Martell v. Kahbro

• Court: District Court, D. Nevada
• Decided: April 13, 2022
• Docket: 2:21-cv-01733
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Leandre Martell, Case No. 2:21-cv-01733-JAD-DJA

5 Plaintiff v. 6 Order Screening Las Vegas Metropolitan Police Department, First Amended Complaint 7 et al., [ECF No. 6] 8 Defendants

9 10 Plaintiff Leandre Martell brings this civil-rights action under 42 U.S.C. § 1983, claiming 11 that his constitutional rights were violated and that he experienced medical malpractice during 12 his time at the Clark County Detention Center (CCDC). Martell applies to proceed in forma 13 pauperis.1 I grant that application and screen his first amended complaint under 28 U.S.C. 14 § 1915A. Having done so, I find that Martell has pled a colorable First Amendment retaliation 15 claim, but the other claims are lacking. So I dismiss the state-law medical malpractice claim 16 without prejudice but without leave to amend, and I dismiss the Fourteenth Amendment verbal 17 harassment claim with prejudice. I dismiss the remaining claims with leave to amend by May 18 13, 2022. 19 20 21 22 23

1 ECF No. 5. 1 Background 2 A. Plaintiff’s factual allegations2 3 In June 2021, Martell was a pretrial detainee at CCDC.3 On June 10, 2021, Officer 4 Chandler “verbally assaulted and harassed” Martell in front of sixty or seventy inmates, calling

5 him “slandering names” and using “derogatory terms of unhuman-like references.”4 To prevent 6 his fellow officers from overhearing the harassment, Chandler turned off his walkie-talkie.5 He 7 then “invaded [Martell’s] personal space without his mask” and told Martell to “jump!”6 8 At some point after this incident, Chandler falsified official documents in order to accuse 9 Martell of creating a “major dorm disturbance.”7 As a result, Martell suffered a loss of 10 programming and harsher living conditions.8 Since the altercation, Martell has required mental- 11 health evaluations and treatment.9 12 Seeking redress for Chandler’s misconduct, Martell contacted “Internal Affairs” and the 13 “Citizen’s Review Board,” both of which opened investigations into Chandler.10 But Chandler 14 continued to “harass” Martell and began “isolat[ing]” him from other inmates.11 Chandler also 15 “vigorously interrogate[d]” him, made “threatening or bribing gestures,” and labelled him a 16

2 This is merely a summary of facts alleged in the first amended complaint and should not be 17 construed as findings of fact. 18 3 ECF No. 6 at 4. 4 Id. 19 5 Id. 20 6 Id. 21 7 Id. 8 Id. 22 9 Id. 23 10 Id. at 4–5. 11 Id. at 5. 1 “snitch.”12 To “ensure [his] safety,” Martell accepted a plea deal for “prison time” when he 2 should have received probation.13 3 Martell also experienced mistreatment at the hands of Officer Khabro.14 On June 17, 4 2021, Khabro falsely accused Martell of creating a major dorm disturbance and threatening to

5 “kick [Khabro’s] ass.”15 As a result of these false charges, Martell was placed in solitary 6 confinement.16 Martell was taken to a hallway and placed in handcuffs and waist restraints that 7 were too tight.17 Martell was then forced to sleep for six hours on a wooden bench in a single- 8 man cell.18 During this time, Martell remained restrained, which prevented him from using the 9 bathroom.19 Martell complained about this incident to Internal Affairs and the Citizen’s Review 10 Board.20 11 The tight handcuffs caused a “significant wrist injury.”21 Martell sought medical 12 treatment for two months before he was able to see a doctor.22 During those two months, he 13 repeatedly requested an examination of his right wrist, explaining that he could not “apply 14 pressure,” lift heavy items, or perform a push up without falling on his face.23 These requests

16 12 Id. 13 Id. 17 14 Id. at 6. 18 15 Id. 16 Id. 19 17 Id. 20 18 Id. 21 19 Id. 20 Id. 22 21 Id. 23 22 Id. 23 Id. at 8. 1 were ignored or “thrown in the trash.”24 When Martell finally saw a doctor, an x-ray was taken 2 and he received medication.25 The doctor told Martell that “it shouldn’t have taken so long to be 3 seen,” and that because his wrist had healed “incorrectly,” he would not be able to “properly” use 4 his wrist or perform “day to day activities” for at least a year.26

5 Martell was charged for the visit in violation of Nevada law.27 For two months, he 6 sought a refund.28 The doctor told Martell that he had never been charged, so Martell was 7 charged again.29 “Medical” then told Martell that they did not have any of his kites and that his 8 account did not “show any charges.”30 9 B. Plaintiff’s causes of action 10 Based on these events, Martell sues the Las Vegas Metropolitan Police Department 11 (LVMPD), E. Khabro, D. Chandler, and a John Doe Contracted Medical Provider.31 Martell 12 asserts claims for Eighth Amendment cruel and unusual punishment, “medical indifference,” and 13 malpractice.32 Because Martell was a pretrial detainee at the time of the events described in the 14 first amended complaint, the Fourteenth Amendment—not the Eighth Amendment—governs his

15 right to be free from punishment.33 Thus, I liberally construe the first amended complaint as 16

17 24 Id. 18 25 Id. at 7–8. 26 Id. at 7. 19 27 Id. at 8. 20 28 Id. 21 29 Id. 30 Id. 22 31 Id. at 1–2. 23 32 Id. at 4–9. 33 See Vazquez v. Cty. of Kern, 949 F.3d 1153, 1163-64 (9th Cir. 2020). 1 bringing (1) Fourteenth Amendment claims based on verbal harassment, the denial of procedural 2 due process, excessive force, conditions of confinement, and inadequate medical care; (2) a First 3 Amendment retaliation claim; and (3) a state-law claim for medical malpractice. 4 Discussion

5 A. Screening standard 6 Federal courts must conduct a preliminary screening in any case in which a prisoner 7 seeks redress from a governmental entity or an officer or employee of a governmental entity.34 8 In its review, the court must identify any cognizable claims and dismiss any claims that are 9 frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary 10 relief from a defendant who is immune from such relief.35 All or part of the complaint may be 11 dismissed sua sponte if the prisoner’s claims lack an arguable basis in law or fact. This includes 12 claims based on legal conclusions that are untenable, like claims against defendants who are 13 immune from suit or claims of infringement of a legal interest which clearly does not exist, as 14 well as claims based on fanciful factual allegations or fantastic or delusional scenarios.36 15 Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot 16 prove any set of facts in support of the claim that would entitle him or her to relief.37 In making 17 this determination, the court takes all allegations of material fact as true and construes them in 18 the light most favorable to the plaintiff.38 Allegations of a pro se complainant are held to less 19 20 34 See 28 U.S.C. § 1915A(a). 21 35 See 28 U.S.C. § 1915A(b)(1)(2). 22 36 See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 23 37 See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). 38 See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 1 stringent standards than formal pleadings drafted by lawyers,39 but a plaintiff must provide more 2 than mere labels and conclusions.40 “While legal conclusions can provide the framework of a 3 complaint, they must be supported with factual allegations.”41 “Determining whether a 4 complaint states a plausible claim for relief . . . [is] a context-specific task that requires the

5 reviewing court to draw on its judicial experience and common sense.”42 6 B. Analysis of claims 7 1. Martell does not state a colorable verbal-harassment claim. 8 Verbal harassment or abuse is generally “not sufficient to state a constitutional 9 deprivation under 42 U.S.C. § 1983.”43 To state a Fourteenth Amendment claim based on a jail 10 official’s verbal harassment, a plaintiff must allege that the offending comments were “unusually 11 gross even for a prison setting and were calculated to and did cause him psychological 12 damage.”44 13 Martell fails to state a colorable claim for verbal harassment. He alleges that Chandler 14 “verbally assaulted and harassed” him in front of sixty or seventy inmates.45 Martell is vague

15 about the form this harassment took, alleging only that Chandler called him “slandering names” 16

17 39 Hughes v. Rowe, 449 U.S. 5, 9 (1980); see also Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (recognizing that pro se pleadings must be liberally construed). 18 40 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 19 41 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 42 Id. 20 43 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); see also Perez v. Azusa Police 21 Dep’t, No. 18-cv-08535, 2021 WL 1587935, at *10 (C.D. Cal. Jan. 25, 2021) (applying Oltarzewski to pretrial detainee), adopted by 2021 WL 1583893 (C.D. Cal. Mar. 9, 2021). 22 44 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996); see also Cooper v. Valdovinos, No. 17-cv- 2463, 2019 WL 7833904, at *3 (C.D. Cal. Dec. 12, 2019) (applying Keenan to pretrial detainee), 23 adopted by 2020 WL 528004 (C.D. Cal. Jan. 31, 2020). 45 ECF No. 6 at 4. 1 and used “derogatory terms of unhuman-like references.”46 Chandler also “invaded [Martell’s] 2 personal space without his mask” and told Martell to “jump!”47 These allegations describe 3 inappropriate and unprofessional conduct, but they do not support a reasonable inference that 4 Chandler’s comments were “unusually gross even for a prison setting and were calculated to and

5 did cause [Martell] psychological damage.”48 So I dismiss this claim with prejudice because 6 amendment would be futile. 7 2. Martell does not state a colorable procedural-due-process claim 8 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 9 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 10 that one of these interests is at stake.”49 Pretrial detainees retain “a protected liberty interest in 11 remaining free from any type of punishment, including disciplinary segregation.”50 They may 12 not be deprived of a liberty interest through the disciplinary process unless they receive the 13 procedural protections set forth in the U.S. Supreme Court’s decision in Wolff v. McDonnell.51 14 Those protections consist of (1) a written statement at least twenty-four hours before the

15 disciplinary hearing that includes the charges, a description of the evidence against the detainee, 16 and an explanation for the disciplinary action taken; (2) an opportunity to present documentary 17 evidence and call witnesses, unless calling witnesses would interfere with institutional security; 18 19

46 Id. 20 47 Id. 21 48 Keenan, 83 F.3d at 1092. 22 49 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). 50 Briggs v. Gallatin Cty., No. 18-cv-10, 2020 WL 2557740, at *5 (D. Mont. May 20, 2020) 23 (citing Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1996)). 51 Mitchell, 75 F.3d at 523; Wolff v. McDonnell, 418 U.S. 539 (1974). 1 and (3) legal assistance if the charges are complex or the inmate is illiterate.52 Inmates “have no 2 constitutionally guaranteed right to be free from false accusations of misconduct, so the mere 3 falsification of a report does not give rise to a claim under § 1983.”53 “As long as [an inmate] is 4 afforded procedural due process in the disciplinary hearing, allegations of a fabricated charge

5 generally fail to state a claim under [§] 1983.”54 6 Martell alleges that both Chandler and Khabro falsely accused him of creating a 7 disturbance in the dorm. As a result of the false charges, Martell was placed in solitary 8 confinement and lost certain privileges. These allegations are insufficient to state a colorable 9 procedural-due-process claim because Martell does not allege that he failed to receive the 10 required procedural protections during any of his disciplinary proceedings. Because I am not yet 11 convinced that Martell cannot allege facts to support this claim, I dismiss it without prejudice 12 and with leave to amend. 13 3. Martell does not state a colorable excessive-force claim. 14 In Kingsley v. Hendrickson, the Supreme Court held that a pretrial detainee states a claim

15 for excessive force under the Fourteenth Amendment if (1) the defendant’s use of force was 16 purposeful and knowing, and (2) the force purposely or knowingly used against the pretrial 17 detainee was objectively unreasonable.55 In determining whether the force used was objectively 18 unreasonable, courts may consider “the relationship between the need for the use of force and the 19 amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper 20 52 See Wolff, 418 U.S. at 563–70. 21 53 Johnson v. Felker, No. 12-cv-02719, 2013 WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013); see 22 also Johnson v. Berndt, No. 20-cv-00150, 2020 WL 7408720, at *4 (D. Nev. Dec. 17, 2020) (“Merely making false statements or bringing false charges is not a due-process violation.”). 23 54 Johnson, 2013 WL 6243280, at *6. 55 Kingsley v. Hendrickson, 576 U.S. 389, 396–97 (2015). 1 or to limit the amount of force; the severity of the security problem at issue; the threat reasonably 2 perceived by the officer; and whether the plaintiff was actively resisting.”56 “In the Ninth 3 Circuit, tight handcuffing can constitute excessive force,” especially where “the handcuffs 4 caused [a pretrial detainee] unnecessary pain.”57

5 Martell fails to state a colorable excessive-force claim. He alleges that, after being found 6 guilty of false charges, he was taken to a hallway and placed in handcuffs and waist restraints 7 that were too tight. He remained restrained for six hours, and the tight handcuffs severely 8 injured his wrist. Although these allegations could conceivably support an excessive-force 9 claim, they are insufficient as currently pled because Martell does not identify the individuals 10 (defendants or otherwise) who placed him in excessively tight restraints or identify any person 11 who refused to remove the restraints. A defendant is liable under § 1983 “only upon a showing 12 of personal participation” in the alleged constitutional violation.58 Because Martell does not tie 13 the allegations about cuffing to any particular person, he does not state a colorable claim. So I 14 dismiss this claim without prejudice and with leave to amend.

15 4. Martell does not state a colorable conditions-of-confinement claim. 16 A pretrial detainee’s claims challenging unconstitutional conditions of confinement fall 17 under the Fourteenth Amendment’s Due Process Clause.59 Courts evaluate Fourteenth 18 Amendment conditions of confinement claims under the objective deliberate-indifference 19 20

21 56 Id. at 397. 22 57 Gradford v. Stanislaus Pub. Safety Ctr., No. 17-cv-01248, 2019 WL 2420104, at *6 (E.D. Cal. June 10, 2019) (collecting cases), adopted by 2019 WL 3860135 (E.D. Cal. Aug. 16, 2019). 23 58 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 59 Gordon v. Cty. of Orange, 888 F.3d 1118, 1124 n.2 (9th Cir. 2018). 1 standard.60 To establish unconstitutional conditions of confinement, a plaintiff must prove that 2 (1) the defendant made an intentional decision with respect to the conditions under which the 3 plaintiff was confined; (2) the conditions were not necessary to serve the penological interest 4 related to the confinement of the pretrial detainee or the conditions were excessive as to the

5 particular penological purpose; (3) the conditions were objectively dehumanizing, uncivil, or 6 unsanitary; and (4) the defendant did not take reasonable steps to alleviate or remedy the 7 conditions.61 8 Martell fails to state a colorable conditions-of-confinement claim. Based on the 9 allegations, Martell was forced to sleep for six hours on a wooden bench in a single-man cell. 10 And because he remained in handcuffs and waist restraints, Martell was unable to use the 11 bathroom during this time. Martell’s allegation that he slept for six hours on a bench is 12 insufficient to establish a constitutional violation,62 and he can’t premise a conditions-of- 13 confinement claim on the allegation that he could not use a restroom for six hours.63 Finally, 14 Martell’s claim fails for the additional reason that he does not identify the individuals responsible

15 16 17

18 60 See id. (recognizing that “[t]he Second Circuit also recently extended the objective deliberate indifference standard to all conditions of confinement claims brought under the due process 19 clause of the Fourteenth Amendment”). 20 61 Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1068-71 (9th Cir. 2016); Gordon, 888 F.3d at 1125. 21 62 See Trammell v. McDonnell, No. 17-cv-5255, 2017 WL 11632456, at *6 (C.D. Cal. Oct. 25, 2017) (holding that pretrial detainee’s “allegations of . . . ‘hours’ sleeping on hard surfaces fail to 22 state a claim because they allege no more than de minimis harm”). 63 See Garcia v. Garcia, No. 17-cv-01313, 2018 WL 11257395, at *5 (E.D. Cal. May 31, 2018) 23 (holding that pretrial detainee’s “suggestion that he was in the holding cell for approximately 8 1/2 hours without restroom access or food is insufficient to state a claim”). 1 for the conditions in his cell.64 For these reasons, I dismiss this claim without prejudice and with 2 leave to amend. 3 5. Martell does not state a colorable claim for inadequate medical care. 4 Pretrial detainees may raise inadequate-medical-care claims under the Fourteenth

5 Amendment’s Due Process Clause.65 Courts evaluate these claims under an objective deliberate 6 indifference standard.66 The elements of a pretrial detainee’s Fourteenth Amendment inadequate 7 medical care claim are: 8 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those 9 conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available 10 measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 11 involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant 12 caused the plaintiff’s injuries.67

13 The third element requires the defendant’s conduct to be “objectively unreasonable,” a test that 14 turns on the facts and circumstances of each particular case.68 A plaintiff must “prove more than 15 negligence but less than subjective intent—something akin to reckless disregard.”69 16 Martell alleges that, after the incident in which he was placed in excessively tight 17 restraints, he repeatedly sought treatment for injuries to his right wrist. Those injuries were 18 serious enough that Martell could not apply pressure to his wrist, lift heavy items, or perform a 19

64 See Taylor, 880 F.2d at 1045 (holding that a defendant is liable under § 1983 “only upon a 20 showing of personal participation” in the alleged constitutional violation). 21 65 Gordon, 888 F.3d at 1124. 66 Id. at 1125. 22 67 Id. 23 68 Id. 69 Id. 1 push up without falling on his face. Martell’s requests were ignored or thrown away. When 2 Martell finally saw a doctor two months later, he learned that, because his wrist had healed 3 incorrectly, he would not be able to perform everyday activities for at least a year. These 4 allegations could conceivably form the basis of an inadequate medical care claim. The problem,

5 again, is that Martell does not identify the individuals responsible for the two-month delay in 6 medical treatment.70 Without allegations linking the delay to particular individuals, Martell 7 cannot state a colorable claim for inadequate medical care. I thus dismiss this claim without 8 prejudice and with leave to amend.71 9 6. Martell states a colorable First Amendment retaliation claim. 10 Inmates have a First Amendment right to file grievances and to pursue civil rights 11 litigation in the courts.72 “Without those bedrock constitutional guarantees, inmates would be 12 left with no viable mechanism to remedy prison injustices. And because purely retaliatory 13 actions taken against a prisoner for having exercised those rights necessarily undermine those 14 protections, such actions violate the Constitution quite apart from any underlying misconduct

15 they are designed to shield.”73 To state a First Amendment retaliation claim in the prison 16 context, a plaintiff must allege: “(1) [a]n assertion that a state actor took some adverse action 17

18 70 See Taylor, 880 F.2d at 1045 (holding that a defendant is liable under § 1983 “only upon a showing of personal participation” in the alleged constitutional violation). 19 71 To the extent that Martell seeks to assert a claim based on being charged a fee for medical 20 care, any such claim would fail. “Charging inmates for medical care does not violate the Constitution where medical care is not denied.” Edmundson v. Bowen, No. 13-cv-00032, 2014 21 WL 4104132, at *4 (D. Mont. Aug. 18, 2014) (citing Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1985)), aff’d sub nom. Edmundson v. Flathead Cty. Sheriff 22 Dep’t, 654 F. App’x 264 (9th Cir. 2016). Martell does not allege that he was denied treatment because of his inability to pay the fee. 23 72 Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). 73 Id. 1 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 2 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 3 advance a legitimate correctional goal.”74 Total chilling is not required to state a retaliation 4 claim; it is enough if an official’s acts would chill or silence a person of ordinary firmness from

5 future First Amendment activities.75 6 Martell states a colorable First Amendment retaliation claim. He alleges that he engaged 7 in protected activity by complaining to Internal Affairs and the Citizen’s Review Board about 8 Chandler’s alleged misconduct. In response, Chandler harassed and threatened him, including 9 by labelling him a “snitch.”76 As a result, Martell feared for his safety, ultimately accepting a 10 plea deal that resulted in “prison time” in order to escape from Chandler.77 These allegations are 11 sufficient to plead that, in retaliation for Martell’s protected activity, Chandler exposed Martell 12 to potential harm from other inmates by labelling him a snitch78--conduct that might deter an 13 ordinary inmate from pursuing First Amendment activities in the future.79 So Martell states a 14 colorable First Amendment retaliation claim, and it will proceed against Chandler.

15 16

17 74 Id. at 567–68. 18 75 Id. at 568–69. 76 ECF No. 6 at 5. 19 77 Id. 20 78 Florence v. Nangalama, No. 11-cv-3119, 2014 WL 3689362, at *11 (E.D. Cal. July 22, 2014) (“[U]se of the term ‘snitch’ in the prison setting is inflammatory and may pose a danger to an 21 inmate’s safety, distinguishing it from vulgarity or other offensive terms that constitute mere harassment.”), adopted by 2014 WL 4098150 (E.D. Cal. Aug. 18, 2014). 22 79 See Hammler v. Franklin, No. 18-cv-5525, 2019 WL 7842424, at *6 (C.D. Cal. Sept. 24, 2019) (“Calling a prisoner a ‘snitch’ in front of other prisoners in retaliation for filing grievances 23 may be sufficient to support a retaliation claim.” (citing Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989))), adopted by 2019 WL 7856764 (C.D. Cal. Dec. 19, 2019). 1 7. Martell does not state a colorable claim for medical malpractice. 2 Martell asserts a medical-malpractice claim. For such claims, Nevada Revised Statute 3 § 41A.071 requires that: 4 [T[he district court shall dismiss the action, without prejudice, if the action is filed without an affidavit that . . . [s]upports the 5 allegations contained in the action; . . . [i]s submitted by a medical expert who practices or has practiced in an area that is substantially 6 similar to the type of practice engaged in at the time of the alleged professional negligence; . . . [i]dentifies by name, or describes by 7 conduct, each provider of health care who is alleged to be negligent; and . . . [s]ets forth factually a specific act or acts of 8 alleged negligence separately as to each defendant in simple, concise and direct terms.80 9

10 A complaint that does not contain this affidavit “is void ab initio, meaning it is of no force and 11 effect.”81 Martell did not file the required affidavit, 82 so I dismiss the medical-malpractice claim 12 without prejudice but without leave to amend. 13 8. Martell does not state a colorable claim against the LVMPD. 14 Finally, Martell has failed to plead a colorable claim against the LVMPD. “The LVMPD 15 is a political subdivision of the state and may sue or be sued in its own name.”83 “To state a 16 colorable claim against the LVMPD, a plaintiff must allege a theory of municipal liability.”84 A 17 municipality may be found liable under 42 U.S.C. § 1983 only if the municipality itself causes 18 19 80 Nev. Rev. Stat. § 41A.071(1)–(4). 20 81 Washoe Med. Ctr. v. Second Judicial Dist. Court of State of Nev. ex rel. Cty. of Washoe, 148 P.3d 790, 794 (Nev. 2006) (“Because a complaint that does not comply with NRS 41A.071 is 21 void ab initio, it does not legally exist and thus it cannot be amended.”). 22 82 ECF No. 6. 83 Williams v. Las Vegas Metro. Police Dep’t, No. 16-cv-3020, 2019 WL 346400, at *5 (D. Nev. 23 Jan. 25, 2019) (citing Nev. Rev. Stat. § 280.280(4)). 84 Id. 1 the violation at issue.85 To state a claim for municipal or county liability, a plaintiff must allege 2 that he suffered a constitutional deprivation that was the product of a policy or custom of the 3 local government unit.86 “Official municipal policy includes the decisions of a government’s 4 lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to

5 practically have the force of law.”87 Municipalities are not vicariously liable under § 1983 for 6 their employees’ actions.88 7 A policy has been defined as “a deliberate choice to follow a course of action . . . made 8 from among various alternatives by the official or officials responsible for establishing final 9 policy with respect to the subject matter in question.”89 The weight of authority has established 10 that a “policy can be one of action or inaction” within the meaning of Monell.90 “Both types of 11 claims require that the plaintiff prove a constitutional violation.”91 Martell’s claims against the 12 LVMPD fail because he has not shown that any of the alleged constitutional violations resulted 13 from a policy or custom of the LVMPD. So I dismiss his claims against the LVMPD without 14 prejudice and with leave to amend.

15 C. Leave to amend 16 I have granted Martell leave to amend (1) the Fourteenth Amendment procedural-due- 17 process claim, (2) the Fourteenth Amendment excessive-force claim, (3) the Fourteenth 18 85 City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v. New York City 19 Dept. of Social Services, 436 U.S. 658 (1978)). 86 City of Canton, 489 U.S. at 385. 20 87 See Connick v. Thompson, 563 U.S. 51, 61 (2011). 21 88 Id. at 60. 22 89 Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing Monell, 436 U.S. at 690); see also Waggy v. Spokane Cty. Washington, 594 F.3d 707, 713 (9th Cir. 2010). 23 90 Waggy, 594 F.3d at 713 (citing City of Canton, 489 U.S. at 388). 91 Id. (citing 42 U.S.C. § 1983). 1 Amendment conditions-of-confinement claim, and (4) the Fourteenth Amendment inadequate- 2 medical-care claim. Martell may also amend to allege true facts showing that the alleged 3 constitutional violations resulted from a policy or custom of the LVMPD. Martell is cautioned 4 that these changes are the only ones permitted by this order, so he does not have leave to amend

5 in any way that he sees fit. I do not give Martell leave to assert new claims or to add other 6 defendants to the claim I have allowed to proceed. Martell is cautioned that the use of Doe 7 defendants is not favored in the Ninth Circuit,92 so he should attempt to determine an alleged bad 8 actor’s identity to properly name him or her as a defendant in this action. 9 If Martell chooses to file a second amended complaint, he is advised that a second 10 amended complaint replaces the first amended complaint, so the second amended complaint 11 must be complete in itself.93 He must file the second amended complaint on this court’s 12 approved prisoner-civil-rights form, and it must be entitled “Second Amended Complaint.” 13 Martell must follow the instructions on the form. He need not and should not allege very many 14 facts in the “nature of the case” section of the form. Rather, in each count, he should allege facts

15 sufficient to show what each defendant did to violate his civil rights. He must file the second 16 amended complaint by May 13, 2022. If Martell does not file a second amended complaint by 17 that deadline, this action will proceed only on the First Amendment retaliation claim against 18 Chandler. 19 20

21 92 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 93 See Hal Roach Studios, Inc., 896 F.2d at 1546 (holding that “[t]he fact that a party was named 22 in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed 23 with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). 1 Conclusion 2 IT IS THEREFORE ORDERED that the application to proceed in forma pauperis 3 without having to prepay the filing fee [ECF No. 5] is GRANTED. Martell need not pay an 4 initial installment fee, prepay fees or costs, or provide security for fees or costs, but he is still

5 required to pay the full $350 filing fee under 28 U.S.C. § 1915, as amended. This full filing fee 6 will remain due and owing even if this case is dismissed or otherwise unsuccessful. 7 To ensure that Martell pays the full filing fee, IT IS FURTHER ORDERED that: 8 • The Nevada Department of Corrections must forward from the account of 9 Leandre Martell, #1248296 to the Clerk of the United States District Court, 10 District of Nevada, 20% of the preceding month’s deposits (in months that the 11 account exceeds $10.00) until the full $350 filing fee has been paid for this action; 12 and 13 • The Clerk is directed to SEND: 14  copies of this order to the Finance Division of the Clerk’s Office

15 and to the attention of Chief of Inmate Services for the Nevada 16 Department of Corrections, P.O. Box 7011, Carson City, NV 17 89702; and 18  the approved form for filing a § 1983 prisoner complaint, 19 instructions for the same, and a copy of his first amended 20 complaint [ECF No. 6] to Martell. 21 22 23 1 IT IS FURTHER ORDERED that: 2 • The operative complaint is the first amended complaint [ECF No. 6]. 3 • Martell’s Fourteenth Amendment verbal harassment claim is DISMISSED with 4 prejudice, as amendment would be futile;

5 • Martell’s Fourteenth Amendment procedural-due-process claim is DISMISSED 6 without prejudice and with leave to amend; 7 • Martell’s Fourteenth Amendment excessive-force claim is DISMISSED without 8 prejudice and with leave to amend; 9 • Martell’s Fourteenth Amendment conditions-of-confinement claim is 10 DISMISSED without prejudice and with leave to amend; 11 • Martell’s Fourteenth Amendment inadequate-medical-care claim is DISMISSED 12 without prejudice and with leave to amend; 13 • Martell’s state-law medical-malpractice claim is DISMISSED without prejudice 14 but without leave to amend; 15 • Martell’s claims against defendant the Las Vegas Metropolitan Police Department 16 are DISMISSED without prejudice and with leave to amend; 17 • Martell’s First Amendment retaliation claim MAY PROCEED against defendant 18 D. Chandler; and 19

20 . . . 21

22 . . . 23 1 e If Martell chooses to file a second amended complaint, he must use the approved 2 form and he shall write the words “Second Amended” above the words “Civil 3 Rights Complaint” in the caption. The second amended complaint will be 4 screened in a separate screening order, and the screening process will take many 5 months. If Martell does not file a second amended complaint by May 13, 6 2022, this action will proceed only on the First Amendment retaliation claim 7 against defendant D. Chandler. 8 Dated: April 13, 2022

U.S. District Fudge Jenntfer/A. Dorsey 10 11 12 13 14 15 16 17 18 19 20 21 22 23