United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.
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 1B 1-4.
the court is Plaintiff's Motion for Leave to Amend
Complaint. (ECF No. 23.) Defendants did not file a response.
After a thorough review, it is recommended that the motion be
granted in part and denied in part.
court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in
a civil action in which a prisoner seeks redress from a
governmental entity or office or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). “On review,
the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
complaint-- (1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(b)(1)-(2).
of a complaint for failure to state a claim upon which relief
may be granted is provided for in Federal Rule of Civil
Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii)
and 28 U.S.C. § 1915A(b)(1) track that language. Thus,
when reviewing the adequacy of a complaint under 28 U.S.C.
§ 1915(e)(2)(B)(ii) or 28 U.S.C. § 1915A(b)(1), the
court applies the same standard as is applied under Rule
12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108,
1112 (9th Cir. 2012). Review under 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) (citation
reviewing the complaint under this standard, the court must
accept as true the allegations, 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) (citations omitted). Allegations in
pro se complaints are “held to less stringent standards
than formal pleadings drafted by lawyers[.]” Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks
and citation omitted).
complaint must contain more than a “formulaic
recitation of the elements of a cause of action, ” it
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. (quoting 5 C. Wright & A. Miller, Federal
Practice & Procedure § 1216, at 235-36 (3d ed.
2004)). At a minimum, a plaintiff should state “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570; see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
dismissal should not be without leave to amend unless it is
clear from the face of the complaint that the action is
frivolous and could not be amended to state a federal claim,
or the district court lacks subject matter jurisdiction over
the action. See Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995); O'Loughlin v. Doe, 920
F.2d 614, 616 (9th Cir. 1990).
filed his original Complaint, which the court screened, and
the court determined Plaintiff could proceed with the
following: a claim for violation of the Americans with
Disabilities Act (ADA) against McDaniel, Stroud, Buencamino,
Moyle, Cox, Gedney and Baca based on allegations that he has
a mobility disability requiring a wheelchair, and Defendants
refused to accommodate him at High Desert State Prison
(HDSP); and a claim for deliberate indifference to serious
medical needs under the Eighth Amendment against McDaniel,
Stroud, Buencamino, Moyle, Cox, Gedney and Baca, based on
allegations they were aware of an order that he required a
wheelchair but disregarded the risk of his not having a
wheelchair at HDSP. (Screening Order, ECF No. 3.) The
Complaint did not contain facts to support a claim against
Romeo Aranas; therefore he was dismissed without prejudice.
now seeks leave to amend, and submits a proposed First
Amended Complaint (FAC). (ECF No. 23.) The proposed FAC names
Romeo Aranas, Tito Beuncamino, J. Murphy, Isidro Baca,
Shannon Moyle, and Karen Gedney. (ECF No. 23 at 3-5.)
Plaintiff alleges that Defendants refused to provide him with
necessary, physician-ordered hip replacement surgery;
effective pain medication to treat pain associated with his
degenerative hip disease; and transferred him to a non-ADA
compliant facility where he was deprived of a wheelchair for
sixteen months despite the fact that there was a medical
order stating that he required a wheelchair and a “flat
yard.” Specifically, he contends that in early 2015,
Gedney, Moyle, and Baca classified Plaintiff to be
transferred to HDSP, knowing of his medical restrictions.
Once at HDSP, he filed a grievance complaining of extreme
pain and difficulty using the toilet, shower, and accessing
the dining hall related to being deprived of a wheelchair. He
also noted the order for hip surgery. Murphy responded to the
grievance, but Plaintiff claims she ignored his complaints of
pain, and took no effort to see that Plaintiff got a
wheelchair, walker or handicap cell. He filed a first level
grievance, and Buencamino responded. Again, Plaintiff alleges
that his requests for a wheelchair, pain relief and surgery
were ignored. He filed a second level grievance, and Aranas
responded. Plaintiff contends that Aranas ignored
Plaintiff's medical concerns. He also contends that
Aranas, a member of the Utilization Review Panel (URP),
failed to submit Plaintiff's case concerning hip
replacement surgery. Plaintiff goes on to allege that Gedney
treated him while at Northern Nevada Correctional Center
(NNCC), and only prescribed him ibuprofen despite knowledge
that this did not alleviate his pain.
court finds that Plaintiff states colorable claims for
violation of the ADA and Eighth Amendment deliberate
indifference to serious medical needs against Gedney, Moyle,
Baca, Murphy, Buencamino and Aranas. See United States v.
Georgia, 546 U.S. 151, 157 (2006) (prisoner may state an
ADA claim based on ...