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Gilberto Carrillo v. Douglas Gillespie

May 14, 2013

GILBERTO CARRILLO,
PLAINTIFF,
v.
DOUGLAS GILLESPIE, ET AL.,
DEFENDANTS.



ORDER

Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has filed a complaint in state court, which defendants have removed. This matter comes before the court regarding several motions, as well as the screening of the amended complaint.

I. Procedural History

Plaintiff, a Nevada state prisoner, filed a pro se civil rights complaint on September 5, 2012, in the Eighth Judicial District Court of the State of Nevada, Clark County. Defendant Gillespie was served with the complaint on November 30, 2012, and defendant Clark County Detention Center was served on December 11, 2012. Defendants filed a notice of removal in this court on December 19, 2012. (ECF No. 1). "The district courts shall have original jurisdiction of all civil actions under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Plaintiff has alleged a violation of his rights under the U.S. Constitution. Defendants appropriately removed the action to this court pursuant to 28 U.S.C. § 1441, as this court has original jurisdiction over the claims raised in the complaint.

On December 27, 2012, defendants Clark County Detention Center and defendant Gillespie filed separate motions to dismiss the complaint. (ECF Nos. 5 & 6). On March 26, 2013, plaintiff filed a motion to file a first amended complaint, along with a proposed first amended complaint. (ECF Nos. 38 & 38-1). A party may amend his pleading once as a matter of course any time before a responsive pleading has been filed; otherwise, he may amend only by leave of court or by written consent of the adverse party. Fed. R. Civ. P. 15(a). Respondents filed two motions to dismiss before plaintiff sought leave to amend, and those motion are not responsive pleadings. Morrison v. Mahoney, 399 F.3d 1042, 1045-47 (9th Cir. 2005). Plaintiff's motion to file the amended complaint is granted and this action shall proceed on the amended complaint. Defendants' motions to dismiss are denied as moot. The court must now screen the amended complaint.

II. Screening Standard

Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d. 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner's claim, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d. 1103, 1106 (9th Cir. 1995).

Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.; see Papasan v. Allain, 478 U.S. 265, 286 (1986).

Additionally, a reviewing court should "begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

III. Screening of the Amended Complaint

Plaintiff brings action against the following: Sergeant K. Bussell, of the Las Vegas Metropolitan Police Department (LVMPD); R. Christopherson, LVMPD police officer; Dwain Cotwright, High Desert State Prison (HDSP) transportation officer; LVMPD nurse "Daryl"; Raul Diaz, HDSP transportation officer; J. Ferry, LVMPD police officer; Douglas Gillespie, Clark County sheriff; Francis J. Kim, HDSP property room sergeant; D. Neven, HDSP warden; Sgt. Quinn, HDSP property room officer; M. Razo, LVMPD police officer; and A. Ritz, HDSP case worker.

Plaintiff alleges that on June 13, 2012, he was transported from HDSP to "CCDC/the Regional Justice Center Holding" area for a court hearing. Plaintiff alleges that he was on protective custody status as a non-active former Sureno gang member, and that he told certain defendants that he should not be placed in a cell with current Sureno gang member Milo Hicks, who was also present at CCDC at the same time as plaintiff. Plaintiff alleges that in the holding area, a physical altercation occurred between himself and inmate Milo Hicks. Plaintiff alleges that in connection with the ...


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