First Amendment rights” is enough to state an injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of arbitrary retaliation” are insufficient to state a retaliation claim, Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985). “A prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam); see also Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”).
Plaintiff alleges that prison officials retaliated against him “for making cops look bad.” Compl. at 2. However, the Court has found no authority for the proposition that generally “making cops look bad” is constitutionally protected activity. Nor has Plaintiff offered anything more than a bare accusation of a retaliatory motive. Therefore, Plaintiff's retaliation claims are implausible.
E. Plaintiff's HIPAA Claims Are Implausible
HIPAA does not provide a private right of action. Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (affirming dismissal of HIPAA claim, asserted in a § 1983 complaint, based on the lack of a private right of action). Therefore, Plaintiff's HIPAA claims are implausible and should be omitted from any amended complaint.
F. State Law Claims
Though Plaintiff has checked a box on his Complaint form indicating that he intends to pursue state law claims, he has not actually identified any such claims. Compl. at 1-2. However, because the Complaint fails to state a federal claim upon which relief may be granted, the Court would decline to exercise supplemental jurisdiction over any state law claims in any event. See 28 U.S.C. § 1367(c). If Plaintiff is allowed to proceed on a federal claim in an amended complaint-and if the amended complaint identifies and presents a plausible state law claim-the Court will reconsider the issue of supplemental jurisdiction. 4. Standards for Amended Complaint
If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection between each defendant's actions and the claimed deprivation. Taylor, 880 F.2d at 1045; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss” or to survive screening under 28 U.S.C. § 1915A. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” (internal quotation marks and alteration omitted)).
Rather, for each cause of action against each defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of Plaintiff's constitutional rights; (2) facts showing the defendant is a state actor (such as state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the defendant allegedly took place; (4) the specific conduct or action Plaintiff alleges is unconstitutional; (5) the particular constitutional or statutory provision Plaintiff alleges has been violated; (6) facts alleging that the elements of the violation are met-for example, Plaintiff must allege facts satisfying the elements of an Eighth Amendment or due process claim; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant.
Further, any amended complaint must contain all of Plaintiff's allegations in a single pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as nonexistent.”), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint).
Plaintiff must set forth each different factual allegation in a separate numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as an “Amended Complaint.” Plaintiff's name and address should be clearly printed at the top left corner of the first page of each document filed with the Court.
If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to Review the Amended Complaint.” If Plaintiff does not amend within 60 days, or if the amendment does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”).
ORDER
IT IS ORDERED:
1. The Complaint fails to state a claim upon which relief may be granted. Plaintiff has 60 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended complaint) a Motion to Review the Amended Complaint. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if Plaintiff no longer intends to pursue this case.
A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for frivolity, for maliciousness, or for failure to state a claim upon which relief may be granted and, therefore, does not count as a “strike” under 28 U.S.C. § 1915(g).
2. If Plaintiff does not file a timely amended complaint, this case may be dismissed with prejudice and without further notice for failure to state a claim upon relief may be granted, failure to prosecute, or failure to comply with a Court order.
3. Because an amended complaint is required for Plaintiff to proceed, Plaintiff's request for appointment of counsel (contained in the Complaint) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint.
4. Plaintiff's Motion to Include Case Law into Complaint (Dkt. 10) is MOOT. Plaintiff may-but is not required to-cite case law in a complaint. Plaintiff may wish to focus his complaint more on the facts of his case, which is what determines whether a complaint states a plausible claim for relief.