Blaxon v. State of Nevada

• Court: District Court, D. Nevada
• Decided: December 12, 2024
• Docket: 2:23-cv-02145
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT

5 DISTRICT OF NEVADA

6 * * *

7 ALEX BLAXON, Case No. 2:23-cv-02145-RFB-BNW 8 Plaintiff, SCREENING ORDER 9 FOR FIRST AMENDED COMPLAINT v. 10 [ECF No. 9] THE STATE OF NEVADA, et al., 11 Defendants. 12

13 14 Plaintiff Alex Blaxon (“Plaintiff”), who is incarcerated in the custody of the Nevada 15 Department of Corrections (“NDOC”), has submitted a first amended civil-rights complaint 16 (“FAC”) under 42 U.S.C. § 1983 and an application to proceed in forma pauperis. (ECF Nos. 6, 17 9). Because the Court finds that Plaintiff is unable to prepay the full filing fee in this action, the 18 Court grants his application to proceed in forma pauperis. (ECF No. 6). The Court now screens 19 Plaintiff’s FAC under 28 U.S.C. § 1915A. 20 21 I. SCREENING STANDARD 22 Federal courts must conduct a preliminary screening in any case in which an incarcerated 23 person seeks redress from a governmental entity or officer or employee of a governmental entity. 24 See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss 25 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or 26 seek monetary relief from a defendant who is immune from such relief. See id. §§ 1915A(b)(1), 27 (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 1 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 2 essential elements: (1) the violation of a right secured by the Constitution or laws of the United 3 States; and (2) that the alleged violation was committed by a person acting under color of state 4 law. West v. Atkins, 487 U.S. 42, 48 (1988). 5 In addition to the screening requirements under § 1915A, under the Prison Litigation 6 Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s claim if “the 7 allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on 8 which relief may be granted, or seeks monetary relief against a defendant who is immune from 9 such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon 10 which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the 11 Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an 12 amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be 13 given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear 14 from the face of the complaint that the deficiencies could not be cured by amendment. Cato v. 15 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 16 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 17 Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is 18 proper only if it the plaintiff clearly cannot prove any set of facts in support of the claim that would 19 entitle him or her to relief. Id. at 723–24. In making this determination, the Court takes as true all 20 allegations of material fact stated in the complaint, and the Court construes them in the light most 21 favorable to the plaintiff. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations 22 of a pro se complainant are held to less stringent standards than formal pleadings drafted by 23 lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not 24 require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. 25 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of 26 a cause of action is insufficient. Id. 27 Additionally, a reviewing court should “begin by identifying [allegations] that, because 1 they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a 3 complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded 4 factual allegations, a court should assume their veracity and then determine whether they plausibly 5 give rise to an entitlement to relief. Id. “Determining whether a complaint states a plausible claim 6 for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. Finally, all or part of a complaint filed by an incarcerated 8 person may be dismissed sua sponte if that person’s claims lack an arguable basis either in law or 9 in fact. This includes claims based on legal conclusions that are untenable—like claims against 10 defendants who are immune from suit or claims of infringement of a legal interest that clearly does 11 not exist—as well as claims based on fanciful factual allegations like fantastic or delusional 12 scenarios. Neitzke v. Williams, 490 U.S. 319, 327–28 (1989). 13 14 II. SCREENING OF FAC 15 In his FAC, Plaintiff sues multiple Defendants for events that took place while he was 16 detained at Clark County Detention Center (“CCDC”).1 Plaintiff sues Defendants Officer Shipton, 17 Officer Taylor, and Officer Chandler. Plaintiff brings two claims and seeks monetary relief. 18 Plaintiff alleges the following. Between December 1 and December 28, 2022, Plaintiff filed 19 a Prison Rape Elimination Act (“PREA”) complaint. Because of the PREA complaint, Officer 20 Taylor vindictively strip-searched Plaintiff, touching his genitals during the search. Afterwards, 21 Officer Shipton told Plaintiff that he was going to rape him for filing the PREA complaint. Plaintiff 22 reported this threat to Officer Chandler, but he failed to do anything. 23 Based on these allegations, Plaintiff alleges the Defendants vindictively executed a strip- 24 search and retaliated against him afterwards. The Court liberally construes the FAC as bringing 25 claims based on two different theories of liability: Fourth Amendment strip-search claim and First 26 Amendment retaliation claim. The Court will address each theory and any other issues in turn. 27 1 Plaintiff is currently incarcerated at High Desert State Prison. (ECF No. 9 at 1). 1 2 A. Fourth Amendment Strip-Search Claim 3 Generally, strip-searches do not violate the Fourth Amendment rights of inmates. See 4 Michenfelder v. Sumner, 860 F.2d 328, 332–33 (9th Cir. 1988). However, strip-searches that are 5 “excessive, vindictive, harassing, or unrelated to any legitimate penological interest” may be 6 unconstitutional. Id. at 332. Although pretrial detainees retain some Fourth Amendment rights 7 upon commitment to a corrections facility, the Fourth Amendment only prohibits unreasonable 8 searches. Bell v. Wolfish, 441 U.S. 520, 558 (1979). “The test of reasonableness under the Fourth 9 Amendment is not capable of precise definition or mechanical application.” Id. at 559. In each 10 case, a court must (1) balance the need for the particular search against the invasion of personal 11 rights that the search entails; (2) consider the scope of the particular intrusion; (3) consider the 12 manner in which the search is conducted; (4) consider the justification for initiating the search, 13 and (5) consider the place in which the search is conducted. Id. Courts also consider the existence 14 of a “valid, rational connection between the [jail] regulation and the legitimate governmental 15 interest put forward to justify it”; “the impact accommodation of the asserted constitutional right 16 will have on guards and other inmates, and on the allocation of [jail] resources generally”; and 17 “the existence of obvious, easy alternatives” as evidence that the regulation “is an ‘exaggerated 18 response’ to [jail] concerns.” Bull v. City & Cty. of San Francisco, 595 F.3d 964, 973 (9th Cir. 19 2010) (citing Turner v. Safley, 482 U.S. 78, 89–91 (1987)). 20 The Court finds that Plaintiff states a colorable strip-search claim on screening. Liberally 21 construing the allegations of the FAC, Officer Taylor vindictively conducted a strip-search of 22 Plaintiff because he filed a PREA complaint, not for a legitimate reason. These allegations are 23 sufficient on screening to state a colorable claim against Taylor. 24 B. Retaliation Claim 25 Inmates have a First Amendment right to file grievances and to pursue civil rights litigation 26 in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). “Without those bedrock 27 constitutional guarantees, inmates would be left with no viable mechanism to remedy [jail] 1 injustices. And because purely retaliatory actions taken against [an inmate] for having exercised 2 those rights necessarily undermine those protections, such actions violate the Constitution quite 3 apart from any underlying misconduct they are designed to shield.” Id. To state a viable First 4 Amendment retaliation claim in the jail context, a plaintiff must allege: “(1) [a]n assertion that a 5 state actor took some adverse action against an inmate (2) because of (3) that [inmate’s] protected 6 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 7 (5) the action did not reasonably advance a legitimate correctional goal.” Id. at 567–68. Total 8 chilling is not required; it is enough if an official’s acts would chill or silence a person of ordinary 9 firmness from future First Amendment activities. Id. at 568–69. A plaintiff who fails to allege a 10 chilling effect may still state a claim if he alleges that he suffered some other harm that is more 11 than minimal. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). 12 The Court finds that Plaintiff states a colorable retaliation claim on screening. Plaintiff 13 alleges that Officer Taylor, Officer Shipton, and Officer Chandler retaliated against him for filing 14 a PREA complaint. First, Officer Taylor conducted a vindictive strip-search. Second, Officer 15 Shipton threatened to rape Plaintiff. Finally, Officer Chandler did nothing when Plaintiff reported 16 Officer Shipton’s threat. The Court finds that these actions could arguably chill an inmate of 17 ordinary firmness from future First Amendment activities and do not appear to have legitimate 18 correctional goals. See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (holding that a threat 19 of retaliation is sufficient to constitute an adverse action if the threat is made in retaliation for an 20 inmate’s use of the grievance procedures). Therefore, this claim will proceed against Defendants 21 Taylor, Chandler, and Shipton. 22 23 III. CONCLUSION 24 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma pauperis 25 (ECF No. 6) is GRANTED. Plaintiff shall not be required to pay an initial installment of the filing 26 fee. In the event this action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. 27 § 1915(b)(2). 1 Plaintiff is permitted to maintain this action to conclusion without the necessity of 2 prepayment of any additional fees or costs or the giving of security therefor. 3 IT IS FURTHER ORDERED that under 28 U.S.C. § 1915, the Nevada Department of 4 Corrections will forward payments from the account of Alex Blaxon, 1267286 to the Clerk of the 5 United States District Court, District of Nevada, 20% of the preceding month's deposits (in months 6 that the account exceeds $10.00) until the full $350 filing fee has been paid for this action. The 7 Clerk of the Court will send a copy of this order to the Finance Division of the Clerk’s Office. The 8 Clerk will send a copy of this order to the attention of Chief of Inmate Services for the Nevada 9 Department of Corrections at formapauperis@doc.nv.gov. 10 IT IS FURTHER ORDERED that the FAC is the operative complaint (ECF No. 9). The 11 Clerk of the Court shall send Plaintiff a courtesy copy of it. 12 IT IS FURTHER ORDERED that Plaintiff’s Fourth Amendment strip-search claim will 13 proceed against Defendant Taylor. 14 IT IS FURTHER ORDERED that Plaintiff’s First Amendment retaliation claim will 15 proceed against Defendants Taylor, Chandler, and Shipton. 16 The Court requests that Defendants Taylor, Chandler, and Shipton waive service of 17 summons and of the FAC by executing, or having counsel execute, a Waiver of Service of 18 Summons. See Fed. R. Civ. P. 4(d). Such Waiver must be filed with the Court within 30 days of 19 the issuance of this order. If these Defendant(s) choose to return the Waiver of Service of 20 Summons, their answer or other appropriate response to the FAC (ECF No. 9) will be due within 21 60 days of the issuance of this order. See Fed. R. Civ. P. 12(a)(1)(A)(ii); see also 42 U.S.C. § 22 1997e(g)(2). 23 /// 24 /// 25 /// 26 /// 27 /// 1 The Court instructs the Clerk’s Office to mail one copy of the following documents to 2 || Defendants Taylor, Chandler, and Shipton: 3 a. the FAC (ECF No. 9); and 4 b. this order which includes the Notice of Lawsuit and Request to Waive Service of 5 Summons; and the Waiver of Service of Summons form. 6 7 || DATED: December 12, 2024 AS 8 er RICHARD F. BOULWARE, II 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ALEX BLAXON, Case No. 2:23-cv-02145-RFB-BNW 5 Plaintiff, RULE 4 NOTICE OF A LAWSUIT AND v. REQUEST TO WAIVE SERVICE OF 6 SUMMONS

7 THE STATE OF NEVADA, et al.,

8 Defendants. 9 TO: Defendant(s) Taylor, Chandler, and Shipton____ 10 c/o Las Vegas Metropolitan Police Department 400 S. Martin Luther King Blvd., Bldg. B 11 Las Vegas, NV 89106

12 A lawsuit has been filed against you or individuals/entities which you represent in this 13 Court under the number shown above. A copy of the FAC (ECF No. 9) is attached. This is not a 14 summons or an official notice from the Court. It is a request that—to avoid the cost of service by 15 the United States Marshals Service—Defendant(s) waive formal service of a summons by signing 16 and returning the enclosed waiver. To avoid these expenses, Defendant(s) must file the signed 17 waiver within 30 days from the date shown below, which is the date this notice was sent. If you file the signed waiver, the action will then proceed as if Defendant(s) were served 18 on the date the waiver is filed, but no summons will be served, and Defendant(s) will have 60 days 19 from the date this notice is sent to answer the FAC. If Defendant(s) do not return the signed waiver 20 within the time indicated, the Court will order the United States Marshals Service to personally 21 serve the summons and FAC on Defendant(s) and may impose the full costs of such service. Please 22 read the statement below about the duty to avoid unnecessary expenses. 23 Dated: December 12, 2024 24 ______________________________ 25 United States District Judge 26

27 1 Duty to Avoid Unnecessary Expenses of Serving a Summons 2 Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in 3 saving unnecessary expenses of serving a summons and FAC. A defendant who is located in the 4 United States and who fails to return a signed waiver of service requested by a plaintiff located in 5 the United States will be required to pay the expenses of service, unless the defendant shows good 6 cause for the failure. 7 “Good cause” does not include a belief that the lawsuit is groundless, or that it has been 8 brought in an improper venue, or that the Court has no jurisdiction over this matter or over a 9 defendant or a defendant’s property. 10 If the waiver is signed and filed, you can still make these and all other defenses and 11 objections, but you cannot object to the absence of a summons or of service. 12 If you waive service, then you must—within the time specified on the waiver form—serve 13 an answer or a motion under Rule 12 on the plaintiff and file a copy with the Court. By signing 14 and returning the waiver form, you are allowed more time to respond than if a summons had been 15 served. 16

17 18 19 20 21 22 23 24 25 26 27 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ALEX BLAXON, Case No. 2:23-cv-02145-RFB-BNW 5 Plaintiff, RULE 4 WAIVER OF SERVICE OF v. SUMMONS 6

8 Defendants. 9 TO: The United States District Court for the District of Nevada 10 11 The following Defendant(s) acknowledge receipt of your request to waive service of 12 summons in this case. Defendant(s) also received a copy of the FAC (ECF No. 9). I am authorized 13 by the following Defendant(s) to agree to save the cost of service of a summons and an additional 14 copy of the FAC in this action by not requiring that the following be served with judicial process 15 in the case provided by Rule 4 of the Federal Rules of Civil Procedure: 16 17 ____________________________; _____________________________;

18 ____________________________; _____________________________; 19

20 ____________________________; _____________________________; 21

22 ____________________________; _____________________________; 23

24 The above-named Defendant(s) understand that they will keep all defenses or objections 25 to the lawsuit, the Court’s jurisdiction, and the venue of the action, but waive any objections to the 26 absence of a summons or of service. Defendant(s) also understand that they must file and serve 27 an answer or a motion under Rule 12 within 60 days from the date when the Request for Waiver 1 of Service of Summons was filed and that default judgment will be entered against them if they 2 fail to do so. 3 Date: _________________________

4 ___________________________ (Signature of the attorney or 5 unrepresented party)

7 ___________________________ (Printed name) 8

9 ___________________________ (Address) 10

11 ___________________________ 12 (E-mail address)

14 ___________________________ (Telephone number) 15 16 17 18 19 20 21 22 23 24 25 26 27