Peck v. Rivas

• Court: District Court, D. Nevada
• Decided: August 6, 2024
• Docket: 2:23-cv-01870
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 Frank M. Peck, Case No. 2:23-cv-01870-CDS-MDC

4 Plaintiff Order Screening Complaint and Denying Plaintiff’s Motion for Appointment of 5 v. Counsel

6 Rivas, et al.,

7 Defendants [ECF Nos. 1-1, 8]

8 9 Plaintiff Frank M. Peck, who is incarcerated in the custody of the Nevada Department of 10 Corrections at High Desert State Prison (“HDSP”), has submitted a civil-rights complaint under 11 42 U.S.C. § 1983. ECF No. 1-1. He has paid the filing fee. See ECF No. 5. The Court now screens 12 Peck’s complaint under 28 U.S.C. § 1915A. 13 I. Screening Standard 14 Federal courts must conduct a preliminary screening in any case in which an incarcerated 15 person seeks redress from a governmental entity or officer or employee of a governmental entity. 16 See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss 17 any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or 18 seek monetary relief from a defendant who is immune from such relief. See id. §§ 1915A(b)(1), (2). 19 Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 20 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 21 essential elements: (1) the violation of a right secured by the Constitution or laws of the United 22 States; and (2) that the alleged violation was committed by a person acting under color of state 23 law. See West v. Atkins, 487 U.S. 42, 48 (1988). 24 In addition to the screening requirements under § 1915A, under the Prison Litigation 25 Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s claim if “the allegation 26 of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on which relief 27 may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be 1 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same 2 standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. 3 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 4 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 5 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 6 1103, 1106 (9th Cir. 1995). 7 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 8 Laboratory Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is 9 proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that 10 would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making 11 this determination, the Court takes as true all allegations of material fact stated in the complaint, 12 and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 13 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent 14 standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 15 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must 16 provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 17 (2007). A formulaic recitation of the elements of a cause of action is insufficient. See id. 18 Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, 19 because they are no more than mere conclusions, are not entitled to the assumption of truth.” 20 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a 21 complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded 22 factual allegations, a court should assume their veracity and then determine whether they 23 plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a 24 plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw 25 on its judicial experience and common sense.” Id. 26 Finally, all or part of a complaint filed by an incarcerated person may be dismissed sua 27 sponte if that person’s claims lack an arguable basis either in law or in fact. This includes claims 28 based on legal conclusions that are untenable (e.g., claims against defendants who are immune 1 from suit or claims of infringement of a legal interest which clearly does not exist), as well as 2 claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. 3 Williams, 490 U.S. 319, 327–28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 4 II. Screening of complaint 5 In his complaint Peck sues HDSP doctors Rivas, Martin, Augustine, Manalang, and 6 Minev; HDSP Associate Warden of Operations James Scally; and 15 Doe Defendants for events that 7 occurred at HDSP. ECF No. 1-1 at 3. He sets forth his allegations as four claims and seeks monetary 8 damages and injunctive relief. Id. at 5-9. As a preliminary matter, the Court notes that the use of 9 “Doe” to identify a defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 10 But flexibility is allowed in some cases where the identity of the parties will not be known prior to 11 filing a complaint but can subsequently be determined through discovery. Id. If the true identity of 12 any of the Doe Defendants comes to light during discovery, Peck may move to substitute the true 13 names of Doe Defendant(s) to assert claims against the Doe Defendant(s) at that time. 14 Peck alleges the following. On or about December 17, 2017, Dr. Rivas examined him 15 regarding his complaints about mid and lower back pain. Dr. Rivas said it could be gall bladder or 16 kidney pain and prescribed acetaminophen. Peck has since repeatedly submitted written requests 17 for an actual diagnosis and more pain medication. To date, Drs. Rivas, Martin, Augustine, 18 Manalang, and Does have failed to acknowledge or respond to his requests. He suffers extreme 19 pain and has difficulty breathing or standing upright. Drs. Rivas, Martin, Augustine, and Manalang 20 have also refused to order a low-fat, low-cholesterol medical diet for Peck and his triglycerides are 21 now elevated. 22 On October 7, 2019, Dr. Augustine ordered Dilantin 300 mg x2 daily after years of Peck 23 taking 400 mg daily, which caused Peck to go “man down” on November 20, 2019. Dr. Manalang 24 misdiagnosed Peck with TIA, Dr. Bryan then correctly diagnosed him with Dilantin toxicity. Dr. 25 Martin subsequently ordered that Peck be seen by a neurologist. Does 1-10 on the medical panel 26 cancelled that appointment due to cost. Since the overdose, Peck has repeatedly requested 27 diagnosis and treatment for the overdose with no response from any medical provider. Since the 28 overdose Peck has had difficulty sleeping. No Does have followed up or provided a diagnosis or 1 treatment. Medical personnel have intentionally failed to acknowledge and respond to his medical 2 kites, and they have not returned a copy to him. He has difficulty moving in certain ways, and Dr. 3 Rivas refused to order an x-ray. 4 As far back as July 28, 2021, doctors failed to treat Peck’s pre-diabetes and continued to 5 ignore his blood sugar levels until he was diagnosed with Type III diabetes. Scally delayed and 6 hindered exhaustion of Peck’s grievances, delaying treatment of this serious condition. Drs. Minev 7 and Rivas have failed to diagnose or treat Peck’s pain that was the subject of his 1983 complaint in 8 case no. 2:21-cv-01865-CDS-EJY. 9 Based on these allegations, Peck asserts that Drs. Rivas, Martin, Augustine, Manalang and 10 Does acted with deliberate indifference to his serious pain and elevated triglycerides (claim 1); that 11 after he suffered Dilantin toxicity Does on the medical panel canceled a neurologist appointment 12 due to cost in deliberate indifference to his serious medical needs and medical staff refuses to 13 respond to his kites or give him copies of the kites (claim 2); Scally acted with deliberate 14 indifference to Peck’s serious medical needs when he delayed and hindered Peck’s medical 15 grievances, resulting in delayed treatment for his diabetes (claim 3); and Drs. Minev and Rivas 16 have acted with deliberate indifference to Peck’s serious medical needs by failing to diagnose or 17 treat his pain that was the subject of an earlier 1983 complaint filed by Peck (claim 4). 18 A. Peck’s Claims are Barred by Res Judicata 19 Peck’s allegations implicate his Eighth Amendment right to be free from deliberate 20 indifference to his serious medical needs. However, he brought these claims based on the same 21 allegations in his earlier 1983 complaint. Case no. 2:21-cv-01865-CDS-EJY, ECF No. 17. “Res 22 judicata,” or claim preclusion, provides that final judgment on the merits bars further claims by the 23 parties or their privies based on the same cause of action. See United States v. Bhatia, 545 F.3d 757 24 (2008); Poblete Mendoza v. Holder, 606 F.3d 1137 (9th Cir. 2010). In his earlier case the parties reached 25 a settlement, and the case was dismissed with prejudice in September 2023. 2:21-cv-01865-CDS- 26 EJY at ECF No. 55. This current complaint, therefore, is duplicative, barred by res judicata and 27 subject to dismissal. 28 l If Peck seeks to argue that the parties have breached the settlement agreement, that is a 2 ||state-law contract claim that he needs to raise in state court. See Kelly v. Wengler, 822 F.3d 1085, 3 ]1094-1095 (9th Cir. 2016). This Court lacks jurisdiction to consider such a claim. See id. at 1094, 4 citing O’Connor v. Colvin, 70 F.3d 530, 532 (9th Cir. 1995) (“when a district court dismisses an action 5 || with prejudice pursuant to a settlement agreement, federal jurisdiction usually ends”). The Court, 6 ||accordingly, dismisses this complaint with prejudice and without leave to amend as amendment 7 || would be futile. 8 | IIT. Conclusion 9 It is therefore ordered that this § 1983 action is DISMISSED with prejudice as set forth in 10 || this order. ul It is further ordered that Peck’s motion for appointment of counsel [ECF No. 8] is 12 || DENIED as moot. B The Clerk of Court is directed to enter judgment accordingly and to close this case. 14 Dated: August 6, 2024 15 /, / 16 Vy “ed D. Silva Iv ey d States District Judge 18

19 20 21 22 23 24 25 26 27 28