2 DISTRICT OF NEVADA 2 3 John M. Smith, Case No. 2:24-cv-00484-ART-EJY 3 4 Plaintiff, 4 ORDER 5 v. 5 6 D.O.N., et al., 6 7 Defendants. 7 8 8 9 Pending before the Court is Plaintiff’s application to proceed in forma pauperis (“IFP”) and 9 10 Civil Rights Complaint. ECF Nos. 1, 4. Plaintiff’s IFP is complete and is granted below. 10 11 I. Screening Standard 11 12 Federal courts must conduct a preliminary screening in any case in which an incarcerated 12 13 person seeks redress from a governmental entity or officer or employee of a governmental entity. 13 14 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 14 15 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 15 16 monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro 16 17 se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 17 18 696, 699 (9th Cir. 1990). 18 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 19 20 the violation of a right secured by the Constitution or laws of the United States, and (2) that the 20 21 alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 21 22 U.S. 42, 48 (1988). In addition to the screening requirements under § 1915A, pursuant to the Prison 22 23 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s claim if “the 23 24 allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on 24 25 which relief may be granted, or seeks monetary relief against a defendant who is immune from such 25 26 relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which 26 27 relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies 27 28 28 2 complaint. 2 3 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to 3 4 amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of 4 5 the complaint that the deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 5 6 1103, 1106 (9th Cir. 1995). Review under Rule 12(b)(6) is essentially a ruling on a question of law. 6 7 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a 7 8 claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim 8 9 that would entitle him or her to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). 9 10 In making this determination, the court takes as true all allegations of material fact stated in 10 11 the complaint, and the court construes them in the light most favorable to the plaintiff. Warshaw v. 11 12 Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less 12 13 stringent standards than formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). 13 14 While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must 14 15 provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 15 16 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Additionally, 16 17 a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more 17 18 than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 18 19 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be 19 20 supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court 20 21 should assume their veracity and then determine whether they plausibly give rise to an entitlement 21 22 to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 22 23 specific task that requires the reviewing court to draw on its judicial experience and common sense.” 23 24 Id. 24 25 Finally, all or part of a complaint filed by an incarcerated person may therefore be dismissed 25 26 sua sponte if that person’s claims lack an arguable basis either in law or in fact. This includes claims 26 27 based on legal conclusions that are untenable (e.g., claims against defendants who are immune from 27 28 suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based 28 2 319, 327–28 (1989); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 2 3 II. Plaintiff’s Complaint 3 4 Plaintiff raises two issues in his Complaint. These include a failure to ensure he receives 4 5 medication as required and the failure to ensure his safety. More specifically, Plaintiff explains he 5 6 is 70 years old and suffers from serious high blood pressure (among other unidentified ailments) that 6 7 causes severe dizziness. Plaintiff says that despite being prescribed blood pressure medication, his 7 8 medication is allowed to run out for months at a time. Plaintiff further says that because he suffers 8 9 from severe dizziness, sleeping on the top bunk of the bed in his cell is unsafe. Plaintiff states he 9 10 could fall and hit is head on a metal desk or concrete floor. Plaintiff names Dr. Avram (Medical 10 11 Director), the Director of Nursing (name not provided), Warden Bean, and James Dzurenda 11 12 (Director of Operations) as Defendants. Plaintiff brings his claims under the Eighth and Fourteenth 12 13 Amendments alleging cruel and unusual punishment based on the failure to provide “proper” 13 14 medical care and indifference to serious medical needs. 14 15 The Eighth Amendment prohibits the imposition of cruel and unusual punishment and 15 16 “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’” 16 17 Estelle v. Gamble, 429 U.S. 97, 102 (1976).1 A prison official violates the Eighth Amendment when 17 18 he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 18 19 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must satisfy 19 20 both an objective standard—that the deprivation was serious enough to constitute cruel and unusual 20 21 punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 21 22 985 (9th Cir. 2012).
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2 DISTRICT OF NEVADA 2 3 John M. Smith, Case No. 2:24-cv-00484-ART-EJY 3 4 Plaintiff, 4 ORDER 5 v. 5 6 D.O.N., et al., 6 7 Defendants. 7 8 8 9 Pending before the Court is Plaintiff’s application to proceed in forma pauperis (“IFP”) and 9 10 Civil Rights Complaint. ECF Nos. 1, 4. Plaintiff’s IFP is complete and is granted below. 10 11 I. Screening Standard 11 12 Federal courts must conduct a preliminary screening in any case in which an incarcerated 12 13 person seeks redress from a governmental entity or officer or employee of a governmental entity. 13 14 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 14 15 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 15 16 monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro 16 17 se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 17 18 696, 699 (9th Cir. 1990). 18 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 19 20 the violation of a right secured by the Constitution or laws of the United States, and (2) that the 20 21 alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 21 22 U.S. 42, 48 (1988). In addition to the screening requirements under § 1915A, pursuant to the Prison 22 23 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s claim if “the 23 24 allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on 24 25 which relief may be granted, or seeks monetary relief against a defendant who is immune from such 25 26 relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which 26 27 relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies 27 28 28 2 complaint. 2 3 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to 3 4 amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of 4 5 the complaint that the deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 5 6 1103, 1106 (9th Cir. 1995). Review under Rule 12(b)(6) is essentially a ruling on a question of law. 6 7 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a 7 8 claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim 8 9 that would entitle him or her to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). 9 10 In making this determination, the court takes as true all allegations of material fact stated in 10 11 the complaint, and the court construes them in the light most favorable to the plaintiff. Warshaw v. 11 12 Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less 12 13 stringent standards than formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). 13 14 While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must 14 15 provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 15 16 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Additionally, 16 17 a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more 17 18 than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 18 19 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be 19 20 supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court 20 21 should assume their veracity and then determine whether they plausibly give rise to an entitlement 21 22 to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 22 23 specific task that requires the reviewing court to draw on its judicial experience and common sense.” 23 24 Id. 24 25 Finally, all or part of a complaint filed by an incarcerated person may therefore be dismissed 25 26 sua sponte if that person’s claims lack an arguable basis either in law or in fact. This includes claims 26 27 based on legal conclusions that are untenable (e.g., claims against defendants who are immune from 27 28 suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based 28 2 319, 327–28 (1989); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 2 3 II. Plaintiff’s Complaint 3 4 Plaintiff raises two issues in his Complaint. These include a failure to ensure he receives 4 5 medication as required and the failure to ensure his safety. More specifically, Plaintiff explains he 5 6 is 70 years old and suffers from serious high blood pressure (among other unidentified ailments) that 6 7 causes severe dizziness. Plaintiff says that despite being prescribed blood pressure medication, his 7 8 medication is allowed to run out for months at a time. Plaintiff further says that because he suffers 8 9 from severe dizziness, sleeping on the top bunk of the bed in his cell is unsafe. Plaintiff states he 9 10 could fall and hit is head on a metal desk or concrete floor. Plaintiff names Dr. Avram (Medical 10 11 Director), the Director of Nursing (name not provided), Warden Bean, and James Dzurenda 11 12 (Director of Operations) as Defendants. Plaintiff brings his claims under the Eighth and Fourteenth 12 13 Amendments alleging cruel and unusual punishment based on the failure to provide “proper” 13 14 medical care and indifference to serious medical needs. 14 15 The Eighth Amendment prohibits the imposition of cruel and unusual punishment and 15 16 “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’” 16 17 Estelle v. Gamble, 429 U.S. 97, 102 (1976).1 A prison official violates the Eighth Amendment when 17 18 he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 18 19 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must satisfy 19 20 both an objective standard—that the deprivation was serious enough to constitute cruel and unusual 20 21 punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 21 22 985 (9th Cir. 2012). To establish the first prong, “the plaintiff must show a serious medical need by 22 23 demonstrating that failure to treat a prisoner’s condition could result in further significant injury or 23 24 the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 24 25 (internal quotations omitted). To prove deliberate indifference, a plaintiff must prove that the prison 25 26 official “knows of and disregards an excessive risk to inmate health or safety; the official must both 26 27 27 1 The Eighth Amendment protection against cruel and unusual punishment applies to inmates who have been 28 tried and convicted. Ingraham v. Wright, 430 U.S. 651, 669-70 (1977). The Fourteenth Amendment is applicable to 28 pretrial detainees. Plaintiff is post-conviction. Thus, the Court analyzes Plaintiff’s claims under the Eighth not 2 exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see also Peralta v. Dillard, 2 3 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc). Thus, “a complaint that a physician has been 3 4 negligent in diagnosing or treating a medical condition does not state a valid claim of medical 4 5 mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional 5 6 violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Even gross negligence 6 7 is insufficient to establish deliberate indifference to serious medical needs. Toguchi v. Chung, 391 7 8 F.3d 1051, 1060 (9th Cir. 2004). 8 9 To satisfy the deliberate indifference prong, a plaintiff must show “(a) purposeful act or 9 10 failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 10 11 indifference.” Jett, 439 F.3d at 1096. When a prisoner alleges that delay of medical treatment 11 12 evinces deliberate indifference, the prisoner must show the delay led to further harm. See Shapley 12 13 v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay 13 14 of surgery, without more, is insufficient to state a claim of deliberate medical indifference”). Prison 14 15 officials who know of a substantial risk to an inmate’s health and safety are liable only if they 15 16 responded unreasonably to the risk, even if the harm ultimately was not averted. Farmer, 511 U.S. 16 17 at 844. What is reasonable depends on the circumstances, including the defendant’s authority, 17 18 capabilities, and resources. Peralta, 744 F.3d at 1084-85. 18 19 A defendant is liable under 42 U.S.C. § 1983 “only upon a showing of personal participation 19 20 by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious liability 20 21 is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official 21 22 defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 22 23 U.S. at 676. Thus, a supervisor may be found liable for his own harmful deliberate indifference but 23 24 may not be found liable merely because of his subordinate’s harmful deliberate indifference. Starr 24 25 v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). 25 26 Plaintiff satisfies the first prong of a deliberate indifference claim by alleging a serious health 26 27 condition—high blood pressure—together with his age, symptoms, and alleged lengthy periods 27 28 when his daily medication is unavailable because the prescription is not refilled. However, 28 2 Amendment violation. That is, Plaintiff alleges no facts supporting the inference that the delayed 2 3 medication led to further harm. Shapley, 766 F.2d at 407. Plaintiff identifies potential future harm— 3 4 falling from a top bunk that could result in serious injury—but this future possibility is insufficient 4 5 to establish the second prong of an Eighth Amendment claim. Babcock v. White, 102 F.3d 267, 272– 5 6 73 (7th Cir. 1996); see also Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 6 7 Further, while Plaintiff states the Medical Director and Director of Nursing are responsible 7 8 for the health care of inmates, Plaintiff alleges no facts showing personal participation by either of 8 9 these Defendants in Plaintiff’s medical care. Taylor, 880 F.2d at 1045. The Court found no facts 9 10 alleging any wrongful conduct by Warden Bean. With respect to the Director of Operations 10 11 (Dzurenda), Plaintiff says only that he is responsible for ensuring “all operations of the prison” run 11 12 properly. Without any allegation that these Defendants personally participated in the failure to fulfill 12 13 prescriptions or otherwise failed to ensure Plaintiff received his medication as prescribed, Plaintiff 13 14 fails to state a claim under the Eighth Amendment. 14 15 III. Order 15 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma 16 17 pauperis (ECF No. 4) is GRANTED. 17 18 IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 1) is DENIED without 18 19 prejudice. 19 20 IT IS FURTHER ORDERED that Plaintiff may, if he chooses, file an amended complaint. 20 21 The amended complaint must be filed no later than May 15, 2024 and must address the deficiencies 21 22 in Plaintiff’s pleading explained above. The amended complaint must be complete in and of itself. 22 23 That means Plaintiff must include all facts, identify all defendants, and all claims he wishes to raise 23 24 in the amended complaint. The Court cannot review or rely on facts alleged in Plaintiff’s original 24 25 Complaint when screening the amended complaint. 25 26 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff the instructions for 26 27 filing a civil rights complaint together with the form complaint for Plaintiff’s use. 27 28 28 2 May 15, 2024, the Court will recommend this matter be dismissed in its entirety without prejudice. 2 3 DATED this 5th day of April, 2024. 3 4 4 5 5 6 ELAYNA J. YOUCHAH 6 UNITED STATES MAGISTRATE JUDGE 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28