GEORGE WILLIAMS, JR., v. ROBERT J. PALMQUIST, et al.
Case No. C08-1180-RAJ-JPD
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
June 9, 2010
JAMES P. DONOHUE, United States Magistrate Judge
Case 2:08-cv-01180-RAJ Document 82 Filed 06/09/10 Page 1 of 20
INTRODUCTION AND SUMMARY CONCLUSION
Plaintiff George Williams has filed a civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), to allege violations of his constitutional rights during the course of his confinement in the Federal Detention Center at SeaTac, Washington (“FDC SeaTac“) in 2007. Specifically, plaintiff alleges in his amended complaint that he was assaulted on various occasions by FDC SeaTac employees, that he was denied access to showers, bedding, and mail while on suicide watch, and that he was denied adequate medical care. (See Dkt. No. 8 at 4-8.) Plaintiff‘s claim of inadequate medical care was previously dismissed based upon plaintiff‘s failure to exhaust that claim through the Bureau of Prisons administrative remedy process. (See Dkt. Nos. 37 and 39.)
The Court, having reviewed defendants’ motion, plaintiff‘s response thereto, and the balance of the record, concludes that defendants’ motion should be granted with respect to all of plaintiff‘s excessive force claims, and denied with respect to plaintiff‘s claims that he was denied showers, bedding, and mail while on suicide watch.
BACKGROUND
Plaintiff was confined at FDC SeaTac from March 24, 2006, until October 18, 2007, while awaiting resolution of federal criminal charges filed against him in the Western District of Washington, Tacoma Division.2 (Dkt. No. 67 at 2.) During the course of his confinement at FDC SeaTac, plaintiff spent a considerable amount of time in the Special Housing Unit (“SHU“). (See Dkt. No. 67, Ex. J at 1-2.) The SHU houses inmates designated for either administrative detention or disciplinary segregation. (See Dkt. No. 67 at 4.) Administrative detention is a non-punitive
Plaintiff also spent a significant amount of time on suicide watch during the course of his confinement at FDC SeaTac. (See id.) The suicide watch cell is located in the Health Services Unit of FDC SeaTac. (Dkt. No. 67 at 5.) Inmates who are deemed suicidal, based on either exhibited behaviors or statements, are immediately placed on suicide watch. (Id.) Inmates who are on suicide watch status remain under constant observation for the duration of their stay in the suicide watch cell. (Id.) Personal items are not issued to inmates on suicide watch status unless those items are approved by the Chief Psychologist or her designee. (Id.) Once an inmate is judged to no longer be suicidal, a psychologist will terminate the suicide watch. (Id.)
Plaintiff was placed on suicide watch status in response both to statements threatening self-harm and to actual attempts to inflict self-harm. (See Dkt. Nos. 65, 66 and 68 and attached exhibits.) Despite plaintiff‘s numerous threats and attempts to inflict self-harm, the BOP psychologists who interacted with plaintiff during his incarceration at FDC SeaTac generally believed that plaintiff was merely engaging in acting out behavior and was not truly suicidal. (See id.)
The claims asserted by plaintiff in his amended complaint all relate to times when plaintiff was either on suicide watch, or was being transferred to or from suicide watch. Specifically, plaintiff alleges that: (1) he was assaulted by corrections officials on August 16, 2007, after he attempted to
DISCUSSION
Defendants move for summary judgment on the grounds that plaintiff has failed to establish that his claims of excessive use of force are sufficient to establish a constitutional violation. Defendants also argue that plaintiff‘s claims fail to allege personal involvement with the requisite specificity. Defendants submitted in support of their summary judgment motion numerous declarations from individuals with knowledge of relevant facts as well as excerpts of video taken of various incidents in which plaintiff was involved during the course of his incarceration at FDC SeaTac. Plaintiff submitted a short brief in response to defendants’ motion in which he argues that he can prove his rights were violated. Plaintiff also submitted an affidavit in support of his responsive brief in which he responds more directly to the arguments made by defendants in their motion. Finally, plaintiff submitted his own set of videos for the Court‘s consideration.3
Summary judgment is proper only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
In response to a properly supported summary judgment motion, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts demonstrating a genuine issue of fact for trial and produce evidence sufficient to establish the existence of the elements essential to his case. See
Bivens Standard
In order to sustain a cause of action under Bivens, a plaintiff must satisfy the requirements of an action pursuant to
Excessive Use of Force
Plaintiff alleges in his amended complaint that defendants’ use of force violated his Eighth Amendment rights, and defendants analyze plaintiff‘s excessive force claims by applying an Eighth Amendment standard. However, because plaintiff was a pretrial detainee at the time his claims arose, the parties’ reliance on the Eighth Amendment is misplaced. The United States Supreme Court has made clear that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989). And, the Ninth Circuit has determined that “the Fourth Amendment sets the ‘applicable constitutional limitations’ for considering claims of excessive force during pretrial detention.” Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002) (citing Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996)). Thus, plaintiff‘s claim of excessive force must be evaluated under the Fourth Amendment‘s objective reasonableness standard. Pierce, 76 F.3d at 1043.
In Graham, the Supreme Court explained that determining whether a particular use of force was “reasonable” under the Fourth Amendment “requires a careful balancing of the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotations omitted). Among the factors that must be considered in evaluating a claim of excessive force are “whether the suspect poses an immediate threat to the safety of the officers or others,” and “whether he is actively resisting.” Id. See also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001). The Supreme Court made clear in Graham that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
Plaintiff identifies two separate incidents of excessive force that allegedly occurred on August 16, 2007. (See Dkt. No. 8 at 4-5.) The first incident occurred in the SHU after plaintiff attempted to hang himself in his cell, and the second incident occurred after plaintiff was transported to the Health Services Unit following the attempted hanging. (See id.)
As of August 16, 2007, plaintiff had been on suicide watch for approximately 21 days. (See Dkt. No. 67, Ex. J at 2.) Two days previously, on August 14, 2007, BOP psychologists had determined that plaintiff could be safely returned to the SHU. (See Dkt. No. 64 at 1-2, Dkt. No. 65, Ex. 1.) However, plaintiff refused to submit to restraints for escort to the SHU and a use of force team was therefore called upon to extract plaintiff from his cell. (Id.) Plaintiff was extracted from the suicide watch cell and transferred to the SHU without incident. (Id.) However, moments after his placement in the SHU cell, plaintiff was observed cutting his wrist with a small piece of mortar or concrete which he apparently found in his cell. (Dkt. No. 64 at 2.) The use of force team therefore entered plaintiff‘s cell and placed him in restraints again. (Id.) Though BOP psychologists did not believe plaintiff was truly suicidal, plaintiff was returned to suicide watch out of an abundance of caution. (Id.)
On August 16, 2007, BOP officials again attempted to move plaintiff from suicide watch to the SHU. (See Dkt. No. 64 at 3, Dkt. No. 66 at 1-2.) Given plaintiff‘s refusal to cooperate with the move to the SHU on August 14, Dr. Low, a Forensic Unit Psychologist at FDC SeaTac, immediately attempted confrontation avoidance procedures with plaintiff regarding the planned move. (Dkt. No. 66 at 2.) However, those procedures were not successful. (Id.) When plaintiff refused to cooperate with the transfer, Warden Palmquist and Captain Munoz were briefed on the situation and authorized a calculated use of force. (Dkt. No. 64 at 3.) A five-man use of force team thereafter entered plaintiff‘s cell, applied restraints, and escorted plaintiff to the SHU. (Id.) Plaintiff did not resist the
Plaintiff does not dispute that he attempted to hang himself. He contends, however, that after the attempted hanging, while still in the SHU, Captain Munoz, and Lieutenants Byram and Monsivais, entered his cell and beat him up.4 (Dkt. No. 8 at 4.) Plaintiff asserts that he lost consciousness as a result of the beating and that when he regained consciousness he was in handcuffs and leg restraints and was still being beaten. (Id.) Plaintiff asserts that when another officer came to the door, Captain Munoz instructed that plaintiff be picked up and moved to the strip cell. (Id.) Plaintiff contends that once in the strip cell, he was “slammed” into the wall by Captain Munoz and taken down with a leg sweep. (Id.) According to plaintiff, this is when he “busted [his] head open.” (Id.)
Plaintiff was thereafter transported back to suicide watch. (See Dkt. No. 64 at 3.) Plaintiff contends that once he arrived back in the Health Services Unit, he was assaulted by “a number of staff and officers.” (See Dkt. No. 8 at 4-5.) He further contends that Captain Munoz, and Lieutenants Monsivais and Byram, were involved in the assault, and that while the assault was ongoing, Warden Palmquist “stood around giving orders to his workers.” (Id.)
Defendants, in support of their motion for summary judgment, have submitted the declaration of S. Leaf, a Physician‘s Assistant (“PA“) at FDC SeaTac, who was present during the events of August 16, 2007.5 (Dkt. No. 64.) With respect to the first incident, PA Leaf states that when plaintiff tied a jumpsuit around his neck in an attempt to hang himself, four BOP employees rushed into
Once plaintiff arrived on the medical floor, he continued to be aggressive and assaultive towards staff as they attempted to place him in ambulatory restraints and remove his t-shirt and socks. (Id. at 4.) PA Leaf notes specifically that plaintiff head-butted Lieutenant Monsivais and kicked him in the abdomen. (Id.) According to PA Leaf, once staff had secured the restraints and left plaintiff in the suicide watch cell, plaintiff began to ram his head into the wall. (Id.) Warden Palmquist thereafter approved the use of four-point restraints. (Id.) After plaintiff was placed in four-point restraints on the bed in the suicide cell, plaintiff began to bang his head on the frame of the bed. (Id.) Plaintiff was therefore transported back to the SHU where he could be restrained on a bed with better padding. (Id.) PA Leaf states that he medically assessed plaintiff at several points during the events of August 16 and found no serious injuries, only minor self-inflicted abrasions. (Dkt. No. 64 at 5.)
The videos submitted by the parties show the following events of August 16: (1) plaintiff‘s initial move from the suicide watch cell to the SHU; (2) plaintiff on the floor of the strip cell and his subsequent transfer back to the Health Services Unit; and, (3) plaintiff‘s transfer from the suicide cell to the SHU where he was placed in four-point restraints. The videos do not show plaintiff‘s attempt to hang himself in his cell in the SHU, nor do they show his removal from that cell. This is the period of time during which plaintiff asserts he was beaten by Captain Munoz and Lieutenants Monsivais
Plaintiff offers no evidence to support his assertion that defendants took steps to ensure the video camera did not capture certain events of August 16, 2007, and, defendants dispute plaintiff‘s suggestion that there is video which has not been provided. (See Dkt. No. 72 at 2.) Moreover, the videos that were provided undermine plaintiff‘s assertion that he was beaten during a time when the camera was turned off. While plaintiff contends that his head was “busted open” during the beating, the videos confirm PA Leaf‘s description of plaintiff‘s injuries as minor and self-inflicted. (See Dkt. No. 74, Ex. B.) In addition, plaintiff admits that when he was on the floor of the strip cell he began slamming his head into the ground. (See Dkt. No. 70-2 at 6.) This admission is consistent with PA Leaf‘s report that after being placed face down in the strip cell plaintiff “began to bang his own head on the ground, while shouting that he was being beaten.” (See Dkt. No. 64 at 4.) Plaintiff‘s admission also explains the injuries which were subsequently identified and photographed. (See Dkt. No. 64, Ex. 2 and Dkt. No. 67, Ex. N.) Plaintiff‘s claim that he was beaten in the SHU following his hanging attempt is simply not supported by any evidence in the record.
With respect to plaintiff‘s claim that he was assaulted by Captain Munoz, and Lieutenants Monsivais and Byram, once he arrived back in the Health Services Unit, the videos absolutely refute that claim.6 The videos show that once plaintiff returned to the medical floor, he was combative as officers restrained him so that they could take photos of the injuries he sustained while in the SHU, and he was aggressive and assaultive as officers placed him in ambulatory restraints. (See Dkt. No.
Finally, plaintiff asserts that during his transfer from the SHU back to the suicide watch cell following his attempted hanging, Warden Palmquist stood around giving orders to his workers. (Dkt. No. 8 at 4.) Plaintiff does not describe what those orders were nor does he explain how those orders impacted the events of that date. In fact, the only references in the evidence to Warden Palmquist in relation to the events of August 16, 2007, were contained in the declaration of PA Leaf who stated that Warden Palmquist approved a calculated use of force to remove plaintiff from the suicide cell in the first instance, and that he subsequently approved the use of four-point restraints on plaintiff. (See Dkt. No. 64 at 3-4.)
With respect to plaintiff‘s extraction from the suicide cell, the record reflects that this action was authorized by Warden Palmquist only after confrontation avoidance procedures failed, and plaintiff adamantly refused to cooperate with the move. And, with respect to the decision to place plaintiff in four-point restraints, the record reflects that this action was authorized only after plaintiff demonstrated that, if left alone in his cell, even in ambulatory restraints, he would attempt to harm himself. Thus, the decisions of Warden Palmquist were entirely reasonable under the circumstances.
As the record makes clear that the force used against plaintiff during the events of August 16, 2007, was entirely reasonable, defendants are entitled to summary judgment with respect to the claims arising out of those events.
2. October 17, 2007 Use of Force Incident
Plaintiff also alleges that he was assaulted on October 17, 2007. (See Dkt. No. 8 at 5.) Plaintiff fails to specifically identify who committed this alleged assault. He indicates only that on the date in question, he covered all of the windows in the suicide cell because he wasn‘t allowed to
Defendants have submitted in support of their summary judgment motion the declaration of Dr. Lone, the Drug Abuse Program Coordinator at FDC SeaTac. (See Dkt. No. 65.) Dr. Lone confirms that on October 17, 2007, plaintiff became upset because he was not permitted to read his mail. (Id. at 3.) According to Dr. Lone, plaintiff proceeded to destroy his mattress and to fashion strips of mattress into a rope which he tied to the metal frame of his bed. (Id.) When Dr. Lone explained to plaintiff that he could not receive his letters until he was released from suicide watch and went back to the SHU, plaintiff placed the rope around his neck and rolled on the floor to tighten it. (Id.) A use of force team entered the cell and subdued plaintiff without incident. (Id.)
Dr. Lone states that he instructed staff to leave plaintiff in the suicide cell, with no property except for his boxer shorts, with the hope that he would calm down and refrain from further self-harm. (Id.) Plaintiff, however, proceeded to remove his boxer shorts, soak them in the toilet, rip them into strips, and then tie them around his neck in another attempt to harm himself. (Id.) The use of force team entered the cell and subdued plaintiff again. (Id.) While the team was subduing him, plaintiff began to bang his head against the wall. (Id.) Plaintiff was thereafter placed in four-point restraints, which he resisted, and he remained in those restraints until he calmed down and agreed not to hurt himself. (Id.) Dr. Lone opines that plaintiff‘s behavior was not suicidal, but manipulative, antagonistic, and controlling. (Id.)
This claim is a non-starter because plaintiff fails to specifically identify who participated in the alleged assault. To the extent plaintiff contends that the Warden, the Captain, and unidentified
3. Additional Use of Force Incidents
Plaintiff alleges that from August 16, 2007, to October 18, 2007, he was assaulted on a number of occasions by the SORT and that these assaults were directed by Warden Palmquist and Captain Munoz. (See Dkt. No. 8 at 7.) Plaintiff identifies four SORT members whom he believes participated in the alleged assaults, Corrections Officers Cortez, Woods, Patrick and Steele.7 (Id.) Plaintiff also appears to assert, with respect to these alleged assaults, that Special Investigative Agent Evans and Special Investigative Supervisor Carlson are responsible for the assaults because they passed along to the Warden and the Captain information about plaintiff which was not completely true. (Id.)
Plaintiff does not specifically identify when the alleged additional assaults occurred. However, there is evidence in the record concerning instances, other than those discussed in detail above, when the use of force team was called upon to respond to incidents involving plaintiff. This Court will briefly identify and discuss the additional incidents.
Defendants have submitted evidence which shows that on October 10, 2007, plaintiff became upset after a discussion with staff during which he was told that assault charges arising from the
Dr. Katherine Skillestad Winans, the Chief Psychologist at FDC SeaTac, attempted to talk with plaintiff following the attempted hanging, but plaintiff largely rebuffed those efforts. (See Dkt. No. 74, Ex. D.) Once plaintiff was transferred to suicide watch, Dr. Skillestad authorized plaintiff to have only underwear, a paper gown, and a mattress, because plaintiff could not assure his own safety. (Id.) Dr. Skillestad also advised plaintiff that she would consider giving him a blanket. (Id.) A blanket was provided to plaintiff later that evening, apparently at the direction of Warden Palmquist. (Id.)
In his response to defendants’ summary judgment motion, plaintiff asserts with respect to the October 10 incident only that Dr. Skillestad acknowledged a number of times on video that it appeared plaintiff had been lied to about the disposition of charges arising out of the August 16 incident and that he had a right to be mad.8 (See Dkt. No. 70-2 at 8-9.) However, whether or not plaintiff was justified in being upset has no bearing on whether the use of force necessitated by plaintiff‘s actions on that date was reasonable. The video makes clear that the response of corrections officers to plaintiff‘s attempt to hang himself and to plaintiff‘s subsequent refusal to cooperate with his transport to suicide watch was measured and entirely reasonable. (See Dkt. No. 74, Ex. D.)
Shortly thereafter, the use of force team was directed back to the cell because plaintiff was attempting to cut his left wrist with a piece of plastic. (Id. at 6.) Plaintiff resisted efforts to restrain him. (Id.) Once restraints were in place, plaintiff continued to struggle with the team and continued to make threats of self-harm. (Id.) A decision was made to transfer plaintiff to the SHU where he could be placed in four-point restraints on a bed with the extra padding necessary to preclude plaintiff from inflicting harm on himself. (Id.) Because of plaintiff‘s lack of cooperation, he was placed on a gurney for transport to the SHU. (Id.) Plaintiff remained in four-point restraints for approximately two hours before being returned to the suicide watch cell. (Id.) Plaintiff suffered minor injuries as a result of the incidents in the suicide cell including a laceration to his left wrist from the self-cutting, mild abrasions to his forehead and the back of his head, and contusions to his lower back sustained after he jumped on the use of force team and fell to the floor. (Id.)
Finally, defendants have submitted evidence which show that on October 15, 2007, the use of force team was once again called upon to engage with plaintiff. At that time, plaintiff was still on suicide watch. Lieutenant Hayden, a Supervisor in the Correctional Services Department at FDC SeaTac, states that on that day plaintiff was observed with a broken plastic cup in his cell and it appeared to staff that plaintiff was attempting to cut his wrist with a piece of the plastic. (Dkt. No. 62 at 2.) Plaintiff was ordered to surrender the cup or to cuff-up so that a search of the cell could be conducted. (Id.) When plaintiff refused to comply with the directives, a five-man use of force team entered the cell and restrained plaintiff while a search of the cell was conducted. (Id.) After the use of force team exited the cell, plaintiff refused to allow the handcuffs to be removed. (Id.) According to Lieutenant Hayden, plaintiff refused staff requests to allow them to remove the cuffs for approximately an hour. (Id.)
After the cuffs were removed, plaintiff then began to tear his plastic mattress cover into strips which he tied together to make a noose. (See id.) Plaintiff placed the noose over his head and began to turn in circles until the noose was tightened around his neck. (Id.) A use of force team entered the cell, removed the noose, and placed plaintiff in restraints. (Id.) Plaintiff was transported to the SHU
Plaintiff, in his response to defendants’ motion, asserts with respect to the October 15 incident only that he kept the cuffs on on that day, because the first time the officers went into his cell “there was no camera and they just jumped on me for no reason so I want to get a camera down there to show this.” (Dkt. No. 70-2.) In fact, there is a video of the first incident on October 15 and that video makes clear that officers did not “just jump on [him] for no reason,” they were forced to restrain plaintiff when he refused to comply with directives that he either surrender the broken cup or cuff-up. (See Dkt. No. 74, Ex. F.) The evidence before this Court makes clear that the force used against plaintiff on October 15, 2007, was necessitated by plaintiff‘s own conduct, and that the degree of force used was entirely reasonable under the circumstances.
Not only was the amount of force used in the above incidents entirely reasonable, the record is devoid of any evidence demonstrating that Warden Palmquist, Captain Munoz, or either of the two SORT members who have been served in this action personally participated in any of the incidents identified above. The record is also devoid of any evidence that the above incidents were attributable to defendants Evans and Carlson because of alleged misinformation they provided the Warden. Accordingly, defendants are entitled to summary judgment with respect to any claims of excessive force arising out of the three incidents discussed immediately above.
Deprivation of Showers, Bedding and Mail
Plaintiff asserts in his amended complaint that during the time he was on suicide watch from the end of July 2007 to the end of August 2007, and again from the middle of September 2007 to October 18, 2007, he was denied showers, bedding, and mail. (Dkt. No. 8 at 6.) With respect to the showers, plaintiff alleges in his amended complaint that the Warden told him that Dr. Skillestad, the
Defendants, in their motion for summary judgment, argue that plaintiff fails to allege personal involvement with the requisite specificity as to these claims. Defendants further argue that they are entitled to qualified immunity with respect to these claims. The Court disagrees. The allegations set forth by plaintiff in his amended complaint are arguably sufficient to allege a cause of action against Dr. Skillestad for denying him showers while he was on suicide watch. And, while the amended complaint does not specifically identify those individuals responsible for denying him access to blankets and to mail, plaintiff does indicate in his papers opposing defendants’ summary judgment motion that Dr. Skillestad was the individual responsible for all of the alleged deprivations.9 In this Court‘s view, plaintiff has adequately alleged a cause of action against Dr. Skillestad relating to the conditions of his confinement while on suicide watch. Plaintiff has not, however, adequately alleged a cause of action against any other named defendant relating to the conditions of his confinement while on suicide watch.
As noted above, defendants also argue that they are entitled to qualified immunity with respect to plaintiff claims that he was denied showers, bedding, and mail. However, defendants once
The test for identifying unconstitutional punishment at the pretrial stage of a criminal proceeding requires a court to examine “whether there was an express intent to punish, or ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].‘” Demery v. Arpaio, 378 F.3d 1020, 1028 (9th Cir. 2004) (quoting Bell, 441 U.S. at 538). “For a particular governmental action to constitute punishment, (1) that action must cause the detainee to suffer some harm or ‘disability,’ and (2) the purpose of the governmental action must be to punish the detainee.” Demery, 378 F.3d at 1029. Further, “to constitute punishment, the harm or disability caused by the government‘s action must either significantly exceed, or be independent of, the inherent discomforts of confinement.” Id. at 1030.
At this juncture, there are insufficient facts in the record to allow the Court to evaluate plaintiff‘s conditions of confinement claims under the standard set forth above. Accordingly, this Court recommends that defendants’ motion for summary judgment be denied with respect to those claims and that plaintiff be permitted to proceed on the conditions of confinement claims alleged against Dr. Skillestad.
Unserved Defendants
As noted above, there are five individuals who were named as defendants in this action who were never served. The unserved defendants are: Lieutenant Byram, Lieutenant Monsivais, Corrections Officer Cortez, Corrections Officer Woods, and Dr. S. Davis. While the Court is responsible for serving defendants in an action, such as this one, where the plaintiff is granted leave
CONCLUSION
Based upon the foregoing, this Court recommends that defendants’ motion for summary judgment be granted with respect to all of plaintiff‘s excessive force claims, and denied with respect to plaintiff‘s claims, alleged only against Dr. Skillestad, that he was denied showers, bedding and mail while on suicide watch. This Court further recommends that plaintiff‘s amended complaint be dismissed with prejudice as to defendants Robert Palmquist, Ronald Munoz, Marty Patrick, Kevin Steele, Nichole Hayden, Cynthia Low, Robert Lone, Keith Evans, Larry Carlson, and Eahou Davis. Plaintiff‘s amended complaint should be dismissed without prejudice as to defendants Byram, Monsivais, Cortez, Woods, and S. Davis who were never served, and therefore never appeared, in this action. Finally, this Court recommends that this action be permitted to proceed at this time against Katherine Skillestad Winans with respect to plaintiff‘s claims that she denied him showers, bedding and mail while he was on suicide watch. A proposed order accompanies this Report and Recommendation.
DATED this 9th day of June, 2010.
JAMES P. DONOHUE
United States Magistrate Judge