Bonning v. Bartlett

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

AMY ROSE BONNING, Case No. 1:21-cv-00165-BLW Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE ADA COUNTY SHERIFF STEPHEN BARTLETT; GOVERNOR BRAD LITTLE; JUDGE STEVEN HIPPLER; and IDAHO DEPARTMENT OF CENTRAL DISTRICT HEALTH, Defendants.

The Clerk of Court conditionally filed Plaintiff Amy Rose Bonning’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the 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 an 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). “[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). And, a court is not required to comb through a plaintiff’s exhibits or other filings to determine if the complaint states a plausible claim.1

1 Therefore, in its review under §§ 1915 and 1915A, the Court has reviewed only the Complaint found at Docket No. 3, not the affidavit or the non-exhaustion-related exhibits attached to the Complaint. See also General Order 342, In Re: Procedural Rules for Prisoner Civil Case Filings and for Prisoner E-Filing Program, § A(1)(b)-(c) (“No exhibits may be attached to a complaint or any type of amended complaint, except those showing exhaustion of administrative remedies[,] [and] [n]o affidavits may be attached to a complaint or any type of amended complaint.”).

3. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction (“IDOC”), currently incarcerated at the East Boise Re-Entry Center. At the time of the events described in the Complaint, Plaintiff was being held in the Ada County Jail.

Plaintiff claims that she was subjected to unconstitutional conditions of confinement at the jail. The Complaint asserts that Defendants Sheriff Bartlett, Governor Brad Little, Fourth District Judge Stephen J. Hippler, and the Idaho Department of Central District Health did not adequately respond to, and did not adequately protect inmates from, the COVID-19 pandemic.

Plaintiff alleges that, beginning in June 2020, Defendants (1) “recklessly endangered the Plaintiff and hundreds of other” inmates by “forcing [them] to be infected & exposed” to the virus; (2) “turned a blind eye to the outrageous amounts of covid infections” by refusing to address unidentified institutional dangers; (3) “forcing [Plaintiff] to be overly exposed” to the disease by requiring her to stay in jail instead of permitting bail or bond; or (4) “manipulated polic[ies]” that allowed “rooms full of hundreds of inmate people (humans) to infect each other.” Compl., Dkt. 3, at 2, 4, 6, 8.

Plaintiff appears to allege that Defendants engaged in this unconstitutional behavior by permitting jail workers to leave the jail and go into the community, where they could be infected, and then come back to work, exposing inmates to the virus. Id. at 2. Plaintiff also asserts that, after the issuance of stay-at-home orders, the state was reopened prematurely. Id. at 4.

Plaintiff asserts her claims under (1) 42 U.S.C. § 1983, the federal civil rights statute, (2) the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.; and (3) Idaho state law.

4. 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. Immunities from Suit Plaintiff’s claims against the Idaho Department of Central District Health are barred by the Eleventh Amendment. That amendment prohibits a federal court from entertaining a suit brought against a state or state entity, absent a waiver of sovereign immunity. Hans v. Louisiana, 134 U.S. 1, 16-18 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Neither § 1983 nor RICO constitutes such a waiver.

Quern v. Jordan, 440 U.S. 332, 342–44 (1979); Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988). Finally, only a “person” may be sued pursuant to 42 U.S.C. § 1983, and states and state entities are not considered “persons” under that statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, Plaintiff should omit the Idaho Department of Central District Health from any amended complaint.

Plaintiff’s claims against Judge Hippler are barred because the judge is entitled to absolute judicial immunity. Under this doctrine, a judge is not liable for monetary damages for acts performed in the exercise of his or her judicial functions. Stump v. Sparkman, 435 U.S. 349, 355–56 (1978). Judicial officers are also entitled to absolute immunity from claims for injunctive relief “unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983.

Absolute immunity for judicial officers “is justified and defined by the functions it protects and serves, not by the person to whom it attaches.” Forrester v. White, 484 U.S. 219, 227 (1988). To determine whether an act is judicial in nature so that absolute immunity would apply, a court looks to “the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump, 435 U.S. at 362.

If a judge was acting in a judicial capacity, absolute immunity applies “however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (internal citations omitted). “[J]udicial immunity is not overcome by allegations of bad faith or malice.” Mireles v. Waco, 502 U.S. 9, 11 (1991).

There are two circumstances in which absolute judicial immunity does not apply.

First, a judge is not immune from liability for performing an act that is not “judicial” in nature. Stump, 435 U.S. at 360. For example, a judge who leaves the bench and uses physical force to evict a person from the courtroom is engaged in a nonjudicial act and, thus, is not immune from liability. Gregory v. Thompson, 500 F.2d 59, 63 (9th Cir. 1974).

But a judge who orders officers to forcibly seize a person is immune, because a “judge’s direction to court officers to bring a person who is in the courthouse before him is a function normally performed by a judge.” Mireles, 502 U.S. at 12.

Second, absolute immunity does not apply when a judge acts “in the clear absence of all jurisdiction.” Stump, 435 U.S. at 356 (internal citations omitted). The scope of a judge’s jurisdiction “must be construed broadly…. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his [or her] authority.” Id. The question of whether a judge acted in the clear absence of jurisdiction is distinct from the question of whether a judge acted in excess of authority. Even if a judge exceeds his or her authority in issuing a ruling, that judge is immune so long as the case is properly before the court. Mireles, 502 U.S. at 13.

In reviewing an allegation that a judge acted in the clear absence of all jurisdiction, the Court considers whether the judge was acting beyond the scope of the subject matter jurisdiction of the court in which she presided. See Stump, 435 U.S. at 356–57; Ashelman, 793 F.2d at 1076. The difference between acting in the absence of jurisdiction (no immunity) and acting in excess of authority (immunity) is made clear in the following example: [I]f a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

Stump, 435 U.S. at 357 n.7 (emphasis added).

In Idaho, the state district courts have original jurisdiction over all cases and proceedings in law and in equity. Idaho Code § 1-705; Idaho Const. art. V, § 20.

Therefore, Judge Hippler had subject matter jurisdiction over Plaintiff’s criminal case.

Because the decision to deny bail was made in the exercise of the judicial function, Judge Hippler is immune from Plaintiff’s claims.

B. 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 § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a “failure to measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986).

Governmental 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.

Plaintiff asserts that the conditions at the jail violated the Constitution. Such claims are analyzed differently depending on whether an inmate is a pretrial detainee or a convicted prisoner. It is unclear whether Plaintiff was a detainee or was convicted and sentenced when she was in the Ada County Jail. If Plaintiff files an amended complaint, she must clarify her status at the time her claims arose.

Conditions-of-confinement claims of pretrial detainees are analyzed under the Due Process Clause of the Fourteenth Amendment, which guarantees detainees the right to be free from conditions of confinement that amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). “There is no constitutional infringement, however, if restrictions are ‘but an incident of some other legitimate government purpose.’” Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002) (quoting Bell, 441 U.S. at 535).

“In distinguishing between a permissible restriction and impermissible punishment, [a court must] first examine whether the restriction is based upon an express intent to inflict punishment”; if it is not, then the court must “consider whether punitive intent can be inferred from the nature of the restriction.” Id. This determination depends on “whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether the restriction appears excessive in relation to the alternative purpose assigned to it.” Id. at 1045-46 (internal quotation marks and alterations omitted). “[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’” Bell, 441 U.S. at 539.

Due process conditions-of-confinement claims, including claims of inadequate medical treatment,2 are analyzed using a standard of “objective deliberate indifference.”

Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). Under that standard, a detainee must establish the following elements: (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each particular case.” Id. (internal quotation marks and alteration omitted).

Although the Court uses an objective standard in evaluating conditions-of- confinement claims of pretrial detainees, this standard must not be confused with the objective standard used for evaluating claims of negligence under state law. This is because negligence—the “mere lack of due care” by a governmental official—“does not It is unclear whether Plaintiff specifically challenges as inadequate the medical treatment she received at the jail, or if she is challenging only the jail conditions that gave rise to a risk of contracting COVID-19.

Plaintiff should clarify her claims in any amended complaint. deprive an individual of life, liberty, or property under the Fourteenth Amendment.”

Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc); see also Daniels, 474 U.S. at 332. Therefore, a pretrial detainee complaining of unconstitutional conditions of confinement must “prove more than negligence but less than subjective intent—something akin to reckless disregard.” Castro, 833 F.3d at 1071.

The Eighth Amendment applies to convicted prisoners and does not prohibit punishment in all forms. Rather, it protects against cruel and unusual punishment. To state a plausible claim under the Eighth Amendment, inmates must show that they are “incarcerated under conditions posing a substantial risk of serious harm,” or that they 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).

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 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.

The Eighth Amendment includes the right to adequate medical treatment. Prison officials and prison medical providers can be held liable if their “acts or omissions [were] sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).

“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, differences in judgment as to appropriate medical diagnosis and treatment between an inmate and a prison medical provider—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 v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (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’s allegations do not give rise to a reasonable inference that any Defendant acted with either subjective or objective deliberate indifference for purposes of an Eighth Amendment or due process claim. Plaintiff offers only (1) vague, generalized allegations that Defendants did not adequately protect inmates from the risk of COVID-19, and (2) conclusory statements that Defendants’ actions violated her rights. Such statements are insufficient to satisfy Rule 8. See Iqbal, 556 U.S. at 678–82. Therefore, the Complaint does not state a plausible claim under § 1983.

C. RICO Claims In addition to § 1983 claims, Plaintiff also asserts RICO claims. The RICO statute provides as follows: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. § 1962(c). A finding of liability under § 1962(c) requires “(1) the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 191 (9th Cir. 1987) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). A pattern of racketeering requires proof of two or more predicate acts of racketeering that are related and that are in furtherance of a single criminal scheme. Id. at 193.

A list of racketeering acts upon which a RICO action must be based is set forth in 18 U.S.C. § 1961. Subsection 1961(1)(A) defines a racketeering activity as “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance.” Subsection 1961(1)(B) additionally describes a racketeering activity as any act indictable as a crime under certain provisions of Title 18 of the United States Code. Plaintiff’s allegations do not plausibly suggest that Defendants engaged in the predicate acts of racketeering required for a RICO violation. Rather, Plaintiff alleges only civil rights violations, which—by definition—are not racketeering acts. See Bowen v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997) (holding that civil rights violations “do not fall within the statutory definition of ‘racketeering activity.’”). Therefore, Plaintiff’s RICO claims are implausible.

D. State Law Claims Plaintiff also states that she is asserting state law claims. Compl. at 1. The Court presumes that the Complaint was intended to assert negligence claims.

The elements of a negligence claim under Idaho law are “(1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.” McDevitt v. Sportsman’s Warehouse, Inc., 255 P.3d 1166, 1169 (Idaho 2011). A person breaches a duty when that person acts in a manner in which a reasonable person would not. See Steed v. Grand Teton Council of the Boy Scouts of Am., Inc., 172 P.3d 1123, 1129 (Idaho 2007) (describing the reasonable person standard as a “negligence standard of care”)).

Plaintiff’s negligence claims are implausible for the same reason as her constitutional claims; that is, the Complaint offers nothing more than vague and conclusory allegations. Plaintiff may attempt to remedy this deficiency in an amended complaint.

In any event, because the Complaint fails to state a federal claim upon which relief may be granted, the Court would decline to exercise supplemental jurisdiction over Plaintiff’s state law claims. If Plaintiff is allowed to proceed on a federal claim in an amended complaint, and if the amended complaint states a plausible claim under Idaho law, the Court will reconsider the issue of supplemental jurisdiction.

5. 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. §§ 1915 and 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 federal constitutional provision (or state law 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 regarding prison conditions; (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 non-existent.”), 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 not amend within 60 days, this case may be dismissed without further notice. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if Plaintiff no longer intends to pursue this case.° 2. Plaintiff’s Motion for Appointment of Counsel (Dkt. 8) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint.

3. Plaintiffs “Emergency Motion” (Dkt. 9), which seeks “urgent attention for the claims of deliberate difference [sic] and imminent danger,” is DENIED.

Kee DATED: August 2, 2021 ) Pen Warec lf Me alll? ) Ty Ss apo) B.Ly inmill SRICT Oo! U.S. District Court Judge 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).

INITIAL REVIEW ORDER BY SCREENING JUDGE - 19