3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 JIN ACKERMAN, Case No. 3:22-cv-00049-MMD-CSD
7 Plaintiff, SCREENING ORDER v. 8 GITTERE, et al., 9 Defendants. 10 11 Pro se Plaintiff Jin Ackerman, who is incarcerated in the custody of the Nevada 12 Department of Corrections (“NDOC”), has submitted a civil rights complaint under 42 13 U.S.C. § 1983. (ECF No. 1-1 (“Complaint”).) Ackerman has also filed an application to 14 proceed in forma pauperis. (ECF No. 1.) The matter of the filing fee will be temporarily 15 deferred. The Court now screens Ackerman’s Complaint under 28 U.S.C. § 1915A. 16 I. SCREENING STANDARD 17 Federal courts must conduct a preliminary screening in any case in which an 18 incarcerated person seeks redress from a governmental entity or officer or employee of 19 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify 20 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 21 claim upon which relief may be granted, or seek monetary relief from a defendant who is 22 immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must 23 be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 24 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 25 elements: (1) the violation of a right secured by the Constitution or laws of the United 26 States; and (2) that the alleged violation was committed by a person acting under color 27 of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 28 /// 2 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 3 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 4 to state a claim on which relief may be granted, or seeks monetary relief against a 5 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 6 complaint for failure to state a claim upon which relief can be granted is provided for in 7 Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under 8 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 9 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 10 the complaint with directions as to curing its deficiencies, unless it is clear from the face 11 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 12 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 14 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 15 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 16 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 17 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all 18 allegations of material fact stated in the complaint, and the Court construes them in the 19 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 20 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 21 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 22 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 23 must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 24 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 25 insufficient. See id. 26 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 27 that, because they are no more than mere conclusions, are not entitled to the assumption 28 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 2 there are well-pleaded factual allegations, a court should assume their veracity and then 3 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 4 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 5 requires the reviewing court to draw on its judicial experience and common sense.” Id. 6 Finally, all or part of a complaint filed by an incarcerated person may be dismissed 7 sua sponte if that person’s claims lack an arguable basis either in law or in fact. This 8 includes claims based on legal conclusions that are untenable (e.g., claims against 9 defendants who are immune from suit or claims of infringement of a legal interest which 10 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 11 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); 12 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 13 II. SCREENING OF COMPLAINT 14 In the Complaint, Ackerman sues multiple Defendants for events that took place 15 while Ackerman was incarcerated at Ely State Prison (“ESP”). (ECF No. 1-1 at 1.) 16 Ackerman sues Defendants Gittere, NDOC Director 2020, and B. Williams. (Id. at 1-2.) 17 Ackerman brings two counts and seeks monetary and injunctive relief. (Id. at 3-8.) 18 Ackerman alleges the following. On October 13, 2019, there was an attempt to 19 murder an inmate which led to a riot and fighting between two racial groups. (Id. at 3.) 20 Ackerman was targeted because of his race, and he was unable to leave the area. (Id.) 21 Following the incident, Ackerman was initially charged with murder. (Id.) This charge was 22 later amended to battery and then amended again to rioting. (Id. at 4.) Ackerman was 23 found guilty of rioting and assessed restitution. (Id.) 24 Ackerman was denied the ability to participate in a restitution hearing, and he did 25 not receive an itemized list of the assessed restitution. (Id.) Ackerman was charged 26 restitution for damages related to the attempted murder, of which he was not found guilty, 27 as well as damages for the subsequent rioting. (Id.) Ackerman was told he was charged 28 restitution for the attempted murder because he was involved in the rioting following the 2 allegations, Ackerman brings an Eighth Amendment due process claim1 and a claim of 3 cruel and unusual punishment under the Eighth Amendment.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 JIN ACKERMAN, Case No. 3:22-cv-00049-MMD-CSD
7 Plaintiff, SCREENING ORDER v. 8 GITTERE, et al., 9 Defendants. 10 11 Pro se Plaintiff Jin Ackerman, who is incarcerated in the custody of the Nevada 12 Department of Corrections (“NDOC”), has submitted a civil rights complaint under 42 13 U.S.C. § 1983. (ECF No. 1-1 (“Complaint”).) Ackerman has also filed an application to 14 proceed in forma pauperis. (ECF No. 1.) The matter of the filing fee will be temporarily 15 deferred. The Court now screens Ackerman’s Complaint under 28 U.S.C. § 1915A. 16 I. SCREENING STANDARD 17 Federal courts must conduct a preliminary screening in any case in which an 18 incarcerated person seeks redress from a governmental entity or officer or employee of 19 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify 20 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 21 claim upon which relief may be granted, or seek monetary relief from a defendant who is 22 immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must 23 be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 24 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 25 elements: (1) the violation of a right secured by the Constitution or laws of the United 26 States; and (2) that the alleged violation was committed by a person acting under color 27 of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 28 /// 2 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 3 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 4 to state a claim on which relief may be granted, or seeks monetary relief against a 5 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 6 complaint for failure to state a claim upon which relief can be granted is provided for in 7 Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under 8 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 9 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 10 the complaint with directions as to curing its deficiencies, unless it is clear from the face 11 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 12 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 14 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 15 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 16 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 17 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all 18 allegations of material fact stated in the complaint, and the Court construes them in the 19 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 20 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 21 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 22 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 23 must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 24 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 25 insufficient. See id. 26 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 27 that, because they are no more than mere conclusions, are not entitled to the assumption 28 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 2 there are well-pleaded factual allegations, a court should assume their veracity and then 3 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 4 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 5 requires the reviewing court to draw on its judicial experience and common sense.” Id. 6 Finally, all or part of a complaint filed by an incarcerated person may be dismissed 7 sua sponte if that person’s claims lack an arguable basis either in law or in fact. This 8 includes claims based on legal conclusions that are untenable (e.g., claims against 9 defendants who are immune from suit or claims of infringement of a legal interest which 10 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 11 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); 12 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 13 II. SCREENING OF COMPLAINT 14 In the Complaint, Ackerman sues multiple Defendants for events that took place 15 while Ackerman was incarcerated at Ely State Prison (“ESP”). (ECF No. 1-1 at 1.) 16 Ackerman sues Defendants Gittere, NDOC Director 2020, and B. Williams. (Id. at 1-2.) 17 Ackerman brings two counts and seeks monetary and injunctive relief. (Id. at 3-8.) 18 Ackerman alleges the following. On October 13, 2019, there was an attempt to 19 murder an inmate which led to a riot and fighting between two racial groups. (Id. at 3.) 20 Ackerman was targeted because of his race, and he was unable to leave the area. (Id.) 21 Following the incident, Ackerman was initially charged with murder. (Id.) This charge was 22 later amended to battery and then amended again to rioting. (Id. at 4.) Ackerman was 23 found guilty of rioting and assessed restitution. (Id.) 24 Ackerman was denied the ability to participate in a restitution hearing, and he did 25 not receive an itemized list of the assessed restitution. (Id.) Ackerman was charged 26 restitution for damages related to the attempted murder, of which he was not found guilty, 27 as well as damages for the subsequent rioting. (Id.) Ackerman was told he was charged 28 restitution for the attempted murder because he was involved in the rioting following the 2 allegations, Ackerman brings an Eighth Amendment due process claim1 and a claim of 3 cruel and unusual punishment under the Eighth Amendment. 4 These allegations are very similar to allegations that Ackerman made in a 5 previously filed case, Case No. 3:20-cv-00337-MMD-CSD (“First Case”). In that case, 6 Ackerman alleged that he did not receive due process during his disciplinary hearing, was 7 found guilty of rioting, even though video evidence showed Ackerman was innocent, and 8 subsequently charged restitution and placed in segregation. (See Case No. 3:20-cv- 9 00261-MMD-CLB (ECF No. 8 at 4-5)). 10 Duplicative litigation by a plaintiff proceeding in forma pauperis may be dismissed 11 as malicious under 28 U.S.C. § 1915(e). See Cato v. United States, 70 F.3d 1103, 1105 12 n.2 (9th Cir. 1995) (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (holding 13 that repetitious litigation of virtually identical causes of action is subject to dismissal as 14 malicious)); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993) (holding that it is 15 malicious for a “pauper” to file a lawsuit that duplicates allegations of another pending 16 federal lawsuit by the same plaintiff). 17 The allegations in this case appear to be mostly duplicative of the allegations in 18 the First Case with a few additional allegations. It does not appear that Ackerman was 19 deliberately bringing duplicative litigation, rather it appears that after bringing the First 20 Case, Ackerman realized he should have included a few more allegations. Rather than 21 filing an amended complaint in the First Case, Ackerman initiated this action. 22 In light of the apparently duplicative allegations in the two cases, the Court is 23 inclined to dismiss this case to control its docket. See, e.g., Thompson v. Hous. Auth. of 24 City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (explaining that in exercising their inherent 25 power to control their dockets, courts “may impose sanctions including, where appropriate 26 . . . dismissal”). However, the Court will first provide Ackerman an opportunity to show 27 cause why this case (Case No. 3:22-cv-00049-MMD-CSD) should not be dismissed as 28 1The Court notes that Ackerman’s due process claim is grounded in the Fourteenth 1|| duplicative. If Ackerman believes that the allegations and claims in this case are different and distinct from the claims in the First Case, Ackerman must show cause in writing within 30 days explaining why this case should not be dismissed as duplicative of the First Case. 4 Alternatively, if Ackerman agrees with the Court that this case is duplicative of the 5|| First Case, Ackerman may file a motion to voluntarily dismiss this case. The Court will grant Ackerman leave to file an amended complaint in the First Case so that Ackerman may include the additional factual allegations and claims from this case in the First Case. 8|| Ill. ©CONCLUSION 9 It is therefore ordered that within 30 days of when this order is issued, Plaintiff Jin 10|| Ackerman must show cause, in writing, why this case should not be dismissed as duplicative of claims encompassed in Case No. 3:20-cv-00337-MMD-CSD. 12 It is further ordered that, within the same timeframe, Ackerman may alternatively voluntarily dismiss this case, if Ackerman agrees that his assertions herein are in fact duplicative as noted. 15 It is further ordered that the Court will grant Ackerman leave to file an amended 16|| complaint in Case No. 3:20-cv-00337-MMD-CSD so that Ackerman may include the || additional factual allegations and claims from this case in Case No. 3:20-cv-00337-MMD- 18|| CSD. 19 DATED THIS 1* Day of June 2022. 20 21
23 MIRANBAG UO CHIEF UNITED STATES DISTRICT JUDGE
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