United States District Court, D. Nevada
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
is an inmate in the custody of the Nevada Department of
Corrections (NDOC), proceeding pro se with this action
pursuant to 42 U.S.C. § 1983. The events giving rise to
this action took place while Plaintiff was housed at Northern
Nevada Correctional Center (NNCC). Plaintiff filed his
original complaint on December 14, 2015, and in the December
22, 2016 screening order, he was allowed to proceed with an
Eighth Amendment failure to protect claim against Miller,
Case, Scott [Kahler], Skulstad, and Meares. (ECF No. 4.) The
claim was based on allegations that Plaintiff requested
protective segregation three times after a local media report
on Plaintiff's alleged crime of lewd activities with a
minor over fourteen in California, but the requests were
denied because Plaintiff could not identify a specific
threat. Then, on December 11, 2013, inmate Stubbs, whom
Plaintiff claims has a violent history, complained to
Officers Miller and Case about having to work with
“that child molester.” This caused Plaintiff to
worry and request a shift change, which was denied. The next
day, Stubbs attacked Plaintiff in the culinary area where he
worked by throwing boiling water and oil on him, causing
serious injuries. The claim was dismissed as to Baca and
Walsh, finding that Plaintiff failed to state cognizable
claims against them because he did not allege they knew
Plaintiff requested protective segregation.
March 1, 2017, Plaintiff filed a motion to join additional
parties to the case. (ECF No. 40.) He asked for leave to join
Associate Warden Shreckengost and Warden Baca as he claimed
that there was a shortage of correctional officers in the
culinary area and staffing was the responsibility of these
individuals. He also claimed that Baca implemented a policy
that forced physically vulnerable prisoners to work in
potentially dangerous situations. He further sought to
dismiss Skulstad and Scott [Kahler], stating they were not
directly responsible for Plaintiff's treatment.
March 7, 2017, the court granted Plaintiff's motion to
the extent that the court gave him leave to file a motion to
amend after the expiration of the deadline to do so. (ECF No.
44.) The court advised Plaintiff that any such motion had to
include a proposed amended pleading, and gave him seven days
to lodge his motion and proposed amended complaint, and
permitted the filing of a response and reply briefs.
filed his motion and proposed amended complaint. (ECF No.
49.) The court granted the motion and ordered the Clerk to
file the amended complaint. (ECF No. 51.) The court ordered
Skulstad and Scott [Kahler] dismissed pursuant to
Plaintiff's request. (Id.) The court ordered the
Attorney General's Office to file a notice advising
whether it accepted service for Baca and Shreckengost.
(Id.) On April 4, 2017, the Attorney General's
Office filed a notice of acceptance of service on behalf of
Shreckengost and Baca (and it had previously accepted service
for Case, Meares and Miller). (ECF No. 57.) On May 9, 2017,
Defendants filed an errata to the notice of acceptance of
service, noting that while it previously accepted service on
behalf of Baca, this was in error because Baca had been
dismissed with prejudice in the original screening order.
(ECF No. 69.) They simultaneously filed a motion for
clarification noting that the amended complaint failed to
remove Skulstad and Scott [Kahler], and argued that the
amended complaint included the same claims against Baca that
had previously been dismissed with prejudice. (ECF No. 70.)
court held a hearing on May 22, 2017, where it discussed the
status of Scott [Kahler], Skulstad and Baca. (Minutes at ECF
No. 73.) The court ordered that Scott [Kahler] and Skulstad
were dismissed. (Id.) The court amended its prior
order, and stated that the motion for leave to amend was not
granted with respect to Baca, but gave Plaintiff leave to
file a supplemental pleading with respect to Baca.
(Id.) Defendants were permitted to file a response
and Plaintiff was allowed to file a reply. (Id.)
timely filed his supplemental pleading on June 2, 2017. (ECF
No. 74.) Defendants filed their response on June 12, 2017.
(ECF No. 75.) Plaintiff has not filed a reply. The court will
now address the supplemental pleading.
Standard of Review
reviewing the complaint under 12(b)(6) [and 28 U.S.C. §
1915(e)(2)(B)(ii) or 28 U.S.C. § 1915A(b)(1), the court
must accept as true the allegations of the complaint,
Hosp. Bldg. Co. v. Trustee of Rex. Hosp. 425 U.S.
738, 740 (1976), construe the pleadings in the light most
favorable to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969). In addition, allegations in pro se
complaints are held to less stringent standards than formal
pleadings drafted by lawyers, and must be liberally
construed. See Hughes v. Rowe, 449 U.S. 5, 9 (1980);
Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir.
complaint must contain factual allegations sufficient to
“raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). “The pleading must contain
something more … than … a statement of facts
that merely creates a suspicion [of] a legally cognizable
right of action.” Id. (citation omitted). At a
minimum, a plaintiff should state “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570.
Eighth Amendment Failure to Protect
the Eighth Amendment, prison conditions should not
“involve the wanton and unnecessary infliction of
pain” or be “grossly disproportionate to the
severity of the crime warranting imprisonment.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Although prison conditions may be, and often are, restrictive
and harsh, prison officials “must ensure that inmates
receive adequate food, clothing, shelter, and medical care,
and must ‘take reasonable measures to guarantee ...