1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 Robert F. Williams, Case No. 2:19-cv-2223-KJD-EJY
5 Plaintiff, SCREENING ORDER ON FIRST AMENDED COMPAINT (ECF No. 5) 6 v.
7 Michael Minev, et al.,
8 Defendants.
9 10 Plaintiff, who is incarcerated in the custody of the Nevada Department of Corrections 11 (NDOC), has filed an amended civil rights complaint pursuant to 42 U.S.C. § 1983. ECF No. 5. 12 Previously, the Court dismissed Plaintiff’s original complaint (ECF No. 4) without prejudice. ECF 13 No. 3. In granting leave to amend, the Court noted the deficiencies of the complaint and notified 14 Plaintiff that this matter would be dismissed with prejudice if those deficiencies were not corrected 15 in an amended complaint. Plaintiff has also filed an application to proceed in forma pauperis. 16 ECF No. 1. 17 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 1). Based on the 18 information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not able to pay an 19 initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 1915. Plaintiff will, 20 however, be required to make monthly payments toward the full $350.00 filing fee when he has 21 funds available. 22 The Court has screened Plaintiff’s first amended civil rights complaint under 28 U.S.C. § 23 1915A. The Court will dismiss the First Amended Complaint with prejudice because it suffers 24 from the same deficiencies as the original complaint and fails to state a colorable claim. 25 26 1 I. SCREENING STANDARD 2 Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 3 redress from a governmental entity or officer or employee of a governmental entity. See 28 4 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 5 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 6 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 7 (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 8 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must 9 allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the 10 United States, and (2) that the alleged violation was committed by a person acting under color of 11 state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 12 In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation 13 Reform Act (PLRA), a federal court must dismiss a prisoner’s claim, if “the allegation of poverty is 14 untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief may be 15 granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 16 § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted 17 is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same 18 standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. 19 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 20 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 21 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 22 F.3d 1103, 1106 (9th Cir. 1995). 23 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 24 Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is 25 proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that 26 would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In 1 making this determination, the court takes as true all allegations of material fact stated in the 2 complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw 3 v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to 4 less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 5 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual 6 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 8 insufficient. Id. 9 Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, 10 because they are no more than mere conclusions, are not entitled to the assumption of truth.” 11 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework 12 of a complaint, they must be supported with factual allegations.” Id. “When there are well- 13 pleaded factual allegations, a court should assume their veracity and then determine whether they 14 plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a 15 plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on 16 its judicial experience and common sense.” Id. 17 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte 18 if the prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based 19 on legal conclusions that are untenable (e.g., claims against defendants who are immune from 20 suit or claims of infringement of a legal interest which clearly does not exist), as well as claims 21 based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. 22 Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 23 1991). 24 II. PROCEDURAL HISTORY 25 In screening Plaintiff’s original complaint, the Court found that, liberally construed, his 26 allegations that Jane Doe advised him that he did not need a tetanus shot did not state a 1 colorable Eighth Amendment claim. ECF No. 3 at 6.
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1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 Robert F. Williams, Case No. 2:19-cv-2223-KJD-EJY
5 Plaintiff, SCREENING ORDER ON FIRST AMENDED COMPAINT (ECF No. 5) 6 v.
7 Michael Minev, et al.,
8 Defendants.
9 10 Plaintiff, who is incarcerated in the custody of the Nevada Department of Corrections 11 (NDOC), has filed an amended civil rights complaint pursuant to 42 U.S.C. § 1983. ECF No. 5. 12 Previously, the Court dismissed Plaintiff’s original complaint (ECF No. 4) without prejudice. ECF 13 No. 3. In granting leave to amend, the Court noted the deficiencies of the complaint and notified 14 Plaintiff that this matter would be dismissed with prejudice if those deficiencies were not corrected 15 in an amended complaint. Plaintiff has also filed an application to proceed in forma pauperis. 16 ECF No. 1. 17 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 1). Based on the 18 information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not able to pay an 19 initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 1915. Plaintiff will, 20 however, be required to make monthly payments toward the full $350.00 filing fee when he has 21 funds available. 22 The Court has screened Plaintiff’s first amended civil rights complaint under 28 U.S.C. § 23 1915A. The Court will dismiss the First Amended Complaint with prejudice because it suffers 24 from the same deficiencies as the original complaint and fails to state a colorable claim. 25 26 1 I. SCREENING STANDARD 2 Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 3 redress from a governmental entity or officer or employee of a governmental entity. See 28 4 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 5 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 6 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 7 (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 8 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must 9 allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the 10 United States, and (2) that the alleged violation was committed by a person acting under color of 11 state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 12 In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation 13 Reform Act (PLRA), a federal court must dismiss a prisoner’s claim, if “the allegation of poverty is 14 untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief may be 15 granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 16 § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted 17 is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same 18 standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. 19 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 20 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 21 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 22 F.3d 1103, 1106 (9th Cir. 1995). 23 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 24 Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is 25 proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that 26 would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In 1 making this determination, the court takes as true all allegations of material fact stated in the 2 complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw 3 v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to 4 less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 5 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual 6 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 8 insufficient. Id. 9 Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, 10 because they are no more than mere conclusions, are not entitled to the assumption of truth.” 11 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework 12 of a complaint, they must be supported with factual allegations.” Id. “When there are well- 13 pleaded factual allegations, a court should assume their veracity and then determine whether they 14 plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a 15 plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on 16 its judicial experience and common sense.” Id. 17 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte 18 if the prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based 19 on legal conclusions that are untenable (e.g., claims against defendants who are immune from 20 suit or claims of infringement of a legal interest which clearly does not exist), as well as claims 21 based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. 22 Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 23 1991). 24 II. PROCEDURAL HISTORY 25 In screening Plaintiff’s original complaint, the Court found that, liberally construed, his 26 allegations that Jane Doe advised him that he did not need a tetanus shot did not state a 1 colorable Eighth Amendment claim. ECF No. 3 at 6. Plaintiff’s allegations established that he 2 was seeking to hold Jane Doe liable for being negligent in giving him medical advice. Id. The 3 Court dismissed the claim with prejudice because negligence in diagnosing or treating a medical 4 condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Id. 5 The Court also found that, liberally construed, Plaintiff had failed to state a colorable claim 6 under the Eighth Amendment against any of the defendants arising from the delay between his 7 request for a tetanus shot and his receipt of a tetanus shot. Id. at 5. The Court noted that Plaintiff 8 had failed to allege that he suffered a significant injury or that the delay in Plaintiff’s receipt of the 9 tetanus shot led to further significant injury. Id. The Court dismissed Plaintiff’s Eighth 10 Amendment claims for the delay in obtaining a tetanus shot without prejudice and gave Plaintiff 11 leave to amend to cure this deficiency. Id. 12 The Court also found that, liberally construed, Plaintiff had failed to state a colorable claim 13 under the Eighth Amendment against Peret, Faulkner or Minev as supervisors directly involved 14 either in the delay of his receipt of the tetanus shot or the training of Jane Doe regarding 15 infectious diseases. Id. at 7. The Court noted that Plaintiff had failed to allege any 16 unconstitutional conduct by a subordinate. Id. The Court further noted that Plaintiff had failed to 17 allege that any of the supervisor defendants were directly involved in or acquiesced to a 18 subordinate’s unconstitutional conduct. Id. The Court dismissed the claims against the 19 supervisor defendants without prejudice and gave Plaintiff leave to amend to cure these 20 deficiencies. Id. 21 The Court also dismissed Plaintiff’s Fourteenth Amendment equal protection claims 22 without prejudice because he had not alleged any facts to support the claim. Id. at 4. 23 III. SCREENING OF FIRST AMENDED COMPLAINT 24 Plaintiff has not, in his First Amended Complaint, cured the deficiencies of the original 25 complaint that the Court had identified for the Plaintiff. Id. at 4-7. Rather, the only significant 26 difference between the First Amended Complaint and the original complaint is that Plaintiff has 1 deleted those allegations underlying the claim that the Court dismissed with prejudice: that Jane 2 Doe was negligent in providing medical services. Cf. ECF No. 1-1 at 4-11 with ECF No. 5 at 4-11. 3 Plaintiff has not alleged any facts in his First Amended Complaint that he suffered a 4 significant injury or that the delay in Plaintiff’s receipt of the tetanus shot led to further significant 5 injury. Rather, his First Amended Complaint merely repeats the allegations of the original 6 complaint that the Court found deficient. Cf. ECF No. 1-1 at 4-8 with ECF No. 5 at 4-8. 7 Accordingly, the First Amended Complaint is deficient for the same reasons that the original 8 complaint had failed to state a colorable claim under the Eighth Amendment arising from medical 9 treatment. 10 Plaintiff has not alleged any facts in his First Amended Complaint raising a plausible 11 inference that any subordinate of the supervisor defendants engaged in unconstitutional conduct. 12 Plaintiff has not alleged any facts suggesting that any supervisor defendant was directly involved 13 in or acquiesced to a subordinate’s unconstitutional conduct. Rather, his First Amended 14 Complaint merely repeats the allegations of the original complaint that the Court found deficient. 15 Accordingly, the First Amended Complaint is deficient for the same reasons that the original 16 complaint had failed to state a colorable claim for supervisor liability under the Eighth Amendment 17 arising from medical treatment. 18 Plaintiff has, again, failed to allege any facts in his First Amended Complaint that would 19 support a Fourteenth Amendment equal protection claim. Accordingly, the First Amended 20 Complaint is deficient for the same reasons that the original complaint had failed to state a 21 colorable claim under the Fourteenth Amendment equal protection clause. 22 In his First Amended Complaint, Plaintiff has also added High Desert State Prison – 23 Medical Department to the caption of his complaint as a defendant. Plaintiff has not alleged any 24 facts within the First Amended Complaint identifying High Desert State Prison – Medical 25 Department as a defendant. Plaintiff has not alleged any acts attributable to High Desert State 26 Prison – Medical Department in any of his claims in the First Amended Complaint. Adding High 1 Desert State Prison – Medical Department to the caption of his complaint does not cure any of the 2 deficiencies of the original complaint that the Court identified in dismissing that complaint without 3 prejudice. 4 The Court notified Plaintiff of the deficiencies of each of the claims in the original complaint 5 and provided Plaintiff an opportunity to amend those claims and cure those deficiencies. ECF No. 6 3. Plaintiff has filed an amended complaint. Plaintiff has not alleged any facts in his First 7 Amended Complaint curing the deficiencies that were noted by the Court. Rather, Plaintiff has 8 repeated the same allegations that the Court notified Plaintiff were insufficient to state a colorable 9 claim. The Court also notified Plaintiff that the Court would dismiss this action with prejudice for 10 failure to state a colorable claim if he failed to file an amended complaint curing the deficiencies of 11 the original complaint. Id. at 8. As the First Amended Complaint does not cure the deficiencies of 12 the original complaint, the Court will dismiss the First Amended Complaint with prejudice as 13 amendment would be futile for failure to state a claim. 14 IV. CONCLUSION 15 Therefore, 16 THE COURT ORDERS that Plaintiff's application to proceed in forma pauperis (ECF No. 17 1) without having to prepay the full filing fee is GRANTED. Plaintiff will not be required to pay an 18 initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 19 1915, as amended by the Prison Litigation Reform Act. The movant herein is permitted to 20 maintain this action to conclusion without the necessity of prepayment of fees or costs or the 21 giving of security therefor. This order granting in forma pauperis status will not extend to the 22 issuance or service of subpoenas at government expense. 23 THE COURT FURTHER ORDERS that, pursuant to 28 U.S.C. § 1915, as amended by the 24 Prison Litigation Reform Act, the Nevada Department of Corrections will forward payments from 25 the account of ROBERT F. WILLIAMS, INMATE PRISONER #92026, to the Clerk of the United 26 States District Court, District of Nevada, 20% of the preceding month's deposits (in months that 1 || the account exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk 2 || of the Court will send a copy of this order to the Finance Division of the Clerk’s Office. The Clerk 3 || will send a copy of this order to the attention of Chief of Inmate Services for the Nevada 4 || Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 5 THE COURT FURTHER ORDERS that, even if this action is dismissed, or is otherwise 6 || unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. §1915, as amended by the 7 || Prison Litigation Reform Act. 8 THE COURT FURTHER ORDERS that the operative complaint is the First Amended 9 || Complaint (ECF No. 5). The Clerk of the Court will send Plaintiff a courtesy copy of the First 10 || Amended Complaint. 11 THE COURT FURTHER ORDERS that Plaintiff's First Amended Complaint (ECF No. 5) is 12 || DISMISSED in its entirety, with prejudice as amendment would be futile, for failure to state a 13 || colorable claim. 14 THE COURT FURTHER ORDERS that the Clerk of the Court close the case and enter 15 || judgment accordingly. 16 THE COURT CERTIFIES that any in forma pauperis appeal from this order would not be 17 || taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). 18 19 20|| DATED THIS _'St gay or February aoa / Ko 21 Kent Dawson 22 United States District Judge 23 24 25 26 27