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Flowers v. Baca

United States District Court, D. Nevada

September 29, 2014

JOHN FLOWERS, Plaintiff,
ISIDRO BACA et al., Defendants.


ROBERT C. JONES, District Judge.

This is a prisoner civil rights complaint pursuant to 42 U.S.C. § 1983. The Court now screens the Complaint under 28 U.S.C. § 1915A. Several other motions are also pending before the Court.


Plaintiff John Flowers has sued multiple defendants for events that took place while he was incarcerated at the Northern Nevada Correctional Center. Defendants are Psychiatrist Dr. Ronald Centric, Warden Isidro Baca, Psychiatrist Dr. John Harris, Psychiatrist Dr. Stone, Psychiatrist Dr. Spiro, Assistant Warden Lisa Walsh, Nurse Terri Jacobs, NDOC Director Greg Cox, Nurse John F. Keast, and NDOC Medical Director Dr. Bannister. Plaintiff alleges three counts and seeks monetary damages, injunctive relief, and declaratory relief. The Court hereby screens the Complaint and defers a decision on the application to proceed in forma pauperis at this time. The Court grants Plaintiff's motion to depart from the § 1983 civil rights court-approved form and to submit an expanded written complaint.

Plaintiff alleges that since 1997, he has been physically forced to take the psychiatric medication Zyprexa at more than three times the maximum recommended dosage. Eli Lilly, the drug manufacturer, had warned psychiatrists about the dangers of prescribing Zyprexa which included diabetes, severe weight gain, and impaired judgment. Plaintiff never knew about these dangers until November 2012. In 2003, Eli Lilly contacted psychiatrists and users of Zyprexa in a class action lawsuit and awarded monetary damages to people in excess of $250, 000. The NDOC Medical Department never informed patients of the compensation due to those patients who developed diabetes, such as Plaintiff.

Plaintiff was recently diagnosed with Type II diabetes as a result of Defendants "deliberate indifference" through the use of the forced psychotropic drug. On November 18, 2012, Plaintiff filed a grievance concerning the forced administration of the drug and expressed concern about the dosage being prescribed by his treating psychiatrists. Keast denied Plaintiff's grievance. On December 5, 2012, Plaintiff filed a grievance complaining that he could not file the appropriate legal documents or convey information to his legal counsel in a coherent manner with the current dosage of forced drugs because the drugs rendered him incompetent to assist in prosecuting his claims. On February 26, 2013, Plaintiff filed a grievance requesting a different kind of psychotropic drug or a lower dosage of Zyprexa because of the known adverse side effects. Walsh denied the grievance. Keast also denied Plaintiff's request for a lower dosage. On April 29, 2013, Plaintiff filed a first level grievance requesting the least debilitating dosage of the drug that could be used with his treatment. Both Baca and Jacobs reviewed the grievance, which was ultimately denied. On May 28, 2013, Plaintiff filed a medical grievance and requested a lower dosage or a different drug because he wanted to pursue post conviction litigation. Jacobs denied the grievance. On March 24, 2014, Plaintiff filed a grievance requesting a drug that did not interfere "metabolically" and that did not cause diabetes. His grievance was denied.

Dr. Centric treated Plaintiff from 2003 through 2013 and had forcibly prescribed Plaintiff a "daily cocktail of drugs" that made Plaintiff physically ill and mentally incompetent to pursue a legal remedy. Dr. Centric refused to lower Plaintiff's dangerously high dosage of Zyprexa and failed to notify Plaintiff of the dangers of the drug and about the class action lawsuit. Plaintiff developed diabetes and severe weight gain due to the forced application of Zyprexa. Dr. Harris failed to inform Plaintiff of the dangers of Zyprexa causing Plaintiff to develop diabetes and severe weight gain. Dr. Spiro treated Plaintiff from 2003 through 2013 and had prescribed Plaintiff dangerous amounts of Zyprexa. Dr. Stone had "rubber stamped" prior medical evaluations and treatments, and Dr. Bannister had personal knowledge of Plaintiff's complaints. Plaintiff alleges that Cox is liable due to the acknowledgment of former NDOC directors that Zyprexa was dangerous.


A. Screening

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: (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 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).

Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citations omitted).

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).

Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner's claims lack an arguable basis 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 ...

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