Miller v. Johnson

• Court: District Court, D. Nevada
• Decided: July 7, 2021
• Docket: 2:20-cv-02125
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JARRETT MILLER, Case No. 2:20-cv-02125-GMN-VCF

7 Plaintiff, ORDER v. 8 CALVIN JOHNSON, et al., 9 Defendants. 10 11 Plaintiff, who formerly was incarcerated in the custody of the Nevada Department 12 of Corrections (“NDOC”), has filed an application to proceed in forma pauperis for non- 13 prisoners and has filed an amended civil rights complaint pursuant to 42 U.S.C. § 1983.1 14 (ECF Nos. 3, 10). Based on the financial information provided, the Court grants Plaintiff 15 leave to proceed without prepayment of fees or costs pursuant to 28 U.S.C. § 1915(a)(1).2 16 The Court now screens Plaintiff’s civil rights complaint under 28 U.S.C. § 1915A. 17 I. SCREENING STANDARD 18 Federal courts must conduct a preliminary screening in any case in which an 19 incarcerated person seeks redress from a governmental entity or officer or employee of 20 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify 21 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 22 claim upon which relief may be granted, or seek monetary relief from a defendant who is 23 immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must 24 be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 25 26 1 An amended complaint replaces an earlier complaint. See Hal Roach Studios, 27 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). Therefore, the operative complaint is the First Amended Complaint (ECF No. 3). 28 2 Plaintiff is not subject to the requirements of 28 U.S.C. § 1915(a)(2), (b) because 2 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 4 of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 5 In addition to the screening requirements under § 1915A, under the Prison 6 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 7 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 8 to state a claim on which relief may be granted, or seeks monetary relief against a 9 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 10 complaint for failure to state a claim upon which relief can be granted is provided for in 11 Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under 12 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 13 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 14 the complaint with directions as to curing its deficiencies, unless it is clear from the face 15 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 16 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 17 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 18 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 19 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 20 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 21 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all 22 allegations of material fact stated in the complaint, and the Court construes them in the 23 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 24 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 25 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 26 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 27 must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 28 2 insufficient. See id. 3 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 4 that, because they are no more than mere conclusions, are not entitled to the assumption 5 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 6 the framework of a complaint, they must be supported with factual allegations.” Id. “When 7 there are well-pleaded factual allegations, a court should assume their veracity and then 8 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 9 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 10 requires the reviewing court to draw on its judicial experience and common sense.” Id. 11 Finally, all or part of a complaint filed by an incarcerated person may be dismissed 12 sua sponte if that person’s claims lack an arguable basis either in law or in fact. This 13 includes claims based on legal conclusions that are untenable (e.g., claims against 14 defendants who are immune from suit or claims of infringement of a legal interest which 15 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 16 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 17 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 18 II. SCREENING OF FIRST AMENDED COMPLAINT 19 In his First Amended Complaint (“FAC”), Plaintiff sues multiple Defendants for 20 events that allegedly took place while Plaintiff was incarcerated at High Desert State 21 Prison (“HDSP”). (ECF No. 3 at 1). Plaintiff sues Defendants Calvin Johnson, Charles 22 Daniels, and Ernest. (Id. at 1-3). Plaintiff also lists John Doe, Control c/o” as a 23 defendant.3 (Id. at 3). Plaintiff brings one count and seeks monetary damages. (Id. at 4, 24 9). 25

26 3 The Court notes that a complaint cannot be served on an unnamed person and a case may not proceed against a person unless that person is served with the complaint. 27 Furthermore, as a general rule, the use of “Doe” pleading to identify a defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, the Court 28 recognizes that there are situations where the identity of alleged defendants cannot be known prior to the filing of a complaint.” Id. To the extent possible, a plaintiff should try to 2 with an officer’s baton. (Id. at 3). Officers knew Plaintiff was in a mixed custody unit and 3 failed to protect him under the Eighth Amendment by opening more than one cell door at 4 once to administer meals, resulting in the inmate assaulting Plaintiff. (Id.) Plaintiff 5 concludes that the NDOC and HDSP are liable.4 (Id. at 3). Plaintiff was classified as a 6 protective custody inmate. (Id. at 4). On May 29, 2020, Plaintiff was assaulted, battered 7 and beaten with a correctional officer’s baton by a general population inmate in the “Fish 8 Tank” in unit 1, Pod C, Cell 6, while incarcerated by the NDOC at HDSP. (Id.). 9 The complaint includes the following allegations that the Court finds difficult to 10 understand: “C/O John Doe in control by Deliberate Indifference to Plaintiff’s Health and 11 Safety, and failed to protect Plaintiff, opened more than one cell door at a time, that 12 resulted in this assault, and closed the Assultor Inmate Campbell in Cell 1-c-6, with c/o 13 Ernest’s Baton, while c/o Ernest went to get his raido, to continue to assault Plaintiff.” 14 (Id.) Ernest, who “eye-witnessed this assault, by deliberate Indifference to Plaintiff’s 15 health and safety, and failed to protect Plaintiff, as c/o Ernest knew Plaintiff was in a mixed 16 custody unit and administered meals by opening more than one cell door at a time, which 17 18 identify the names of defendants. If a plaintiff does label a defendant as a “Doe,” the 19 plaintiff must adequately describe that particular Doe and the plaintiff must adequately allege in the complaint what that specific person did to violate his rights. If a plaintiff states 20 a colorable claim against a particular Doe defendant, the Court later may provide the plaintiff with an opportunity through discovery to identify that particular unknown 21 defendant, unless it is clear that discovery would not uncover that person’s identity or that the complaint would be dismissed on other grounds. Id. The plaintiff then would be 22 required to file an amended complaint, including that person as a defendant by using that person’s true name and stating a claim against that person. Plaintiff has not stated a 23 colorable claim against a specific Doe defendant.

24 4 The Court notes that neither HDSP nor the NDOC is named as a defendant. Furthermore, neither HDSP nor the NDOC may be held liable for an Eighth Amendment 25 violation. HDSP is an inanimate building, not a person or entity subject to liability. See Allen v. Clark Cnty. Det. Ctr., 2:10-CV-00857-RLH, 2011 WL 197201, *4 (D. Nev. Jan. 26 20, 2011) (finding that “[t]he law defines persons as including natural persons (i.e., human beings) as well as corporations and political subdivisions. However, objects such as 27 buildings do not fit within this definition.”). The NDOC is an arm of the state of Nevada and therefore is not a “person” subject to suit for purposes of § 1983. See Doe v. 28 Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997); Black v. Nevada Dep’t of Corr., 2:09-cv-2343-PMP-LRL, 2010 WL 2545760, *2 (D. Nev. June 21, 2010). 2 personal; failed to adequately disfuse this assault; inflicting more injury to Plaintiff.” (Id.) 3 Based on these allegations, Plaintiff concludes that this was a violation of the 4 Eighth Amendment. (Id.) 5 The Constitution does not mandate comfortable prisons, but neither does it permit 6 inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The “treatment a prisoner 7 receives in prison and the conditions under which he is confined are subject to scrutiny 8 under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). To establish 9 violations the Eighth Amendment, the prisoner must establish that prison officials were 10 deliberately indifferent to serious threats to the inmate’s safety. Id. at 834. To demonstrate 11 that a prison official was deliberately indifferent to a serious threat to the inmate’s safety, 12 the prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to 13 inmate . . . safety; the official must both be aware of facts from which the inference could 14 be drawn that a substantial risk of serious harm exists, and [the official] must also draw 15 the inference.” Id. at 837. It is not enough that the official objectively should have 16 recognized the risk but did not. Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir. 2001). 17 Thus, negligence or a mere mistake is insufficient to violate the Eighth Amendment. Id. 18 at 835-36. Similarly, prison officials who know of a substantial risk to an inmate's health 19 and safety are liable only if they responded unreasonably to the risk, even if the harm 20 ultimately was not averted. Farmer, 511 U.S. at 844. 21 In addition, plaintiffs alleging a claim for deliberate indifference must also 22 demonstrate that the defendant’s actions were both an actual and proximate cause of 23 their injuries. Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 24 2013). 25 Furthermore, a defendant is liable under 42 U.S.C. § 1983 “only upon a showing 26 of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 27 1989). Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that 28 each Government-official defendant, through the official’s own individual actions, has 2 Plaintiff must allege facts sufficient to show that each particular defendant was 3 deliberately indifferent and caused the harm; a defendant does not become liable for an 4 Eighth Amendment violation merely because a co-worker or subordinate was deliberately 5 indifferent. Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). 6 He alleges facts sufficient to show that another inmate was a threat to his safety 7 and injured him. However, Plaintiff has not alleged any facts concerning Calvin Johnson 8 or Charles Daniels and therefore necessarily does not state a claim against either of these 9 defendants. To the extent Plaintiff is attempting to state claims against them merely 10 because they are the NDOC Director the Warden of HDSP, Plaintiff does not and cannot 11 state a claim. The Court therefore dismisses without prejudice the claims against these 12 defendants. 13 Plaintiff makes conclusory allegations of “deliberate indifference” and “failure to 14 protect” in connection with Ernest and the John Doe defendant, but such conclusory 15 allegations are not sufficient to state a colorable claim. Plaintiff does not clearly allege 16 facts sufficient to show deliberate indifference by any particular defendant. This may be 17 because the Court does not understand some of the allegations concerning Ernest and 18 John Doe. The Court therefore finds that Plaintiff has not stated a colorable claim. It 19 appears that Plaintiff may be alleging negligence. However, it is possible that Plaintiff 20 may be able to allege facts sufficient to show deliberate indifference by a particular 21 defendant but he has not done so. 22 The Court therefore dismisses the complaint without prejudice and with leave to 23 amend. If Plaintiff chooses to amend the complaint, he may not rely on conclusory 24 statements of “deliberate indifference” or a “failure to protect” to state a claim. Instead, 25 for each particular defendant, he must allege facts sufficient to show that the particular 26 defendant was deliberately indifferent. Plaintiff is encouraged to clearly describe, step by 27 step, what it is that happened, clearly describing what each particular defendant did. 28 Plaintiff should not merge a number of different sentence fragments into one 2 defendant did and must be able to understand factual allegations that would show that a 3 particular defendant deliberately and unreasonably took actions with the conscious belief 4 that such actions would endanger or injure Plaintiff. Plaintiff also must allege facts that 5 would be sufficient to show that a particular defendant’s alleged conduct caused Plaintiff 6 specified injuries. Allegations that would show that a defendant should have known 7 something or was negligent or made a mistake will not be sufficient. The mere failure to 8 understand the danger to Plaintiff will not be sufficient. The mere failure to prevent the 9 injuries will not be sufficient. 10 Plaintiff is granted leave to file an amended complaint to cure the deficiencies of 11 the complaint. If Plaintiff chooses to file an amended complaint, he is advised that an 12 amended complaint supersedes (replaces) the original complaint and, thus, the amended 13 complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & 14 Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was 15 named in the original complaint is irrelevant; an amended pleading supersedes the 16 original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding 17 that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims 18 in a subsequent amended complaint to preserve them for appeal). Plaintiff should file the 19 amended complaint on this Court’s approved prisoner civil rights form, and it must be 20 entitled “Second Amended Complaint.” For each cause of action and each Defendant, 21 he must allege facts sufficient to show that the Defendant violated Plaintiff’s civil rights. 22 Plaintiff may not amend the complaint to add unrelated claims against other defendants. 23 Furthermore, an amended complaint does not include claims based on events that have 24 taken place since the original complaint was filed. 25 The Court notes that, if Plaintiff chooses to file an amended complaint curing the 26 deficiencies, as outlined in this order, Plaintiff must file the amended complaint within 30 27 days from the date of entry of this order. If Plaintiff does not timely file an amended 28 2 failure to state a claim. 3 III. CONCLUSION 4 It is therefore ordered that Plaintiff’s application to proceed in district court without 5 prepaying fees or costs (ECF No. 10) is granted. 6 It is further ordered that the operative complaint is the First Amended Complaint 7 (ECF No. 3), and the Clerk of the Court will send Plaintiff a courtesy copy of the First 8 Amended Complaint. 9 It is further ordered that the First Amended Complaint is dismissed without 10 prejudice and with leave to amend. 11 It is further ordered that, if Plaintiff chooses to file an amended complaint curing 12 the deficiencies of his complaint, as outlined in this order, Plaintiff shall file the amended 13 complaint within 30 days from the date of entry of this order. 14 It is further ordered that the Clerk of the Court shall send to Plaintiff the approved 15 form for filing a § 1983 complaint and instructions for the same. If Plaintiff chooses to file 16 an amended complaint, he should use the approved form and he must write the words 17 “Second Amended” above the words “Civil Rights Complaint” in the caption. 18 It is further ordered that, if Plaintiff fails to file a timely amended complaint, this 19 action shall be dismissed with prejudice for failure to state a claim. 20 DATED THIS 7 day of J u l y 2021.

22 ___ GLORIA M. NAVARRO 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28