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Kurtze v. Clark County Detention Center

United States District Court, D. Nevada

November 16, 2017



         This is a pro se civil rights case filed by a county inmate pursuant to 42 U.S.C. § 1983. (ECF No. 8). On December 23, 2013, the Court screened Plaintiff's original complaint and granted Plaintiff's application to proceed in forma pauperis. (ECF No. 5). On January 9, 2017, Plaintiff filed an amended complaint. (ECF No. 7). On June 8, 2017, Plaintiff amended his complaint again. (ECF No. 8). An amended complaint supersedes an earlier complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). Therefore, the operative complaint is the amended complaint filed on June 8, 2017. (ECF No. 8.) The Court now screens that operative complaint pursuant to 28 U.S.C. § 1915A.


         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).


         In the amended complaint, Plaintiff sues Williamson and Joe Lombardo for events that took place while Plaintiff was incarcerated at the Clark County Detention Center (CCDC). (ECF No. 8 at 1-2). Plaintiff alleges three counts and seeks monetary damages. (Id. at 4-6, 9.)

         In Count I, Plaintiff alleges that NaphCare, the CCDC's medical provider, did not use the correct body mass index charts. (ECF No. 8 at 4.) He also alleges that, while incarcerated at CCDC, he lost weight. (Id.) Plaintiff alleges that this violated his Eighth Amendment and Fourteenth Amendment rights. (Id.)

         In Count II, Plaintiff alleges that he needs a particular medication known as Tegretol for his brain disease, which is called Dandy Walker, and for his post-traumatic stress disorder. (Id. at 5.) A NaphCare doctor refused to give Plaintiff the medication, saying that Plaintiff does not take medications. (Id.) When Plaintiff sent a medical request form to NaphCare stating what happened and asking for another doctor, the response was a zero being crossed out. (Id.) Plaintiff alleges that this violated his Eighth Amendment rights and his Fourteenth Amendment rights. (Id.)

         In Count III, Plaintiff appears to allege that the calories were not balanced correctly on food trays and that he lost weight. (Id. at 6.)

         In its prior screening order, the Court advised Plaintiff that upon amendment, Plaintiff must provide more details, including following the directions in the form complaint and describing exactly what each specific defendant (by name) did to violate his rights. (ECF No. 5 at 5.) Plaintiff does not allege anywhere in the amended complaint (ECF No. 8) that either Defendant Williamson or Defendant Lombardo did anything. A defendant is liable under 42 U.S.C. § 1983 “only upon a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under [§]1983.” Id.

         The Court will dismiss the amended complaint (ECF No.8) without prejudice and will give Plaintiff leave to amend one final time. If Plaintiff chooses to file an amended complaint, Plaintiff must follow the directions in the form complaint and describe exactly what each specific defendant (by name) did to violate his rights. If Plaintiff is unable to provide factual allegations to state a colorable claim in his Third Amended Complaint, the Court will ...

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