3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 AMMIANUS POMPILIUS Case No. 2:21-cv-01331-RFB-DJA (a.k.a. Anthony Prentice), 7 ORDER Plaintiff, 8 v. 9 STATE OF NEVADA, et al., 10 Defendants. 11 12 Pro se plaintiff Ammianus Pompilius filed a Second Amended Complaint under 42 13 U.S.C. 1983 in this removed action (“SAC”). (ECF No. 11).1 On June 7, 2022, this Court 14 held a hearing in which it screened the SAC under 28 U.S.C. § 1915A. (ECF No. 33). The 15 Court stated its screening findings and reasoning on the record during the hearing. But 16 the Court recognizes that a brief written summary of its screening order will assist the 17 parties going forward in this action. And it understands that some guidance is needed for 18 Pompilius to serve the Defendants with process. The Court now addresses those issues. 19 I. SCREENING STANDARD 20 Federal courts must conduct a preliminary screening in any case in which an 21 incarcerated person seeks redress from a governmental entity or officer or employee of 22 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 23 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 24 claim upon which relief may be granted, or seek monetary relief from a defendant who is 25 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 26 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27
28 1 A duplicate of the SAC was filed at ECF No. 12. To ensure a clear record in this case, the Court will instruct the Clerk of the Court to strike the duplicate pleading at ECF 2 (1) the violation of a right secured by the Constitution or laws of the United States, and 3 (2) that the alleged violation was committed by a person acting under color of state law. 4 See West v. Atkins, 487 U.S. 42, 48 (1988). 5 In addition to the screening requirements under § 1915A, pursuant to 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 the plaintiff clearly cannot prove any set of facts in support 20 of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 21 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of 22 material fact stated in the complaint, and the court construes them in the light most 23 favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 24 Allegations of a pro se complainant are held to less stringent standards than formal 25 pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the 26 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must 27 provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 28 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 2 that, because they are no more than mere conclusions, are not entitled to the assumption 3 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 4 the framework of a complaint, they must be supported with factual allegations.” Id. “When 5 there are well-pleaded factual allegations, a court should assume their veracity and then 6 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 7 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 8 requires the reviewing court to draw on its judicial experience and common sense.” Id. 9 Finally, all or part of a complaint filed by an incarcerated person may therefore be 10 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 11 This includes claims based on legal conclusions that are untenable (e.g., claims against 12 defendants who are immune from suit or claims of infringement of a legal interest which 13 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 14 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 15 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 16 II. CONCLUSION 17 For the reasons explained on the record during the June 7 hearing, it is hereby 18 ordered that: 19 • The operative pleading is the Second Amended Complaint (“SAC”) at ECF 20 No. 11; 21 • The First Amendment free exercise and Nevada analogue (Nev. Const. Art.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 AMMIANUS POMPILIUS Case No. 2:21-cv-01331-RFB-DJA (a.k.a. Anthony Prentice), 7 ORDER Plaintiff, 8 v. 9 STATE OF NEVADA, et al., 10 Defendants. 11 12 Pro se plaintiff Ammianus Pompilius filed a Second Amended Complaint under 42 13 U.S.C. 1983 in this removed action (“SAC”). (ECF No. 11).1 On June 7, 2022, this Court 14 held a hearing in which it screened the SAC under 28 U.S.C. § 1915A. (ECF No. 33). The 15 Court stated its screening findings and reasoning on the record during the hearing. But 16 the Court recognizes that a brief written summary of its screening order will assist the 17 parties going forward in this action. And it understands that some guidance is needed for 18 Pompilius to serve the Defendants with process. The Court now addresses those issues. 19 I. SCREENING STANDARD 20 Federal courts must conduct a preliminary screening in any case in which an 21 incarcerated person seeks redress from a governmental entity or officer or employee of 22 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 23 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 24 claim upon which relief may be granted, or seek monetary relief from a defendant who is 25 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 26 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27
28 1 A duplicate of the SAC was filed at ECF No. 12. To ensure a clear record in this case, the Court will instruct the Clerk of the Court to strike the duplicate pleading at ECF 2 (1) the violation of a right secured by the Constitution or laws of the United States, and 3 (2) that the alleged violation was committed by a person acting under color of state law. 4 See West v. Atkins, 487 U.S. 42, 48 (1988). 5 In addition to the screening requirements under § 1915A, pursuant to 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 the plaintiff clearly cannot prove any set of facts in support 20 of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 21 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of 22 material fact stated in the complaint, and the court construes them in the light most 23 favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 24 Allegations of a pro se complainant are held to less stringent standards than formal 25 pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the 26 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must 27 provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 28 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 2 that, because they are no more than mere conclusions, are not entitled to the assumption 3 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 4 the framework of a complaint, they must be supported with factual allegations.” Id. “When 5 there are well-pleaded factual allegations, a court should assume their veracity and then 6 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 7 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 8 requires the reviewing court to draw on its judicial experience and common sense.” Id. 9 Finally, all or part of a complaint filed by an incarcerated person may therefore be 10 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 11 This includes claims based on legal conclusions that are untenable (e.g., claims against 12 defendants who are immune from suit or claims of infringement of a legal interest which 13 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 14 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 15 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 16 II. CONCLUSION 17 For the reasons explained on the record during the June 7 hearing, it is hereby 18 ordered that: 19 • The operative pleading is the Second Amended Complaint (“SAC”) at ECF 20 No. 11; 21 • The First Amendment free exercise and Nevada analogue (Nev. Const. Art. 22 1, § 4) claims can proceed against only Defendants Julio Calderin, Brian 23 Williams, and Calvin Johnson; 24 • The claim under the Religious Land Use and Institutionalized Persons Act 25 can proceed against only Defendants Calderin, Williams, and Johnson; 26 • The state law claim for general negligence can proceed against only 27 Defendants Calderin, Johnson, and Williams; 28 2 can proceed against only Defendants James Dzurenda, Williams, and 3 Johnson; 4 • The Eighth Amendment claim for deliberate medical indifference to knee 5 pain can proceed against Defendants Richard Wulff and Bryant; 6 • The state law claims for professional medical negligence can proceed 7 against only Defendants Wulff and Bryant; 8 • The Eighth Amendment claim for deliberate medical indifference to hip 9 pain/arthritis can proceed against only Defendants Wulff and Bryant now, 10 and it can proceed against the unnamed members of High Desert State 11 Prison’s medical staff when Pompilius learns their true names and obtains 12 leave to substitute them as defendants in this action; 13 • The state law claim for negligent infliction of emotional distress is 14 dismissed without prejudice; 15 • The state law claim for intentional infliction of emotional distress is 16 dismissed without prejudice and with leave to amend; 17 • Defendants Nevada Department of Corrections and HDSP Medical 18 Department are dismissed with prejudice from the SAC with prejudice as 19 amendment would be futile; and 20 • Defendant Office of the Director is dismissed from the SAC without 21 prejudice. 22 It is further ordered that under Federal Rule of Civil Procedure 4(m), service must 23 be perfected within 90 days from the date of this order. 24 It is further ordered that subject to the findings of the screening order as stated on 25 the record during the June 7 hearing, within 21 days of the date of entry of this order, the 26 Attorney General’s Office shall file a notice advising the Court and Pompilius of: (a) the 27 names of the defendants for whom it accepts service; (b) the names of the defendants 28 for whom it does not accept service, and (c) the names of the defendants for whom it is 2 for whom the Attorney General’s Office cannot accept service, the Office shall file, under 3 seal, but shall not serve the inmate Pompilius the last known address(es) of those 4 defendant(s) for whom it has such information. If the last known address of the 5 defendant(s) is a post office box, the Attorney General's Office shall attempt to obtain and 6 provide the last known physical address(es). 7 It is further ordered that if service cannot be accepted for any of the named 8 defendant(s), Pompilius shall file a motion identifying the unserved defendant(s), 9 requesting issuance of a summons, and specifying a full name and address for the 10 defendant(s). For the defendant(s) as to which the Attorney General has not provided 11 last-known-address information, Pompilius shall provide the full name and address for the 12 defendant(s). 13 It is further ordered that if the Attorney General accepts service of process for any 14 named defendant(s), such defendant(s) shall file and serve an answer or other response 15 to the SAC (ECF No. 11) within 60 days from the date of this order. 16 It is further ordered that Pompilius shall serve upon defendant(s) or, if an 17 appearance has been entered by counsel, upon their attorney(s), a copy of every 18 pleading, motion or other document submitted for consideration by the Court. If Pompilius 19 electronically files a document with the Court’s electronic-filing system, no certificate of 20 service is required. Fed. R. Civ. P. 5(d)(1)(B); Nev. Loc. R. IC 4-1(b); Nev. Loc. R. 5-1. 21 However, if Pompilius mails the document to the Court, he shall include with the original 22 document submitted for filing a certificate stating the date that a true and correct copy of 23 the document was mailed to the defendants or counsel for the defendants. If counsel has 24 entered a notice of appearance, Pompilius shall direct service to the individual attorney 25 named in the notice of appearance, at the physical or electronic address stated therein. 26 The Court may disregard any document received by a district judge or magistrate judge 27 which has not been filed with the Clerk, and any document received by a district judge, 28 1 || magistrate judge, or the Clerk which fails to include a certificate showing proper service 2 || when required. 3 Finally, the Clerk of the Court is directed to: 4 ° STRIKE the duplicate pleading at ECF No. 12; and 5 ° Electronically SERVE a copy of this order and a copy of the SAC (ECF No. 6 11) on the Office of the Attorney General of the State of Nevada by adding 7 the Attorney General of the State of Nevada to the docket sheet. This does 8 not indicate acceptance of service. 9 10 || DATED: July 20, 2022 AS 11 RICHARD F. BOULWARE, III UNITED STATES DISTRICT JUDGE
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