Partridge v. Dzurenda

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CHARLES PARTRIDGE, Case No. 2:19-cv-01355-RFB-VCF 4 Plaintiff SCREENING ORDER 5 v. 6 JAMES DZURENDA et al., 7 Defendants [8] 9 Plaintiff, who is incarcerated in the custody of the Nevada Department of 10 Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 11 and has filed an Application to Proceed In Forma Pauperis. (ECF Nos. 1, 1-1). The matter 12 of the filing fee will be temporarily deferred. The Court now screens Plaintiff’s civil rights 13 complaint pursuant to 28 U.S.C. § 1915A. 14 I. SCREENING STANDARD 15 Federal courts must conduct a preliminary screening in any case in which an 16 incarcerated person seeks redress from a governmental entity or officer or employee of 17 a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any 18 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 19 upon which relief may be granted, or seek monetary relief from a defendant who is 20 immune from such relief. Id. at § 1915A(b)(1), (2). Pro se pleadings, however, must be 21 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 22 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential elements: 23 (1) the violation of a right secured by the Constitution or laws of the United States, and 24 (2) that the alleged violation was committed by a person acting under color of state law. 25 West v. Atkins, 487 U.S. 42, 48 (1988). 26 In addition to the screening requirements under § 1915A, pursuant to the Prison 27 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 28 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 1 to state a claim on which relief may be granted, or seeks monetary relief against a 2 defendant who is immune from such relief.” 28 U.S.C. § 1915 (e)(2). Dismissal of a 3 complaint for failure to state a claim upon which relief can be granted is provided for in 4 Federal Rule of Civil Procedure 12(b)(6), and courts apply the same standard under § 5 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 6 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 7 the complaint with directions as to curing its deficiencies, unless it is clear from the face 8 of the complaint that the deficiencies could not be cured by amendment. Cato v. United 9 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 10 Review under Rule 12(b)(6) is essentially a ruling on a question of law. Chappel v. 11 Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim 12 is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the 13 claim that would entitle him or her to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 14 1999) (citation omitted). In making this determination, the court takes as true all 15 allegations of material fact stated in the complaint, and the court construes them in the 16 light most favorable to the plaintiff. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 17 1996). Allegations of a pro se complainant are held to less stringent standards than formal 18 pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard 19 under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 20 more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 555 21 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 22 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 23 that, because they are no more than mere conclusions, are not entitled to the assumption 24 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 25 the framework of a complaint, they must be supported with factual allegations.” Id. “When 26 there are well-pleaded factual allegations, a court should assume their veracity and then 27 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 28 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 1 requires the reviewing court to draw on its judicial experience and common sense.” Id. 2 Finally, all or part of a complaint filed by an incarcerated person may therefore be 3 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 4 This includes claims based on legal conclusions that are untenable (e.g., claims against 5 defendants who are immune from suit or claims of infringement of a legal interest which 6 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 7 fantastic or delusional scenarios). Neitzke v. Williams, 490 U.S. 319 , 327–28 (1989). See 8 also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 9 II. SCREENING OF COMPLAINT 10 In the complaint, Plaintiff sues multiple defendants for events that took place while 11 Plaintiff was incarcerated at High Desert State Prison (“HDSP”). (ECF No. 1-1 at 1). 12 Plaintiff sues Defendants NDOC Director James Dzurenda, Warden Brian Williams Sr., 13 Romeo Aranas, and John/Jane Does. (Id. at 2-5). Plaintiff alleges three counts and 14 seeks monetary damages. (Id. at 8, 11). 15 The complaint alleges the following: Plaintiff’s big toenails on both feet were 16 growing in the wrong direction toward and into the next toe causing severe pain. (Id. at 17 5). Plaintiff’s toenails were really thick which made cutting and trimming the toenails 18 impossible. (Id.) The only way to fix the problem was to remove the toenails. (Id.) 19 However, the medical department refused “any and all treatment of the problem.” (Id.) 20 Plaintiff waited 20 months for treatment and pain medication. (Id. at 7). Medical 21 personnel only gave Plaintiff two band aids to prevent his toenails from digging into the 22 neighboring toes. (Id.) The band aids did not help. (Id.) Defendants denied Plaintiff 23 treatment either in the medical department or through the grievance process. (Id.) 24 Plaintiff was in “horrible excruciating pain.” (Id.) Although medical removed both of 25 Plaintiff’s toenails in December 2018, the toenails were growing back incorrectly and 26 needed to be removed again. (Id.) 27 Plaintiff received medication and saw a medical provider every day due to a 28 pinched nerve in his neck. (Id. at 8). Every day, Plaintiff asked for pain medication and 1 when his toenails would be removed. (Id.) Every day, prison officials denied Plaintiff pain 2 medication, and nobody answered Plaintiff about his toenails. (Id.) 3 Plaintiff alleges three claims of Eighth Amendment violations. (Id. at 6-8.) The 4 Court interprets the allegations as one claim for Eighth Amendment deliberate 5 indifference to serious medical needs. 6 The Eighth Amendment prohibits the imposition of cruel and unusual punishment 7 and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, 8 and decency.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal citation omitted). A 9 prison official violates the Eighth Amendment when he acts with “deliberate indifference” 10 to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). 11 “To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective 12 standard—that the deprivation was serious enough to constitute cruel and unusual 13 punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, [14] 681 F.3d 978, 985 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 15 F.3d 1076 (9th Cir. 2014). 16 To establish the first prong, “the plaintiff must show a serious medical need by 17 demonstrating that failure to treat a prisoner’s condition could result in further significant 18 injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091 , 19 1096 (9th Cir. 2006) (internal quotations and citation omitted). To satisfy the deliberate 20 indifference prong, a plaintiff must show “(a) a purposeful act or failure to respond to a 21 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Id. 22 “Indifference may appear when prison officials deny, delay or intentionally interfere with 23 medical treatment, or it may be shown by the way in which prison physicians provide 24 medical care.” Id. (internal quotations and citation omitted). When a prisoner alleges that 25 delay of medical treatment evinces deliberate indifference, the prisoner must show that 26 the delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 27 F.2d 404, 407 (9th Cir. 1985) (citing Estelle, 429 U.S. at 106 ) (holding that “mere delay of 28 surgery, without more, is insufficient to state a claim of deliberate medical indifference”). 1 The Court finds that Plaintiff fails to allege a colorable claim for deliberate 2 indifference to serious medical needs at this time, but grants Plaintiff leave to amend. 3 The Court finds that Plaintiff simply lumps all defendants together and does not allege 4 what each specific defendant did to violate his rights. The Court notes that a defendant 5 is liable under 42 U.S.C. § 1983 “only upon a showing of personal participation by the 6 defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Additionally, although 7 Plaintiff alleges that defendants denied him treatment, it is unclear to the Court what 8 defendants said to Plaintiff about his toenails. See Franklin v. State of Or., State Welfare 9 Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (citation omitted) (holding that “[a] difference of 10 opinion between a prisoner-patient and prison medical authorities regarding treatment 11 does not give rise to a § 1983 claim”). Overall, if Plaintiff chooses to amend, he should 12 follow the directions in the form complaint and “describe exactly what each specific 13 defendant (by name) did to violate [his] rights.” Plaintiff should make more allegations 14 regarding the dates he visited with medical and the conversations that he had with specific 15 defendants about his toenails. Although the Court recognizes the use of Doe pleading, 16 Plaintiff cannot simply lump all defendants together as “Does.” The Court dismisses the 17 complaint without prejudice with leave to amend. 18 Plaintiff is granted leave to file an amended complaint to cure the deficiencies of 19 the complaint. If Plaintiff chooses to file an amended complaint, he is advised that an 20 amended complaint supersedes (replaces) the original complaint and, thus, the amended 21 complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & 22 Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was 23 named in the original complaint is irrelevant; an amended pleading supersedes the 24 original”). See also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding 25 that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims 26 in a subsequent amended complaint to preserve them for appeal). Plaintiff’s amended 27 complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes 28 to pursue in this lawsuit. Moreover, Plaintiff should file the amended complaint on this 1 Court’s approved prisoner civil rights form and it must be entitled “First Amended 2 Complaint.” 3 The Court notes that, if Plaintiff chooses to file an amended complaint curing the 4 deficiencies as outlined in this order, Plaintiff should file the amended complaint within 30 5 days from the date of entry of this order. If Plaintiff chooses not to file an amended 6 complaint curing the stated deficiencies, the Court will dismiss this case with prejudice for 7 failure to state a claim. 8 III. CONCLUSION 9 For the foregoing reasons, it is ordered that a decision on the Application to 10 Proceed In Forma Pauperis (ECF No. 1) is deferred. 11 It is further ordered that the Clerk of Court file the complaint (ECF No. 1-1) and will 12 send Plaintiff a courtesy copy of the complaint. 13 It is further ordered that the complaint (ECF No. 1-1) is dismissed in its entirety, 14 without prejudice, with leave to amend for failure to state a claim. 15 It is further ordered that, if Plaintiff chooses to file an amended complaint curing 16 the deficiencies of his complaint, as outlined in this order, Plaintiff shall file the amended 17 complaint within 30 days from the date of entry of this order. 18 It is further ordered that the Clerk of Court will send to Plaintiff the approved form 19 for filing a § 1983 complaint, instructions for the same, and a copy of his original complaint 20 (ECF No. 1-1). If Plaintiff chooses to file an amended complaint, he should use the 21 approved form and he will write the words “First Amended” above the words “Civil Rights 22 Complaint” in the caption. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 It is further ordered that, if Plaintiff fails to file an amended complaint curing the 2 deficiencies outlined in this order, this action will be dismissed with prejudice for failure to 3] state a claim. [4] 5 DATED THIS 20" day of July, 2020. me ° ts 7 RICHARSW.E, BOULWARE, II 3 UNITED STA DISTRICT JUDGE [28] -7-