Hayes v. Dzurenda

Opinion

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DONOVAN HAYES, Case No. 3:20-cv-00686-MMD-WGC

Plaintiff, v. SCREENING ORDER JAMES DZURENDA, et al., Defendants. Plaintiff Donovan Hayes, who is in the custody of the Nevada Department of Corrections (“NDOC”), has submitted a First Amended civil rights complaint (“FAC”) pursuant to 42 U.S.C. § 1983, and has filed an application to proceed in forma pauperis (“IFP Application”). (ECF Nos. 1, 5.) The matter of the filing fee will be temporarily deferred. The Court now screens Hayes’ FAC under 28 U.S.C. § 1915A. Federal courts must conduct a preliminary screening in any case in which an incarcerated person seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States; and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. See id. Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Finally, all or part of a complaint filed by an incarcerated person may be dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). In his FAC, Hayes sues multiple Defendants for an incident that took place while Hayes was incarcerated at Southern Desert Correctional Center (SDCC). (ECF No. 5 at 1.) Hayes sues Defendants James Dzurenda (the director of NDOC), Jerry Howell (warden of SDCC), Frank Dreesen (an associate warden at SDCC), G. Piccinini (an associate warden at SDCC), and Harris (a correctional officer at SDCC). (Id. at 2-3.) Hayes brings two claims and seeks injunctive and monetary relief. (Id. at 5-9, 26.) Hayes alleges the following. On March 25, 2018, Hayes suffered a seizure while waiting for dental treatment at SDCC’s medical department. (Id. at 5.) He recalled trying to alert Harris. (Id.) While suffering from a grand mal seizure, Harris placed Hayes in handcuffs. (Id. at 6.) Hayes’ arm and shoulder were fractured. (Id.) Hayes suffered three more seizures while hand cuffed. (Id.) He then woke up at Centennial Hills Hospital, having already had surgery on his arm and shoulder. (Id.) Hayes learned of the above events from Correctional Officer Sanchez. (Id.) (Id.) Hayes was discharged without being able to perform ADLS and transferred to the High Desert State Prison (HDSP) infirmary. (Id. at 6-7.) On May 4, 2018, Hayes was x-rayed and examined by a specialist. (Id. at 7.) Hayes had a surgery on May 11, which included the installation of metal plates and screws into the shoulder. (Id.) On July 25, 2018, Hayes submitted an informal grievance seeking monetary compensation for the injury to his shoulder resulting from Harris’ use of force in restraining him. (Id. at 8, 10-12.) Piccinini responded to this informal grievance. (Id. at 8.) Hayes filed a first level grievance to appeal the denial of the informal grievance. (Id.) When he did not receive a timely response, Hayes filed his second level grievance. (Id. at 8-9.) Defendants Piccinini, Howell, and Dreesen handle the majority of grievances at SDCC. (Id. at 9.) Dzurenda is responsible for daily operations. (Id.) Based on these allegations, Hayes alleges that Defendant Harris used excessive force against him in violation of the Eighth Amendment and that he was denied an opportunity to exhaust his administrative grievance process, in violation of the Fourteenth Amendment. The Court will address each of these claims in turn. A. Eighth Amendment – Excessive Force When a prison official stands accused of using excessive physical force in violation of the cruel and unusual punishment clause of the Eighth Amendment, the question turns on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the purpose of causing harm. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton and unnecessary, it may also be proper to consider factors such as the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. See Hudson, 503 U.S. at 7. Although an inmate need not have suffered serious injury to bring an cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force. Id. at 9-10. Hayes has sufficiently alleged a cognizable claim that Harris used excessive force in violation of the Eighth Amendment. Hayes has adequately alleged that Harris used force against him while restraining him during his seizure. (ECF No. 5 at 6.) He has also sufficiently alleged that the force was more than de minimis, given his allegation that his arm and shoulder were fractured. (Id.) Hayes has further alleged that Harris used handcuffs to restrain Hayes while Hayes was suffering from a grand mal seizure. (Id.) The Court will permit this claim to proceed. B. Fourteenth Amendment – Denial of Access to Grievance Procedures Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 346 (1996). To establish a violation of the right of access to the courts, a prisoner must establish that he or she has suffered “actual injury.” Id. at 349. The actual- injury requirement mandates that an inmate “demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.” Id. at 353. “The right of meaningful access to the courts extends to established prison grievance procedures.” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001). “[T]he object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.” Christopher v. Harbury, 536 U.S. 403, 413 (2002). Hayes has not stated a cognizable claim for denial of access to prison grievance procedures in violation of the Fourteenth Amendment. The claim is deficient because Hayes has not alleged an actual injury. Rather, Hayes’ allegations detail his efforts to exhaust the prison grievance process regarding the substantive claims he has brought in this matter. (ECF No. 5 at 8-9.) The claim is also deficient because Hayes has not identified any impediment in the grievance process that still needs to be removed. As the the claim without prejudice but without leave to amend. It is therefore ordered that Hayes’ application to proceed in forma pauperis (ECF No. 1) is deferred. It is further ordered that the First Amended Complaint (ECF No. 5) is the operative complaint. The Clerk of Court is directed to send a courtesy copy of the First Amended Complaint to Hayes. It is further ordered that Count 1 (Eighth Amendment – Excessive Force) may proceed against Defendant Harris. It is further ordered that Count 2 (Denial of Access to Prison Grievance Process) is dismissed without prejudice and without leave to amend. It is further ordered that Defendants James Dzurenda, Jerry Howell, Frank Dreesen, and G. Piccinini are dismissed from the First Amended Complaint without prejudice. It is further ordered that, given the nature of the claim that the Court has permitted to proceed, this action is stayed for 90 days to allow Hayes and Defendant an opportunity to settle their dispute before the $350.00 filing fee is paid, an answer is filed, or the discovery process begins. During this 90-day stay period and until the Court lifts the stay, no other pleadings or papers may be filed in this case, and the parties may not engage in any discovery, nor are the parties required to respond to any paper filed in violation of the stay unless specifically ordered by the Court to do so. The Court will refer this case to the Court’s Inmate Early Mediation Program, and the Court will enter a subsequent order. Regardless, on or before 90 days from the date this order is entered, the Office of the Attorney General must file the report form attached to this order regarding the results of the 90-day stay, even if a stipulation for dismissal is entered prior to the end of the 90- day stay. If the parties proceed with this action, the Court will then issue an order setting a date for Defendants to file an answer or other response. Following the filing of an deadlines. It is further ordered that “settlement” may or may not include payment of money damages. It also may or may not include an agreement to resolve Hayes’ issues differently. A compromise agreement is one in which neither party is completely satisfied with the result, but both have given something up and both have obtained something in return. It is further ordered that if the case does not settle, Hayes will be required to pay the full $350.00 filing fee. This fee cannot be waived, and the fee cannot be refunded once the Court enters an order granting Hayes’ application to proceed in forma pauperis. If the Court allows Hayes to proceed in forma pauperis, the fee will be paid in installments from his prison trust account. See 28 U.S.C. § 1915(b). If the Court does not allow Hayes to proceed in forma pauperis, the full $402 filing fee for a civil action (i.e., the $350 filing fee and the $52 administrative fee) will be due immediately. It is further ordered that if any party seeks to have this case excluded from the inmate mediation program, that party must file a “motion to exclude case from mediation” no later than 21 days prior to the date set for mediation. The responding party will have seven days to file a response. No reply may be filed. Thereafter, the Court will issue an order, set the matter for hearing, or both. The Clerk of Court is directed to electronically serve a copy of this order, and a copy of Hayes’ First Amended Complaint (ECF No. 5), on the Office of the Attorney General of the State of Nevada, by adding the Attorney General of the State of Nevada to the docket sheet. This does not indicate acceptance of service. It is further ordered that the Attorney General’s Office must advise the Court within 21 days of the date of the entry of this order whether it will enter a limited notice of appearance on behalf of Defendants for the purpose of settlement. No defenses or /// 1 objections, including lack of service, will be waived as a result of the filing of the limited notice of appearance. DATED THIS 2"¢ Day of December 2021. MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

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Plaintiff,

v.

JAMES DZURENDA, et al.,

Defendants.

NOTE: ONLY THE OFFICE OF THE ATTORNEY GENERAL WILL FILE THIS FORM. THE INMATE PLAINTIFF MAY NOT FILE THIS FORM.

On ________________ [the date of the issuance of the screening order], the Court issued its screening order stating that it had conducted its screening pursuant to 28 U.S.C. § 1915A, and that certain specified claims in this case would proceed. The Court ordered the Office of the Attorney General of the State of Nevada to file a report 90 days after the date of the entry of the Court’s screening order to indicate the status of the case at the end of the 90-day stay. By filing this form, the Office of the Attorney General hereby complies. REPORT FORM

[Identify which of the following two situations (identified in bold type) describes the case, and follow the instructions corresponding to the proper statement.]

Situation One: Mediated Case: The case was assigned to mediation by a court- appointed mediator during the 90-day stay. [If this statement is accurate, check ONE of the six statements below and fill in any additional information as required, then proceed to the signature block.] A mediation session with a court-appointed mediator was held on [enter date], and as of this date, the parties have reached a settlement (even if paperwork to memorialize the settlement remains to be completed). (If this box is checked, the parties are on notice that they must SEPARATELY file either a contemporaneous stipulation of dismissal or a motion which they will file a stipulation of dismissal.) A mediation session with a court-appointed mediator was held on [enter date], and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.

No mediation session with a court-appointed mediator was held during the 90-day stay, but the parties have nevertheless settled the case. (If this box is checked, the parties are on notice that they must SEPARATELY file a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in this case until a specified date upon which they will file a stipulation of dismissal.) No mediation session with a court-appointed mediator was held during the 90-day stay, but one is currently scheduled for [enter date].

No mediation session with a court-appointed mediator was held during the 90-day stay, and as of this date, no date certain has been scheduled for such a session.

None of the above five statements describes the status of this case. Contemporaneously with the filing of this report, the Office of the Attorney General of the State of Nevada is filing a separate document detailing the status of this case. * * * * * Situation Two: Informal Settlement Discussions Case: The case was NOT assigned to mediation with a court-appointed mediator during the 90-day stay; rather, the parties were encouraged to engage in informal settlement negotiations. [If this statement is accurate, check ONE of the four statements below and fill in any additional information as required, then proceed to the signature block.] The parties engaged in settlement discussions and as of this date, the parties have reached a settlement (even if the paperwork to memorialize the settlement remains to be completed). (If this box is checked, the parties are on notice that they must SEPARATELY file either a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in this case until a specified date upon which they will file a stipulation of dismissal.)

The parties engaged in settlement discussions and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.

The parties have not engaged in settlement discussions and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.

None of the above three statements fully describes the status of this case. Contemporaneously with the filing of this report, the Office of the Attorney General of the State of Nevada is filing a separate document detailing the status of this case. /// Attorney Name: _______________________ _________________________ Print Signature

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