1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 DAMON R. JOHNSON, Case No. 2:21-cv-01450-GMN-EJY
4 Plaintiff, SCREENING ORDER v. 5 NEVADA DEPARTMENT OF 6 CORRECTIONS, et al.,
7 Defendants.
8 Plaintiff, who was formerly incarcerated in the custody of the Nevada Department 9 of Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 10 1983 and an application to proceed without prepayment of fees or costs. (ECF Nos. 1, 11 1-1.) Based on the financial information provided, the Court grants Plaintiff’s application 12 to proceed without prepayment of fees or costs under 28 U.S.C. § 1915(a)(1).1 The Court 13 now screens Plaintiff’s complaint pursuant to 28 U.S.C. § 1915. 14 I. SCREENING STANDARD 15 “[T]he court shall dismiss the case at any time if the court determines that . . . the 16 action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may 17 be granted; or (iii) seeks monetary relief against a defendant who is immune from such 18 relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). This provision applies to all actions filed in forma 19 pauperis, whether or not the plaintiff is incarcerated. See Lopez v. Smith, 203 F.3d 1122, 20 1129 (9th Cir. 2000); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam). 21 Dismissal of a complaint for failure to state a claim upon which relief may be 22 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 23 1915(e)(2)(B)(ii) tracks that language. Thus, when reviewing the adequacy of a complaint 24 under 28 U.S.C. § 1915(e)(2)(B)(ii), the court applies the same standard as is applied 25 under Rule 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The 26 27 1 Plaintiff is not subject to the requirements of 28 U.S.C. § 1915(a)(2), (b) because 28 1 standard for determining whether a plaintiff has failed to state a claim upon which relief 2 can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil 3 Procedure 12(b)(6) standard for failure to state a claim.”). Review under 12(b)(6) is 4 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 5 723 (9th Cir. 2000). 6 In reviewing the complaint under this standard, the court must accept as true the 7 allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve 8 all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 9 Allegations in pro se complaints are “held to less stringent standards than formal 10 pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation 11 marks and citation omitted). 12 A complaint must contain more than a “formulaic recitation of the elements of a 13 cause of action,” it must contain factual allegations sufficient to “raise a right to relief 14 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 15 “The pleading must contain something more . . . than . . . a statement of facts that merely 16 creates a suspicion [of] a legally cognizable right of action.” Id. (quoting 5 C. Wright & A. 17 Miller, Federal Practice & Procedure § 1216, at 235-36 (3d ed. 2004)). At a minimum, a 18 plaintiff should state “enough facts to state a claim to relief that is plausible on its face.” 19 Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 “A pro se litigant must be given leave to amend his or her complaint, and some 21 notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint 22 could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 23 1995). 24 II. SCREENING OF COMPLAINT 25 In the complaint, Plaintiff sues multiple Defendants for events that took place while 26 he was incarcerated at Southern Desert Correctional Center (“SDCC”). (ECF No. 1-1 at 27 /// 28 /// 1 1.) Plaintiff sues Defendants NDOC,2 Moran, Charles Daniels, and Aaron Ford. (Id. at 2 1-3.) Plaintiff brings three counts and seeks monetary and injunctive relief. (Id. at 3-10.) 3 The complaint alleges the following: On June 22, 2020, Plaintiff was transferred to 4 SDCC. (Id. at 4.) Upon his arrival, Plaintiff had only the clothes on his back. (Id.) Plaintiff 5 asked the officers in his unit and the sergeant of property to bring him fresh clothes after 6 he showered. (Id.) Plaintiff went nine days without a change of clothes. (Id.) Plaintiff 7 was told that the property sergeant was not in or that she was on vacation. (Id.) Staff 8 also told Plaintiff that the laundry was broken. (Id.) Staff used COVID-19, as an excuse 9 to disregard Plaintiff’s hygiene. (Id.) 10 With temperatures over 90 degrees, Plaintiff needed fresh clothes and underwear. 11 (Id.) Plaintiff had to cover himself with a sheet and wash his clothes by hand and then 12 hang them on his bed to dry. (Id. at 6.) Plaintiff filed grievances about the issue, but his 13 grievances were denied. (Id. at 5.) 14 Based on these allegations, Plaintiff brings an Eighth Amendment conditions of 15 confinement claim. (Id. at 4-6.) The “treatment a prisoner receives in prison and the 16 conditions under which he is confined are subject to scrutiny under the Eighth 17 Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). Conditions of confinement 18 may, consistent with the Constitution, be restrictive and harsh. Rhodes v. Chapman, 452 19 U.S. 337, 347 (1981). However, “[p]rison officials have a duty to ensure that prisoners 20 are provided adequate shelter, food, clothing, sanitation, medical care, and personal 21 safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). 22 When determining whether the conditions of confinement meet the objective prong 23 of the Eighth Amendment analysis, the court must analyze each condition separately to 24 determine whether that specific condition violates the Eighth Amendment. See Wright v. 25 2 The Court dismisses, with prejudice, all claims against NDOC because NDOC is 26 an arm of the State of Nevada and is not a “person” for purposes of 42 U.S.C. § 1983. See Doe v. Lawrence Livermore Nat.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 DAMON R. JOHNSON, Case No. 2:21-cv-01450-GMN-EJY
4 Plaintiff, SCREENING ORDER v. 5 NEVADA DEPARTMENT OF 6 CORRECTIONS, et al.,
7 Defendants.
8 Plaintiff, who was formerly incarcerated in the custody of the Nevada Department 9 of Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 10 1983 and an application to proceed without prepayment of fees or costs. (ECF Nos. 1, 11 1-1.) Based on the financial information provided, the Court grants Plaintiff’s application 12 to proceed without prepayment of fees or costs under 28 U.S.C. § 1915(a)(1).1 The Court 13 now screens Plaintiff’s complaint pursuant to 28 U.S.C. § 1915. 14 I. SCREENING STANDARD 15 “[T]he court shall dismiss the case at any time if the court determines that . . . the 16 action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may 17 be granted; or (iii) seeks monetary relief against a defendant who is immune from such 18 relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). This provision applies to all actions filed in forma 19 pauperis, whether or not the plaintiff is incarcerated. See Lopez v. Smith, 203 F.3d 1122, 20 1129 (9th Cir. 2000); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam). 21 Dismissal of a complaint for failure to state a claim upon which relief may be 22 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 23 1915(e)(2)(B)(ii) tracks that language. Thus, when reviewing the adequacy of a complaint 24 under 28 U.S.C. § 1915(e)(2)(B)(ii), the court applies the same standard as is applied 25 under Rule 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The 26 27 1 Plaintiff is not subject to the requirements of 28 U.S.C. § 1915(a)(2), (b) because 28 1 standard for determining whether a plaintiff has failed to state a claim upon which relief 2 can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil 3 Procedure 12(b)(6) standard for failure to state a claim.”). Review under 12(b)(6) is 4 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 5 723 (9th Cir. 2000). 6 In reviewing the complaint under this standard, the court must accept as true the 7 allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve 8 all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 9 Allegations in pro se complaints are “held to less stringent standards than formal 10 pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation 11 marks and citation omitted). 12 A complaint must contain more than a “formulaic recitation of the elements of a 13 cause of action,” it must contain factual allegations sufficient to “raise a right to relief 14 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 15 “The pleading must contain something more . . . than . . . a statement of facts that merely 16 creates a suspicion [of] a legally cognizable right of action.” Id. (quoting 5 C. Wright & A. 17 Miller, Federal Practice & Procedure § 1216, at 235-36 (3d ed. 2004)). At a minimum, a 18 plaintiff should state “enough facts to state a claim to relief that is plausible on its face.” 19 Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 “A pro se litigant must be given leave to amend his or her complaint, and some 21 notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint 22 could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 23 1995). 24 II. SCREENING OF COMPLAINT 25 In the complaint, Plaintiff sues multiple Defendants for events that took place while 26 he was incarcerated at Southern Desert Correctional Center (“SDCC”). (ECF No. 1-1 at 27 /// 28 /// 1 1.) Plaintiff sues Defendants NDOC,2 Moran, Charles Daniels, and Aaron Ford. (Id. at 2 1-3.) Plaintiff brings three counts and seeks monetary and injunctive relief. (Id. at 3-10.) 3 The complaint alleges the following: On June 22, 2020, Plaintiff was transferred to 4 SDCC. (Id. at 4.) Upon his arrival, Plaintiff had only the clothes on his back. (Id.) Plaintiff 5 asked the officers in his unit and the sergeant of property to bring him fresh clothes after 6 he showered. (Id.) Plaintiff went nine days without a change of clothes. (Id.) Plaintiff 7 was told that the property sergeant was not in or that she was on vacation. (Id.) Staff 8 also told Plaintiff that the laundry was broken. (Id.) Staff used COVID-19, as an excuse 9 to disregard Plaintiff’s hygiene. (Id.) 10 With temperatures over 90 degrees, Plaintiff needed fresh clothes and underwear. 11 (Id.) Plaintiff had to cover himself with a sheet and wash his clothes by hand and then 12 hang them on his bed to dry. (Id. at 6.) Plaintiff filed grievances about the issue, but his 13 grievances were denied. (Id. at 5.) 14 Based on these allegations, Plaintiff brings an Eighth Amendment conditions of 15 confinement claim. (Id. at 4-6.) The “treatment a prisoner receives in prison and the 16 conditions under which he is confined are subject to scrutiny under the Eighth 17 Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). Conditions of confinement 18 may, consistent with the Constitution, be restrictive and harsh. Rhodes v. Chapman, 452 19 U.S. 337, 347 (1981). However, “[p]rison officials have a duty to ensure that prisoners 20 are provided adequate shelter, food, clothing, sanitation, medical care, and personal 21 safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). 22 When determining whether the conditions of confinement meet the objective prong 23 of the Eighth Amendment analysis, the court must analyze each condition separately to 24 determine whether that specific condition violates the Eighth Amendment. See Wright v. 25 2 The Court dismisses, with prejudice, all claims against NDOC because NDOC is 26 an arm of the State of Nevada and is not a “person” for purposes of 42 U.S.C. § 1983. See Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997); Black v. 27 Nevada Dep’t of Corr., 2:09-cv-2343-PMP-LRL, 2010 WL 2545760, *2 (D. Nev. June 21, 28 2010). As such, Plaintiff cannot state a § 1983 claim against NDOC, and amendment 1 Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981). As to the subjective prong of the Eighth 2 Amendment analysis, prisoners must establish prison officials’ “deliberate indifference” to 3 the unconstitutional conditions of confinement to establish an Eighth Amendment 4 violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). When considering the conditions 5 of confinement, the court should consider the amount of time to which the prisoner was 6 subjected to the condition. Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). 7 The Court finds that Plaintiff fails to state a colorable conditions of confinement 8 claim. The complaint does not include any allegations about any of the Defendants. It 9 appears from the complaint that Defendant Moran was the property sergeant. Although 10 the complaint briefly mentions Plaintiff asking the property sergeant for a change of 11 clothing, it also states that Plaintiff was consistently told that the property sergeant was 12 either not available or on vacation. As such, it is not clear whether Plaintiff ever actually 13 spoke to Moran directly or Plaintiff spoke to other staff members who indicated that Moran 14 was responsible for handling clothing problems. Thus, it is not clear from the complaint 15 whether Moran even knew about Plaintiff’s need for a change of clothing. 16 Although the complaint is not clear, Plaintiff may be attempting to bring a claim 17 against Moran based on her supervisory role as the property sergeant. It appears that 18 Plaintiff is also attempting to bring claims against Charles Daniels and Aaron Ford based 19 on their roles as supervisors. But a defendant is liable under 42 U.S.C. § 1983 “only upon 20 a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 21 (9th Cir. 1989). “A supervisor is only liable for constitutional violations of his subordinates 22 if the supervisor participated in or directed the violations, or knew of the violations and 23 failed to act to prevent them. There is no respondeat superior liability under [§]1983.” Id.; 24 see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (holding that “[b]ecause vicarious 25 liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each 26 Government-official defendant, through the official’s own individual actions, has violated 27 the Constitution”). 28 /// 1 Plaintiff does not allege that Defendants Moran, Daniels, or Ford either directed 2 staff not to give Plaintiff a change of clothing, or that any of these Defendants knew about 3 the failure to provide Plaintiff a change of clothing and failed to act. As such, the complaint 4 fails to state a colorable claim against any Defendant, and the Court dismisses the 5 complaint without prejudice and with leave to amend. 6 Furthermore, the Court notes that the allegations in the complaint do rise to the 7 level of a constitutional violation. See McCrea v. Pfeiffer, 1:18-CV-00458-LJO, 2018 WL 8 2441587, at *3 (E.D. Cal. May 31, 2018) (explaining that “nine days without a change of 9 clothes does not suggest an ‘extreme deprivation’ or a deprivation of life’s necessities 10 sufficiently grave to form the basis of an Eighth Amendment claim.”); cf. Jones v. Shinn, 11 14-CV-00231-LEK, 2014 WL 3663769, at *5 (D. Haw. July 21, 2014) (explaining that 12 allowing an inmate only 1 change of clothes every five days for three months did not 13 deprive the inmate of the minimal necessities of life and did not support an Eighth 14 Amendment claim). The allegation that Plaintiff did not receive a change of clothing for 15 nine days, without more, is not sufficient to support an Eighth Amendment claim. 16 III. LEAVE TO AMEND 17 If Plaintiff chooses to file an amended complaint, he is advised that an amended 18 complaint supersedes (replaces) the original complaint and, thus, the amended complaint 19 must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 20 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the 21 original complaint is irrelevant; an amended pleading supersedes the original”); see also 22 Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims 23 dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent 24 amended complaint to preserve them for appeal). Plaintiff’s amended complaint must 25 contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in 26 this lawsuit. Moreover, Plaintiff should file the amended complaint on this Court’s 27 approved prisoner civil rights form, and it must be entitled “First Amended Complaint.” 28 /// 1 The Court notes that if Plaintiff chooses to file an amended complaint curing the 2 deficiencies, as outlined in this order, Plaintiff will file the amended complaint within 30 3 days from the date of entry of this order. If Plaintiff chooses not to file an amended 4 complaint curing the stated deficiencies, this action will be dismissed with prejudice for 5 failure to state a claim. 6 IV. CONCLUSION 7 For the foregoing reasons, it is ordered that Plaintiff’s application to proceed in 8 district court without prepaying fees or costs (ECF No. 1) is granted. Plaintiff is permitted 9 to maintain this action to conclusion without the necessity of prepayment of any additional 10 fees or costs or the giving of security therefor. 11 It is further ordered that the Clerk of the Court file Plaintiff’s complaint (ECF No. 1- 12 1) and send Plaintiff a courtesy copy of the complaint. 13 It is further ordered that Plaintiff’s Eighth Amendment conditions of confinement 14 claim is dismissed without prejudice and with leave to amend. 15 It is further ordered that Defendant Nevada Department of Corrections is dismissed 16 from the entirety of this case with prejudice, as amendment would be futile. 17 It is further ordered that Defendants Moran, Charles Daniels, and Aaron Ford are 18 dismissed from the entirety of this case without prejudice. 19 It is further ordered that, if Plaintiff chooses to file an amended complaint curing 20 the deficiencies of his complaint, as outlined in this order, Plaintiff will file the amended 21 complaint within 30 days from the date of entry of this order. 22 It is further ordered that the Clerk of the Court will send to Plaintiff the approved 23 form for filing a § 1983 complaint and instructions for the same. If Plaintiff chooses to file 24 an amended complaint, he should use the approved form and he will write the words “First 25 Amended” above the words “Civil Rights Complaint” in the caption. 26 It is further ordered that, if Plaintiff chooses to file an amended complaint, the Court 27 will screen the amended complaint in a separate screening order. The screening process 28 will take several months. 1 It is further ordered that, if Plaintiff chooses not to file an amended complaint curing 2 the stated deficiencies of the complaint, this action will be dismissed with prejudice for 3 failure to state a claim. 4 DATED THIS _1__day of December 2021. 5
6 Gloria M. Navarro, Judge 7 United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28