United States District Court, D. Nevada
Lausteveion Johnson, Plaintiff, Pro se Indian Springs, NV.
For A. Nguyen, Bean, also known as, Jeremy Bean, Dwight Neven, Eric Burson, G. Holliday, Isidro Baca, Jennifer Nash, John Keast, Dr Koehn, also known as, Michael Koehn, RN G. Carpenter, Rivos, also known as, Evander Rivas, Renee Baker, Defendants: Garrit Scott Pruyt, Nevada Attorney General's Office, Carson City, NV.
For Cole Morrow, Defendant: Mercedes S. Menendez, Office of the Attorney General Public Safety Division, Las Vegas, NV.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE Re: Doc. # 41
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4. Before the court is Plaintiff's motion for preliminary injunction. (Doc. # 41.) In this motion, Plaintiff asserts that he suffered injuries to his back and knees as a result of the alleged excessive force incident that is the subject of this action, and was denied a cane or wheelchair at Ely State Prison (ESP) because ESP has a " no cane or wheelchair policy." (Id. at 1-2.) He seeks an order that he be given a wheelchair while at Ely State Prison (ESP), or alternatively, that he be transferred to Northern Nevada Correctional Center (NNCC) and be issued a wheelchair. (Id. at 1.)
After a thorough review, the court recommends that Plaintiff's motion be denied.
A. Parties and Claims
Plaintiff, a pro se inmate, is in custody of the Nevada Department of Corrections (NDOC), and brings this action pursuant to 42 U.S.C. § 1983. (Pl.'s Compl., Doc. # 7 at 1.) The allegations giving rise to this action took place while Plaintiff was housed at ESP and High Desert State Prison (HDSP). (Id.) Defendants are Isidro Baca, Renee Baker, Jeremy Bean, Eric Burson, G. Carpenter, G. Holliday, John Keast, Dr. Michael Koehn, Cole Morrow, Jennifer Nash, Dwight Neven, A. Nguyen, and Evander Rivos. (Doc. # 7, Screening Order at Doc. # 6.)
In Counts I, II and IV, Plaintiff alleges: Defendant Nguyen frequently calls Plaintiff, who is Muslim, " terrorist, " tells him he will " kick [Plaintiff's] ass, " and has said " Muslims waged war on our American freedom and democracy, " " Muslims should be killed by dropping a bomb on them, " and " the Muslim god is the devil." (Doc. # 7 at 6-7.) On January 1, 2012, an officer told Plaintiff to file a grievance because he had not received his Halal/Kosher meal. (Id. at 8.) As Plaintiff walked over to get a grievance form, Nguyen asked Plaintiff where he was going, and Plaintiff told him he was going to get a grievance form. (Id. at 8, 10.) Nguyen looked at the " kuffi" Plaintiff was wearing and told Plaintiff, " let's go terrorist, " and pointed Plaintiff toward the grievance forms. (Id.) When Plaintiff started in that direction, Nguyen suddenly and violently struck him on his upper back and shoulder, grabbed Plaintiff's left arm and violently shoved it behind and up Plaintiff's back and tried to ram Plaintiff into a concrete wall. (Id.) Plaintiff turned toward Nguyen, and Nguyen started punching him repeatedly. (Id. at 8-9, 10.) Plaintiff alleges that Nguyen targeted him because he is Muslim and was acting in retaliation for Plaintiff's attempt to file a grievance. (Id. at 10, 22-23.) Plaintiff freed himself and ran to the yard and voluntarily laid face down on the ground. (Id. at 9, 10.) Four Doe officers approached and repeatedly shoved their knees into Plaintiff's lower back. (Id. at 9, 12.) He claims he was beaten, slammed to the ground and dragged for fifteen minutes and then was slammed onto a medical cart. (Id.) Defendant Holliday yelled at Plaintiff: " They should have killed you! Next time you get a grievance I'm gonna kill yo ass!" (Id.)
Plaintiff was transported to medical by cart. Nguyen came to the hospital later and told Plaintiff: " I told you I was gonna get you." (Id. at 12.) Later, defendant Holliday brought Plaintiff back to his cell, and violently struck him two or three times in the right jaw, causing Plaintiff (who was handcuffed) to fall. (Id. at 9, 12-13.) Holliday said: " No! I bet yo ass won't file another grievance." (Id.) Plaintiff's mouth was full of blood, he was dizzy, and his jaw was swollen and bruised for two to three weeks. (Id.) Plaintiff claims that Holliday targeted him because he is Muslim and retaliated against him for attempting to file a grievance. (Id.) He avers that a Doe officer failed to intervene when Holliday attacked Plaintiff and neither officer allowed Plaintiff to seek medical attention. (Id. at 14.) Plaintiff sustained three loose teeth as well as neck, shoulder and back injuries from the attacks. (Id. at 10-11, 13.) He contends that his back injury has made it necessary for him to use a walking cane at age 28. (Id. at 11-12.) He claims that doctors and mental health staff have concluded that he developed Post Traumatic Stress Disorder (PTSD) from the incident, and he suffers from nightmares, loss of appetite and insomnia. (Id. at 12.) He contends that defendants Nash, Baca, Keast and Carpenter denied his grievances regarding the incident. (Id.) Now that he is at ESP, he claims that defendants Baker, Koehn and Rivos have refused to allow him to use a walking cane, and without it, he falls repeatedly and has injured his knee. (Id. at 14-15.) He claims that without his cane he cannot exercise. (Id. at 15.) In addition, he is unable to shower because he does not have a cane to balance in the shower, and has been forced to wash with toilet water in his cell. (Id. at 15.)
On screening Plaintiff was permitted to proceed with the following claims steaming from the allegations set forth in Counts I, II, and IV: (1) Eighth Amendment conditions of confinement against Baker, Koehn and Rivos; (2) Eighth Amendment excessive force against Nguyen and Holliday; (3) Eighth Amendment deliberate indifference to a serious medical need against Holliday, Baker, Koehn and Rivos; (4) Eighth Amendment supervisory liability claims against Nash, Baca, Keast and Carpenter; (5) retaliation against Nguyen and Holliday; and (6) equal protection against Nguyen and Holliday. (Doc. # 6 at 5-11.)
In Counts III and V, Plaintiff alleges: Nguyen filed a notice of charges against Plaintiff about the incident described above, and defendants Neven, Morrow, Bean, and Burson conspired to find Plaintiff guilty of the notice of charges even though they admitted he was innocent. (Doc. # 7 at 19-20.) They stated that if Plaintiff was not found guilty he would file another lawsuit and be able to use that against the defendants. (Id. at 20.) Thus, Plaintiff contends they retaliated against him for the filing of other civil rights lawsuits. (Id.) Plaintiff had a disciplinary hearing, but contends he was not given an impartial hearing officer, was not allowed to speak on his own behalf to explain his side of the story, and was not allowed to call witnesses. (Id. at 24.) Plaintiff was found guilty and was sentenced to 572 days in disciplinary segregation, among other sanctions. (Id. at 20-21, 24.) Thereafter, Morrow held a classification hearing, reviewed video and determined Plaintiff was not at fault and ordered him released from disciplinary segregation. (Id. at 20 .) Then, three days later, Bean informed Plaintiff that he, Morrow, Burson and Neven had met and determined they were not going to dismiss the charges because Plaintiff would only use that as evidence in a lawsuit. (Id.) Plaintiff was sent back to disciplinary segregation. (Id.)
On screening, the court concluded that Plaintiff states a colorable Fourteenth Amendment due process claim against defendants Neven, Morrow, Bean and Burson based on these allegations. (Doc. # 6 at 13.)
B. Plaintiff's Motion (Doc. # 41)
Plaintiff requests an order from the court that he be provided with a wheelchair at ESP, or that he be transferred to NNCC and be issued a wheelchair. (Doc. # 41 at 1.) Plaintiff contends that he suffered upper and lower back injuries as a result of the alleged January 1, 2012 excessive force incident that is the subject of this action. (Doc. # 41 at 3.) He states that because of his injuries he experiences sharp pain and falls down. (Id.) Plaintiff claims that he notified HDSP's medical department repeatedly that he kept falling due to his injuries, and requested a cane to prevent further injuries, to no avail. (Id. at 3-4.) Plaintiff was then transferred to ESP on February 1, 2012 to serve out his disciplinary segregation, but was not provided with a walking cane. (Id. at 4.) Plaintiff asserts that ESP refused to give him a cane, repeatedly citing security concerns, so Plaintiff requested a wheelchair, but that request was denied as well. (Id.) Plaintiff continued to send kites requesting a cane or wheelchair as he continued to fall as a result of his condition, but his requests were refused. (Id. at 5.)
Plaintiff contends that if his request for relief is not granted, he will suffer irreparable harm, because without a wheelchair he will continue to fall on a daily basis, and will never be able to shower. (Id. at 6.) He also claims he is likely to succeed on the merits on his Eighth Amendment claims, as he can prove the excessive force allegations and resulting injuries that have led to his condition to which Defendants have been deliberately indifferent. (Id. at 7-8.) He states that the balance of hardships tips in his favor because the threat of harm to Plaintiff if he is not provided a wheelchair is great, while Defendants will face no burden if the request for an injunction is granted. (Id. at 9.) Finally, Plaintiff argues that this is in the public interest because his current condition violates the Constitution. (Id. at 9-10.)
In support of his motion, Plaintiff filed a declaration that reiterates his version of events. (Doc. # 41 at 55-57, 59-63.) He also provided a declaration of another inmate who attests that he witnessed Plaintiff fall over thirty times in two months. (Id. at 58.) He submitted various kites and grievances where he reported having fallen as a result of his injuries, and requested a cane or wheelchair. (Doc. # 41 at 14-54.)
C. Defendants' Response (Doc. # 44)
Defendants filed an initial response to Plaintiff's motion, arguing that Plaintiff provided no medical support indicating that he needs a wheelchair. (Doc. # 44 at 4.) They likewise contend that none of the grievances or kites he submitted in support of his motion provide any specific details supporting his contention that he needs a wheelchair but was not provided one. (Id.) As such, they claim Plaintiff has not established a likelihood of success on the merits, and his motion should be denied. (Id.)
D. Plaintiff's Reply (Doc. # 45)
In his reply brief, Plaintiff contends that he provided sixty-two pages of support for his request for an injunction, including declarations, kites and grievances, and Defendants made no mention of any of this evidence in their response. (Doc. # 45 at 4.)
E. Plaintiff's Request for a Hearing; Defendants' Submission of Plaintiff's Medical Records & Objection to Hearing (Docs. # ...