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Tagle v. State

United States District Court, D. Nevada

February 10, 2017

VICTOR TAGLE, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          SCREENING ORDER AND REPORT AND RECOMMENDATION

          C.W. Hoffman, Jr. United States Magistrate Judge

         Plaintiff Victor Tagle is an inmate in the custody of the Nevada Department of Corrections who is proceeding pro se. Plaintiff submitted a civil rights complaint under 42 U.S.C. § 1983 (ECF No. 1-1) dated November 9, 2015, an amended complaint (ECF No. 2) dated December 10, 2015, a “tort action” (ECF No. 6) dated September 6, 2016, and two applications to proceed in forma pauperis (ECF Nos. 1, 5). Plaintiff also filed three miscellaneous motions (ECF Nos. 7, 10, 14).

         I. IN FORMA PAUPERIS APPLICATIONS

         As a preliminary matter, the court notes that Plaintiff has “three strikes” under the Prison Litigation Reform Act.[1] Under 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more prior occassions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,” he may not proceed in forma pauperis, and, instead, must pay the full $350.00 filing fee in advance unless he is “under imminent danger of serious physical injury.”

         Given that Plaintiff’s “tort action” (ECF No. 6) alleges that prison officials have attempted to murder him by poisoning him and otherwise tampering with his food and medication, and that prison officials have been deliberately indifferent to his medical needs, the court finds that this case falls within the “imminent danger of serious physical injury” exception and therefore will consider Plaintiff’s request to proceed in forma pauperis. Although some of Plaintiff’s claims in the “tort action” do not satisfy the imminent danger standard, the court will consider those claims because “qualifying prisoners can file their entire complaint [in forma pauperis]; the exception does not operate on a claim-by-claim basis or apply to only certain types of relief.” Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007).

         Plaintiff submitted two applications to proceed in forma pauperis. (ECF Nos. 1, 5). The court will review the most recent application, which is filed in the court’s docket at ECF No. 5. Plaintiff submitted the declaration required by 28 U.S.C. §1915(a) showing an inability to prepay fees and costs or to give security for them. Based on the information regarding Plaintiff’s financial status, the court finds Plaintiff is unable to pay an initial installment toward the full filing fee required under 28 U.S.C. § 1915(b). However, Plaintiff will be required to make installment payments toward the full $350.00 filing fee when he has funds available. Plaintiff’s request to proceed in forma pauperis (ECF No. 5) therefore will be granted, and Plainitff’s previous request to proceed in forma pauperis (ECF No. 1) will be denied as moot. The court now screens Plaintiff’s complaints under 28 U.S.C. § 1915A.

         II. SCREENING STANDARD

         Federal courts must conduct a preliminary screening in any civil case “in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 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. Id. § 1915A(b)(1),(2). In addition to the screening requirements under § 1915A, under the Prison Litigation Reform Act, the court must dismiss the case if “the allegation of poverty is untrue” or if the court determines 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.” Id. § 1915(e)(2).

         Dismissal for failure to state a claim under § 1915A incorporates the standard for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). To survive § 1915A review, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court liberally construes pro se civil rights complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (quoting Iqbal, 556 U.S. at 678).

         In considering whether the complaint is sufficient to state a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although 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. Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         III. SCREENING OF COMPLAINT

         A. Plaintiff’s Second Amended Complaint (ECF No. 6) is the Operative Pleading

         In his complaint and amended complaint, Plaintiff asserts that his constitutional rights were violated because the Eighth Judicial District Court’s ADR Commissioner, Chris A. Beecroft, Jr., allegedly accepted bribes in a case involving Plaintiff, resulting in a loss of Plaintiff’s money and property. (See Compl. (ECF No. 1-1); Am. Compl. (ECF No. 2).) Plaintiff sues Defendants Chris A. Beecroft, the State of Nevada, and unnamed Eighth Judicial District Court clerks. (Am. Compl. at 1-3.) In his “tort action”-which the court construes as a second amended complaint and will reference as the second amended complaint-Plaintiff makes various allegations regarding his conditions of confinement that date back to 2011. (See Tort Action (ECF No. 6).) The caption in the second amended complaint references the State of Nevada, the Nevada Department of Corrections, and Nevada Department of Corrections employees as defendants, though various individuals are referred to by name throughout the second amended complaint. (Id. at 1.)

         It is a “well-established doctrine that an amended pleading supersedes the original pleading.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, “the original pleading no longer performs any function and is treated thereafter as non-existent.” Id. (quotation omitted). Thus, parties and claims that are mentioned in the original complaint that are not included in an amended complaint are no longer part of the case, and the court cannot refer to a prior complaint to make an amended complaint complete. See id.

         Here, Plaintiff’s second amended complaint dealing with his conditions of confinement supersedes his complaint and first amended complaint dealing with Chris Beecroft and the state court proceedings. Thus, the court will not consider the allegations in those pleadings and only will analyze the allegations in Plaintiff’s second amended complaint. Plaintiff is advised that going forward, the operative complaint in this case is Plaintiff’s second amended complaint (ECF No. 6).

         B. Background

         In his second amended complaint, Plaintiff alleges that in 2011, he was kidnaped by a Nevada Department of Corrections guard posing as a “Metro Officer,” resulting in him being sentenced. (Tort Action (ECF No. 6) at 2.) Plaintiff further alleges that in 2011 he suffered from constipation, and that for a period of twelve weeks, he was unable to eat and lost more than one hundred pounds. (Id. at 2-3.) According to Plaintiff, during this time period, prison medical staff were giving him an anti-diarrheal medication rather than a laxative, thereby contributing to his constipation. (Id. at 3.)

         Plaintiff alleges that in 2012, he had a sore throat and was given what he was told was a baby aspirin, but that it was actually a psychotropic drug that caused him to feel euphoric for days. (Id. at 4.) Additionally, Plaintiff alleges that in 2012 he was physically assaulted and forced to take a tuberculous vaccination. (Id.) Plaintiff further alleges that in 2012 his gallbladder “burst” as a result of an unknown agent that he ingested in his food trays. (Id. at 5.) He alleges that after he returned to the prison from the hospital, a prison guard named Kenneth Wing either refused to feed him or spit in his food, and that this behavior continued until May 21, 2015, when Defendant Wing assaulted Plaintiff. (Id. at 5, 16.) According to Plaintiff, Defendant Wing claimed that Plaintiff assaulted him, resulting in Plaintiff being put in solitary confinement. (Id. at 5, 16.) Plaintiff contends that during his time in prison “multiple guards have messed with [his] food . . . by giving [him] the smallest food tray spitting in it or giving [him] spoiled food.” (Id. at 6.)

         Plaintiff alleges that on May 12, 2016, there was an unknown object in his food that became lodged in his throat. (Id. at 6.) Specifically, he contends that “something in the food stuck to my throat, got jammed between the larynx and Adam’s apple” and that the object remains in his throat. (Id. at 6, 8.) When he sought medical attention, he was given “a little green pill” that made him sleep for five days. (Id. at 6-7.) Plaintiff claims that the pill was a psychotropic drug and that prison doctors prescribe psychotropic drugs for “anything.” (Id. at 7-8.) Plaintiff contends that he specifically asked the medical provider how a pill would resolve the issue with his throat but that the provider responded, “well, ahem, arg, ah, hum . . . .” (Id. at 6.)

         Plaintiff further alleges that he went on a hunger strike in July 2016 because Mr. Wing is a sadist who has been harassing him since 2012. (Id. at 8.) After he ended his hunger strike, he alleged that on August 14, 2016, Mr. Wing fed him“food tray samples” that were “old, dry, and cold” and that should have been discarded rather than served. (Id. at 8-9.) On August 17, 2016, Plaintiff began suffering from food poisoning. (Id. at 9.) He was treated by a nurse who told him there was “bacteria” in his food and gave him Immodium, which did not help him as he continued to vomit for days. (Id.)

         Two days later, Plaintiff contends that prison guards gave him a food tray and “the lettuce was old and black, the corn was dry, old, the spaghetti was very little, and all over the plate . . . like the tray had been tosted [sic] all over.” (Id. at 10.) However, Plaintiff alleges that on the food cart, the other food trays looked fresh and orderly. (Id.) The next day, Plaintiff alleges that he became sick again but that his grievances demanding medical attention were ignored. (Id. at 11.) He alleges that prison guard Vazquez also gave him sample food trays that caused food poisoning. (Id. at 11-12.) He claims that in August of 2016, a case worker named Jeorja Powers demanded that he stop filing grievances and that she threw a 14-page stack of papers at him that hit him in the face. (Id. at 13, 16.) He also claims that Powers has been taking his mail and harassing him since May 12, 2016. (Id. at 13.) According to Plaintiff, Warden Baca “has been informed of this abuses [sic] since 5/12/16, however, he had neglected them.” (Id. at 16.) Director Sheryl Foster has been informed, too, like usual, she couldn’t care less.” (Id.)

         Although he does not group his factual allegations according to claims, at the beginning of the second amended complaint Plaintiff alleges he is asserting claims for attempted murder by poisoning, cruel and unusual punishment, intentional infliction of emotional distress, harassment, discrimination, deliberate medical neglect, deliberate indifference to serious medical needs, medical malpractice, professional neglect, deprivation of civil rights, and indifference to human pain. In the case caption, he only identifies the State of Nevada, NDOC, and NDOC’s employees as defendants.[2] (Id. at 1.) Plaintiff references various individuals throughout the complaint, but then does not seek relief against all of them in his prayer for relief. (See Id. at 1-16.) Reconciling his factual allegations with the individuals against whom he prays for relief, the court understands Plaintiff to be alleging claims against the following defendants: State of Nevada, NDOC, Kenneth Wing, Guard Vazquez, Case Worker Jeorja Powers, Warden Baca, and Director Sheryl Foster.

         Liberally construing the second amended complaint, the court understands Plaintiff to be asserting the following claims under 42 U.S.C. § 1983: (1) Eighth Amendment excessive force against Defendant Wing related to the physical assault, (2) Eighth Amendment deliberate indifference against unnamed NDOC employees for treating him for the unknown item lodged in his throat with psychotropic drugs, (3) Eighth Amendment conditions of confinement related to the spoiled food trays against Defendants Wing and Vazquez, (4) First Amendment retaliation against Defendant Powers, and (5) supervisory liability against Defendants Baca and Foster. Although ...


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