UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO RONALD G. COLEMAN, Case No. 1:21-cv-00094-DCN Plaintiff, INITIAL REVIEW ORDER vs. BY SCREENING JUDGE

MEDICAL PROVIDER ROGERS and DEFENDANT BREWER,

Defendants.

The Complaint of Plaintiff Ronald G. Coleman was conditionally filed by the Clerk of Court due to his status as a prisoner and pauper. Dkts. 3, 1. A “conditional filing” means that Plaintiff must obtain authorization from the Court to proceed. After reviewing the Complaint, the Court has determined that Plaintiff may proceed in part. REVIEW OF COMPLAINT 1. Standard of Review

The Court must review prisoner complaints seeking relief against government entities, officers, or employees to determine whether summary dismissal is appropriate.

. The Court must dismiss a complaint or any portion thereof that states a claim that is frivolous or malicious, that fails to state a claim upon which relief can be granted, or that seeks monetary relief from a defendant with immunity.

(e)(2)(B). A complaint should be dismissed under Rule 8 of the Federal Rules of Civil Procedure if the factual assertions, 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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Although Rule 8 “does not require detailed factual allegations, ... it 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 claims under

, the civil rights statute. To state a plausible 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). For Plaintiff’s purposes,

is an implementing statute that makes it possible to

bring a cause of action under the Amendments of the United States Constitution. Government 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,

(9th Cir. 1989); see also Iqbal,

(“[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,

. 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,

(9th Cir. 2011) (quoting Hansen v. Black,

(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”; (2) “knowingly refus[ed] 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) failed to act or improperly acted in the training, supervision, or control of his subordinates”; (4) “acquiesc[ed] in the constitutional deprivation”; or (5) engag[ed] in “conduct that showed a reckless or callous indifference

to the rights of others.” Id. at 1205-09. The Eighth Amendment to the United States Constitution protects prisoners against cruel and unusual punishment. To state a claim under the Eighth Amendment, Plaintiff must state facts showing that he is “incarcerated under conditions posing a substantial risk of serious harm,” or that he has been deprived of “the minimal civilized measure of life’s

necessities” as a result of Defendants’ actions—which is analyzed under an objective standard. Farmer v. Brennan,

(1994) (internal quotation marks omitted). Plaintiff must also allege facts showing that Defendants were deliberately indifferent to his needs—analyzed under a subjective standard. As to the objective standard, the Supreme Court has explained that, “[b]ecause

society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’” Hudson v. McMillian,

(1992). The United States Court of Appeals for 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,

(9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller,

(9th Cir. 1997). As to the subjective factor, to violate the Eighth Amendment, a prison official must act in a manner that amounts to deliberate indifference, which is “more than ordinary lack of due care for the prisoner’s interests or safety,” but “something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Farmer,

. Stated another way, deliberate indifference exists when an “official knows of and [recklessly] disregards an excessive risk to inmate health or safety,” which means that an official “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.”

. Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. See Sanchez v. Vild,

(9th Cir. 1989). Medical

negligence or malpractice alone will not support a claim for relief under the Eighth Amendment. Broughton v. Cutter Lab,

(9th Cir. 1980). Rather, a constitutional tort requires the plaintiff show subjective deliberate indifference by bringing forward facts demonstrating that the defendant acted deliberately, intentionally, or so recklessly that the conduct can be equated with a desire to inflict harm. See Farmer,

-38. Likewise, gross negligence and ordinary negligence are not actionable under § 1983, because such actions are not an abuse of governmental power, but rather a “failure

to measure up to the conduct of a reasonable person.” Daniels v. Williams,

(1986). 2. Factual Allegations and Discussion

Plaintiff alleges that he suffered a knee injury while participating in recreation in July of 2019. He sought medical care. Defendant Rogers decided to remove excess fluid from the knee. Plaintiff asserts that Rogers did so without using any anesthesia and without re-disinfecting the knee between Rogers’ intermittent stopping and restarting work on the knee. Plaintiff’s knee became infected. Plaintiff returned to the medical unit seeking help, but the medical provider on duty gave him ice, told him to take Tylenol, and sent him back to his cell. The next day, Plaintiff returned to the medical unit with the same symptoms,

and the medical provider on duty refused to do anything to help him. Plaintiff “adamantly refused to accept this response,” and Defendant Brewer came in and yelled at him, causing him to leave the medical unit without treatment. Over a period of seven days, Plaintiff returned to the medical unit to seek care, but he was refused any treatment. His infection turned serious, and he had to be transported to

the hospital, where he was treated for sepsis involving his heart and other body systems. He asserts that he has had to suffer through 20 or more surgeries to correct the condition caused by the medical providers’ lack of care. He had to have knee replacement surgery because the resulting septic arthritis destroyed his knee joint. Plaintiff may proceed on his Eighth Amendment claims against Defendant Brewer, who allegedly had notice of but did nothing to treat Plaintiff’s infected knee. At this time, Plaintiff may not proceed against Defendant Rogers, because he has not provided sufficient

allegations to show that Rogers’ initial treatment of Plaintiff’s knee injury was anything more than negligent (if that). If Plaintiff has additional allegations showing that Rogers had notice of and refused to treat the continuing infection, Plaintiff may file an amended complaint. After discovery, Plaintiff may decide to amend his complaint if he can show that other medical or prison officials knew of his condition and failed to take steps to

remedy it.1 A deadline for amendment of the Complaint is set forth below. 3. Conclusion

Plaintiff may proceed as outlined above against Defendant Brewer. This Order does not guarantee that any of Plaintiff’s claims will be successful; it merely finds that one or more is colorable, meaning that the claims will not be summarily dismissed at this stage. This Order is not intended to be a final or a comprehensive analysis of Plaintiff’s claims, but it is only a determination that one or more of Plaintiff’s claims is plausible and should proceed to the next stage of litigation. Defendant may file a motion for dismissal on any basis other than failure to state a

1 Any amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely upon or incorporate by reference prior pleadings. 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.,

(9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as non-existent.”), overruled in part on other grounds by Lacey v. Maricopa County,

, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc.,

(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). claim. Because prisoner filings must be afforded a liberal construction, prison officials often possess the evidence prisoners need to support their claims, and many defenses are supported by incarceration records, an early motion for summary judgment is often the

more appropriate vehicle than a motion to dismiss for asserting defenses of failure to exhaust administrative remedies or entitlement to qualified immunity. In such instances, the parties will be required to exchange limited information and documents directly relevant to the defense at issue. ORDER

IT IS ORDERED: 1. Plaintiff may proceed on the following claims: Eighth Amendment claims against Defendant Medical Provider Brewer, who may 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 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:

Kevin West and Dylan Eaton, Parsons Behle & Latimer, 800 W. Main Street, Suite 1300, Boise, Idaho, 83702, on behalf of Defendant Brewer. 2. Claims against Medical Provider Rogers are DISMISSED without prejudice, and he is TERMINATED as a party to this action. If Plaintiff later discovers facts sufficient to support a claim that has been dismissed, Plaintiff may move to amend the complaint to re-assert such claims, as well as any claims

against other medical providers who allegedly violated his rights by refusing to treat his serious medical problems.2 3. Should any entity determine that the individuals for whom counsel for the entity was served with a waiver are not, in fact, its employees or former employees, or that its attorney will not be appearing for the entity or for

particular former employees, it should file a notice within the CM/ECF system, with a copy mailed to Plaintiff, indicating which individuals for whom service will not be waived. 4. If Plaintiff receives a notice from Defendant indicating that service will not be waived for an entity or certain individuals, Plaintiff will have an additional

90 days from the date of such notice to file a notice of physical service addresses of the Defendants at issue, or claims against them will be dismissed without prejudice without further notice. 5. The parties must follow the deadlines and guidelines in the Standard

2 Any amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely upon or incorporate by reference prior pleadings. 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.,

(9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as non-existent.”), overruled in part on other grounds by Lacey v. Maricopa County,

, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc.,

(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). Disclosure and Discovery Order for Pro Se Prisoner Civil Rights Cases, issued with this Order. 6. Any amended pleadings 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. Plaintiff's Motion for Appointment of Counsel (contained in the Complaint) is DENIED without prejudice to him refiling it with medical and mental health records showing the nature and extent of his disabilities. 14. 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.

<a DATED: June 25, 2021

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SUCCESSIVE REVIEW ORDER - 10