Kesling v. Tewalt
| Decision Date | 04 August 2020 |
| Docket Number | Case No. 1:20-cv-00334-BLW |
| Citation | 476 F.Supp.3d 1077 |
| Parties | Shawn Michael KESLING, Plaintiff, v. Josh TEWALT; Jay Christensen; Chad Page ; Bobby Maddox; Chris Johnson; Vernon Greenland; Veronica Doe ; Timothy R. McKay; David Dietz; Dagoberto Martinez; Rhonda Owens ; Kristina Waldram; and Corizon Medical Corporation, Defendants. |
| Court | U.S. District Court — District of Idaho |
Shawn Michael Kesling, Boise, ID, pro se.
INITIAL REVIEW ORDER BY SCREENING JUDGE
The Clerk of Court conditionally filed Plaintiff Shawn Michael Kesling's initial complaint as a result of Plaintiff's status as an inmate and in forma pauperis request. Plaintiff has since filed an Amended Complaint. See Dkt. 6-1.
The Court now reviews the Amended Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file a second amended complaint if Plaintiff intends to proceed.
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).
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 129 S.Ct. 1937 (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.
Plaintiff is a prisoner in the custody of the Idaho Department of Correction ("IDOC"), currently incarcerated at the Idaho State Correctional Center ("ISCC"). Plaintiff's claims involve the IDOC's response to the coronavirus pandemic.
In March 2020, "IDOC created an incident response team to confront the ongoing health crisis as the result of COVID-19." Am. Compl. , Dkt. 6-1, at 9. Defendants Josh Tewalt (Director of the IDOC) and Chad Page (Chief of Prisons) are members of this team. The team developed policies and communicated those policies to ISCC officials, including Defendants Christensen, McKay, Dietz, Greenland, Martinez, Owens and Waldram. COVID-19 policies were also communicated to Corizon, the private entity providing Idaho inmates with medical treatment under contract with the IDOC.
All inmates received a copy of a letter from Director Tewalt, acknowledging the risk of COVID-19. Early policies developed by the team included temperature checks and questionnaires given "to all persons entering ISCC." Id. at 10. Plaintiff complains that the questionnaires "were only as effective as the truthfulness of the answers by those completing them." Id. These early policies did not include requiring individuals to wear face masks.
Plaintiff claims that, at some point in April or May 2020, an ISCC staff member tested positive for COVID-19. The fact that a staff member was infected with COVID-19 was not immediately disclosed to inmates, and no additional steps were taken until June 24, 2020. Id. at 11. On that date, ISCC inmates were informed "of the first positive coronavirus case within the inmate population." Id. at 12. It appears it was not until this announcement that IDOC officials instituted a policy requiring face masks. Id. at 13.
Under direction from ISCC management and the incident response team, from June 26 to June 30, 2020, Corizon conducted mass testing of inmates who were deemed "potentially" or "presumptively" positive for the coronavirus. Id. at 13. It seems that inmates are considered presumptively positive if there is a "reasonable basis to suspect" they may be infected based on their "association with a confirmed case" of COVID-19. Id. Plaintiff's cellmate was one of these presumptively positive inmates and was tested for the virus.
After Plaintiff's cellmate was tested, Defendant Maddox did not isolate him by himself but instead placed him back into his previous cell, where Plaintiff and his cellmate were then quarantined. Id. at 13–14. Plaintiff states that this occurred throughout ISCC, "resulting in the close-quarters mixing of inmates presumed positive for COVID-19 and their corresponding cellmates." Id. at 14. Plaintiff alleges that this practice of returning inmates who were tested, but whose test results are pending, to their cells with their cellmates was a policy decision of IDOC officials. It is unknown whether Plaintiff's cellmate did, in fact, test positive for COVID-19 or, if he did, whether he has since been isolated.
ISCC inmates regularly have access to television. Plaintiff claims that certain channels that broadcast news regarding the pandemic were "disabled" until June 27, 2020, purportedly in an attempt to keep inmates from hearing media reports of COVID-19. The channels were then active for 48 hours but were once again allegedly disabled on June 29. Id. at 12.
Plaintiff claims that the denial of access to television broadcasts was contrary to what Plaintiff describes as IDOC's " ‘You'll hear it from me first’ campaign," in which officials promised inmates they would be kept informed, but then failed to so inform them: "This propaganda machine, among other things, was designed to control the optics and messaging of the circumstances surrounding COVID-19 to Plaintiff and those inmates incarcerated at ISCC under a false shroud of purported transparency." Id. at 15. IDOC officials’ disabling of the television broadcasts allegedly "created a known and intentional barricade between Plaintiff and local media and allowed a false narrative to be disseminated throughout ISCC." Id. at 15–16.
Plaintiff sues various IDOC officials and ISCC staff members, Corizon, and two Corizon employees. Plaintiff asserts that Defendants have violated the First and Eighth Amendments to the United States Constitution.
Plaintiff has not alleged sufficient facts to proceed with the Amended Complaint. The Court will, however, grant Plaintiff 60 days to file a second amended complaint. Any second amended complaint should take into consideration the following.
Plaintiff brings his 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 , 576 U.S. 389, 135 S. Ct. 2466, 2472, 192 L.Ed.2d 416 (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, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
Prison officials and prison medical providers 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, 129 S.Ct. 1937 (). 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"; (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.
To bring a § 1983 claim against a local governmental entity or a private entity performing a government function, a plaintiff must allege that the execution of an official policy or unofficial custom inflicted the injury of which the plaintiff complains, as required by Monell v....
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