Sileoni v. Corizon Correctional Health Services ( 2019 )

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO MAXIMILIANO SILEONI, Plaintiff, Case No. 1:19-cv-00427-BLW vs. INITIAL REVIEW ORDER BY SCREENING JUDGE CORIZON CORRECTIONAL HEALTH SERVICES, GRANT ROBERTS, DR. MIGLIORI, RONA SIEGERT, and JAY CHRISTENSEN, Defendants. The Complaint of Plaintiff Maximiliano Sileoni 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. All prisoner and pauper complaints seeking relief against a government entity or official must be screened by the Court to determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915 & 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. 28 U.S.C. § 1915(e)(2)(B). After reviewing the Complaint, the Court has determined that Plaintiff will be permitted to proceed against all Defendants except Corizon Correctional Health Services. REVIEW OF COMPLAINT 1. Standard of Law 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). A plaintiff is required to state facts, and not just legal theories, in a complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (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.” Id. at 678. In other words, Federal Rule of Civil Procedure 8 “demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Id. (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. Id. (internal quotation marks omitted). To state an Eighth Amendment claim regarding prison medical care, a complaint must contain facts alleging that prison officials’ “acts or omissions [were] sufficiently harmful to evidence deliberate indifference to serious medical needs.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). The Supreme Court has opined 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.’” 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), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Deliberate indifference exists when an official knows of and disregards a serious medical condition or when an official is “aware of facts from which the inference could be drawn that a substantial risk of harm exists,” and actually draws such an inference. Farmer v. Brennan, 511 U.S. 825, 838 (1994). Deliberate indifference 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 v. Gamble, 429 U.S. 97, 104-05 (1976). A complaint alleging that a defendant acted with deliberate indifference requires factual allegations that show “both ‘(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 2. Summary of Allegations Plaintiff is an Idaho Department of Correction (IDOC) prisoner. He asserts that, in 2014, he underwent hernia surgery, and the surgeon used hernia mesh in the procedure. Plaintiff asserts that, since 2016, the hernia mesh has caused him great pain, but Defendants have offered him only pain medication. They refuse to allow him to have a follow-up surgery to remove the mesh, and they refuse to permit him to contact product liability attorneys advertising on television for clients whose surgeries involved the hernia mesh product. Plaintiff asserts that he is so ill from the ill effects of the hernia mesh that he cannot exercise, recreate, work, or prepare his own litigation paperwork. 3. Discussion of Claims Against Corizon To bring a § 1983 claim against 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. Monell v. Dept. of Soc. Serv. of New York, 436 U.S. 658, 694 (1978); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (Monell applicable to private entities performing government functions). That is, “[an entity] can be found liable under § 1983 only where the [entity] itself causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). Under Monell, requisite elements of a § 1983 claim against a municipality or private entity performing a state function are the following: (1) the plaintiff was deprived of a constitutional right; (2) the municipality or entity had a policy or custom; (3) the policy or custom amounted to deliberate indifference to the plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. See Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). All policy-based claims must meet the pleading standards clarified by Bell Atlantic Corp. v. Twomby, 550 U.S. 544 (2007), and Iqbal, supra. That is, mere “formulaic recitation of a cause of action’s elements” is insufficient. See Twombly, 550 U.S. at 555. Plaintiff has provided insufficient allegations to state a claim against Corizon. Without specific factual allegations about (1) what the Corizon policies were; (2) what the Corizon policy makers actually did, and (3) how the policies caused the medical providers to provide inadequate care, Plaintiff has not stated a claim. For example, he must allege facts raising a plausible inference that the treatment chosen by the individual medical providers, or a detrimental delay in provision of treatment, was not due to the providers’ own independent decisions regarding how to conservatively treat Plaintiff’s condition, based on their educational training and work experience—because that situation does not equate to deliberate indifference. An official’s erroneous act or omission does not necessarily mean that the entity has a policy encouraging or requiring that act or omission. Plaintiff may amend his Complaint to state additional facts against Corizon if he discovers any after the disclosure and discovery phases of this case. 4. Discussion of Claims against Supervisory Defendants Plaintiff alleges that he has been seen by Dr. Migliori, the prison doctor, who refuses to authorize treatment for the defective mesh that is causing his pain. Plaintiff further alleges that the IDOC medical supervisor Rona Siegert, Corizon administrative supervisor Grant Roberts, and IDOC Warden Jay Christensen were made aware of his need for remedial surgery, including by Plaintiff’s exhaustion of the prison grievance system, but they have ignored his requests. Because these supervisors allegedly had personal participation in denial of the treatment, the Court will permit him to proceed against them. 5. Conclusion Plaintiff may proceed as outlined above. 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. If, during the course of proceedings, the discovery process reveals facts showing that other defendants were involved in his treatment, he may file an amended complaint with a motion to amend. PLAINTIFF’S REQUEST FOR COUNSEL Plaintiff has used the help of another inmate to prepare his Complaint. Plaintiff asserts that he is mentally ill, which prohibits him from properly explaining his facts. Plaintiff has drawn a picture included in the Complaint to demonstrate his areas of pain. (Dkt. 3, p. 8.) At this time, it is unclear whether Plaintiff’s claims have merit. Defendant Siegert will be required to submit a copy of Plaintiff’s mental health records and medical records under seal for the Court to review and to provide Plaintiff with a copy. After Plaintiff has reviewed the records, he may submit a motion for appointment of counsel, detailing the life activities he participates in, those he has difficulties with, and those he cannot do at all. He must provide facts about his mental illness, including his diagnosis, treatment, and how his mind and body have reacted to the treatment. After the review, the Court will determine whether appointment of counsel is appropriate. At this time, the request will be denied without prejudice. ORDER IT IS ORDERED: 1. Plaintiff may proceed on Eighth Amendment claims against Defendants Rona Siegert, Grant Roberts, Dr. Migliori, and Jay Christensen. All claims against Defendant Corizon are TERMINATED, and Corizon 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 assert such claims.1 1 Any amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely upon or 2. Defendants will be allowed to waive service of summons by executing, or having their 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 Defendants choose 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: a. Mark Kubinski, Deputy Attorney General for the State of Idaho, Idaho Department of Corrections, 1299 North Orchard, Ste. 110, Boise, Idaho 83706 on behalf of Defendant Rona Siegert and Jay Christensen. b. J. Kevin West and Dylan A. Eaton, Parsons Behle, 800 W. Main Street, Suite 1300, Boise, ID 83702, on behalf of Defendants Grant Roberts and Dr. Migliori. 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 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., 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). 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 Defendants 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 remaining Defendants, or claims against them will be dismissed without prejudice without further notice. 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 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. At the time she files an answer or pre-answer motion in this action, Defendant Rona Siegert is ordered to submit a copy of Plaintiff’s mental health records and medical records under seal for the Court to review, as well as provide a copy to Plaintiff. After the review, the Court will determine whether appointment of counsel is appropriate. At this time, the request will be denied without prejudice. 14. After Plaintiff has reviewed the records, if he desires to request appointment of counsel, he must file a motion for appointment of counsel that includes the information specified above. 15. 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. SE DATED: December 13, 2019 Koh © cee tf □ Ly B. Lynn Winmill LRICT OSS US. District Court Judge INITIAL REVIEW ORDER BY SCREENING JUDGE - 12