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Stuckey v. Lombardo

United States District Court, D. Nevada

July 14, 2017

JAMES L. STUCKEY, Plaintiff,
v.
JOSEPH LOMBARDO et al., Defendants.

          SCREENING ORDER ON FIRST AMENDED COMPLAINT

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         This is a pro se amended civil rights complaint filed pursuant to 42 U.S.C. § 1983 by an inmate in the custody of the Clark County Detention Center (“CCDC”). Plaintiff has submitted an application to proceed in forma pauperis and an amended civil rights complaint. (ECF No. 7, 10). The Court now addresses the application to proceed in forma pauperis and screens Plaintiff's amended civil rights complaint pursuant to 28 U.S.C. § 1915A.

         I. IN FORMA PAUPERIS APPLICATION

         Before the Court is Plaintiff's application to proceed in forma pauperis. (ECF No. 7). Based on the information regarding Plaintiff's financial status, the Court finds that Plaintiff is not able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 1915. Plaintiff will, however, be required to make monthly payments toward the full $350.00 filing fee when he has funds available.

         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. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, 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 (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. Lab. 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). 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.

         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 FIRST AMENDED COMPLAINT

         In the first amended complaint, Plaintiff sues multiple defendants for events that took place while Plaintiff was incarcerated at the Clark County Detention Center (“CCDC”). (ECF No. 10 at 1). Plaintiff sues Defendants Sheriff Joseph Lombardo, Deputy Chief of Operations Suey, Correctional Officer #S7134A, Correctional Officer G. Sanchez (#6894), and Correctional Officer #C8837D. (Id. at 2-3). Plaintiff alleges three counts and seeks monetary damages and injunctive relief. (Id. at 6, 9).

         The first amended complaint alleges the following: On August 28, 2015, a court sentenced Plaintiff to serve a 180-day-sentence for a misdemeanor offense in the CCDC. (Id. at 3). Jail officials housed Plaintiff, a misdemeanor offender, with convicted felons awaiting transport to prison and pre-trial detainee felons facing multiple years of prison for murder, battery with a deadly weapon, and kidnapping. (Id.) Plaintiff's housing situation subjected him to mental duress, anxiety, and looming physical harm. (Id. at 4). Plaintiff was housed in CCDC's Unit 3B North Tower. (Id.)

         On October 27, 2015, Plaintiff kited Sanchez about the “looming threat [Plaintiff] felt of a physical attack at the hands of convicted and pretrial felons.” (Id.) Plaintiff asked Sanchez to house Plaintiff in a unit that reflected the charges he was serving his time for. (Id.) Sanchez responded that Plaintiff was “housed correctly.” (Id.) On November 1, 2015, there was a fight in Plaintiff's housing unit between a misdemeanor offender and a pretrial felon. (Id.) On November 2, 2015, Plaintiff informed Suey about these incidents. (Id.) Neither Sanchez nor Suey did anything to move Plaintiff “from an inherently dangerous and potentially confrontational situation with ...


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