UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

NIKOLAI NOVACK,

Plaintiff, Case No. 1:19-cv-00446-BLW

vs. INITIAL REVIEW ORDER BY SCREENING JUDGE WARDEN YORDY IMSI/IDOC,

Defendant.

The Clerk of Court has conditionally filed Plaintiff Nikolai Novack’s Complaint because of his status as a prisoner and request to proceed in forma pauperis. (Dkts. 3, 1.) A “conditional filing” means that Plaintiff must obtain authorization from the Court to proceed. All prisoner and pauper complaints must be screened by the Court to determine whether summary dismissal is appropriate.

& 1915A. The Court must dismiss any claims 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.

(e)(2)(B). After reviewing the Complaint, the Court has determined that Plaintiff will be permitted to proceed but will be required to file a supplement to his Complaint to provide additional facts to support his claims. REVIEW OF COMPLAINT 1. Standard of Law for Screening Complaints

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,

(2009). Plaintiffs are required to state facts, and not just legal theories, in a complaint. See Bell Atlantic Corp. v. Twombly,

(2007), and Ashcroft v. Iqbal,

(2009). In Iqbal, the Court made clear that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

. In

other words, Federal Rule of Civil Procedure 8 “demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.”

(internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” the complaint has not stated a claim for relief that is plausible on its face.

(internal quotation marks omitted).

Plaintiff brings his claims under

, the civil rights statute. To state a claim under § 1983, 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,

(9th Cir. 1991). The treatment a prisoner receives in prison and the conditions under which the

prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See Farmer v. Brennan,

(1994); Johnson v. Lewis,

(9th Cir. 2000). The Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble,

(1976). While conditions of confinement may be

harsh and restrictive without being a violation of the Eighth Amendment, they cross the line of acceptability when they (1) involve “the wanton and unnecessary infliction of pain,” (2) are “grossly disproportionate to the severity of the crime warranting imprisonment,” (3) result “in unquestioned and serious deprivation of basic human needs, or (4) deny an inmate “the minimal civilized measure of life’s necessities.” Rhodes v.

Chapman,

(1981). Where conditions of confinement are challenged, a plaintiff must make two showings. First, the plaintiff must make an “objective” showing that the deprivation was “sufficiently serious” to form the basis for an Eighth Amendment violation. Johnson v. Lewis,

.

Second, the plaintiff must make a “subjective” showing that the prison official acted “with a sufficiently culpable state of mind.”

To establish an official’s deliberate indifference, an inmate must show that (1) the officer was aware of the risk to the prisoner's health or safety, and (2) the officer deliberately disregarded that risk. Farmer v. Brennan,

. To rebut the subjective inquiry, prison officials may present evidence that they reasonably responded to the risk.

at 844–45. Mere negligence is not

sufficient to establish deliberate indifference; rather, the official’s conduct must have been wanton.

. Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care and personal safety. See Farmer v. Brennan,

; Keenan v. Hall,

(9th Cir. 1996); Hoptowit v. Ray,

(9th Cir. 1982). “The circumstances, nature, and duration of a deprivation of these necessities must be considered in determining whether a constitutional violation has occurred.” Johnson v. Lewis,

. For example, the “‘more basic the need the shorter the time it can be withheld.’”

(quoting Hoptowit,

). Nonetheless, temporary unconstitutional conditions of confinement do

not rise to the level of constitutional violations. See Anderson v. County of Kern,

(9th Cir. 1995.) The First Amendment Free Exercise Clause protects the right to believe in a religion; it does not absolutely protect all conduct associated with a religion. Cantwell v. Connecticut,

(1940). Inmates clearly retain their free exercise of religion

rights in prison. O’Lone v. Estate of Shabazz,

(1987). However, challenges to prison restrictions that are alleged “to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.” Jones v. North Carolina Prisoners’ Labor Union,

(1977) (citation omitted).

The courts must balance prisoners’ First Amendment rights against the goals of the correctional facility. Bell v. Wolfish,

(1979). Particularly, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley,

(1987).

1. Factual Allegations Plaintiff alleges that he has been kept in the C-Block housing unit at the Idaho Maximum Security Institution (IMSI) with disruptive inmates for the past six months, and he would like to be transferred to a different housing assignment to avoid the disruption. He further alleges that he has not been able to go to church on Sunday in six

months. He asserts that these conditions are unconstitutional. He states that he has exhausted his administrative remedies through the prison grievance system. Because he take the medication Haldol, he asserts that he has difficulty concentrating and writing. Hence, the Complaint is extremely brief.

2. Discussion Liberally construed, Plaintiff’s Complaint states a cause of action for a First Amendment free exercise of religion claim with his allegations that prison officials have

not permitted him to attend church for six months, despite his requests. As for his allegations that his living conditions in C-Block are so disruptive that they constitute cruel and unusual punishment, the Court will liberally construe the claim and permit Plaintiff to proceed to the extent that he provides additional factual details in a

supplement to the Complaint. Within 30 days after entry of this Order, Plaintiff shall supplement his Complaint with additional facts showing why living conditions in C-Block amount to cruel and unusual punishment and facts regarding denial of his request to attend church services over the past six months. Defendant shall respond to the allegations in the Complaint and

supplement. The judge to whom this case will be assigned may or may not further screen Plaintiff’s claims during the course of this action. See

(e)(2)(B). 3. Conclusion Plaintiff may proceed as outlined above. This Order does not guarantee that any of Plaintiff’s claims will be successful. Rather, it merely finds that Plaintiff’s claims are

plausible—meaning that these claims will not be summarily dismissed at this time but may be dismissed upon further screening by the Court or a motion by Defendant. This Order is not intended to be a final or a comprehensive analysis of Plaintiff’s claims. ORDER IT IS ORDERED:

1. Plaintiff’s Request for Appointment of Counsel (contained in the Complaint) is DENIED without prejudice. The Court will reconsider appointment of counsel after it has had opportunity to review Defendant’s response. 2. Plaintiff may proceed on the First and Eighth Amendment claims against Defendant Keith Yordy. 3. Plaintiff shall file a supplement with additional facts in support of his

claims within thirty (30) days after entry of this Order. 4. Defendant will be allowed to waive service of summons by executing, or having counsel execute, the Waiver of Service of Summons as provided by Fed. R. Civ. P. 4(d) and returning it to the Court within 30 days. If Defendant chooses to return the Waiver of Service of Summons, the answer

or pre-answer motion (responding to the Complaint and the supplement) will be due in accordance with Rule 12(a)(1)(A)(ii). Accordingly, the Clerk of Court will forward a copy of the Complaint (Dkt. 3), a copy of this Order, and a Waiver of Service of Summons to the following counsel: Mark Kubinski, Deputy Attorney General for the State of Idaho,

Idaho Department of Corrections, 1299 North Orchard, Ste. 110, Boise, Idaho 83706. 5. The parties must follow the deadlines and guidelines in the Standard Disclosure and Discovery Order for Pro Se Prisoner Civil Rights Cases, issued with this Order.

6. Any further amended pleadings beyond the supplement must be submitted, along with a motion to amend, within 150 days after entry of this Order. 7. Dispositive motions must be filed no later than 300 days after entry of this Order. 8. Each party must ensure that all documents filed with the Court are

simultaneously served upon the opposing party (through counsel if the party has counsel) by first-class mail or via the CM/ECF system, pursuant to Federal Rule of Civil Procedure 5. Each party must sign and attach a proper mailing certificate to each document filed with the court, showing the manner of service, date of service, address of

service, and name of person upon whom service was made. 9. The Court will not consider ex parte requests unless a motion may be heard ex parte according to the rules and the motion is clearly identified as requesting an ex parte order, pursuant to Local Rule of Civil Practice before the United States District Court for the District

of Idaho 7.2. (“Ex parte” means that a party has provided a document to the court, but that the party did not provide a copy of the document to the other party to the litigation.) 10. All Court filings requesting relief or requesting that the Court make a ruling or take an action of any kind must be in the form of a

pleading or motion, with an appropriate caption designating the name of the pleading or motion, served on all parties to the litigation, pursuant to Federal Rule of Civil Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United States District Court for the District of Idaho 5.1 and 7.1. The Court will not consider requests made in the form of letters.

11. No party may have more than three pending motions before the Court at one time, and no party may file a motion on a particular subject matter if that party has another motion on the same subject matter currently pending before the Court. Motions submitted in violation of this Order may be stricken, summarily denied, or

returned to the moving party unfiled. 12. Plaintiff must notify the Court immediately if Plaintiff’s address changes. Failure to do so may be cause for dismissal of this case without further notice. 13. The Court will review the Pursuant to General Order 324, this action

is hereby returned to the Clerk of Court for random civil case assignment to a presiding judge, on the proportionate basis previously determined by the District Judges, having given due consideration to the existing caseload. SF DATED: January 6, 2020

Be “i Ly B. Lynn Winmill LRICT OSS US. District Court Judge

INITIAL REVIEW ORDER BY SCREENING JUDGE - 10