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Ross v. Sandoval

United States District Court, D. Nevada

December 4, 2017

JESSE ARON ROSS, Plaintiff,
v.
BRIAN SANDOVAL, et al. Defendants.

          SCREENING ORDER AND BRIEFING SCHEDULE FOR PRELIMINARY INJUNCTION (ECF Nos. 2, 7, 8)

         Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections (“NDOC”), has submitted a first amended civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis, a motion to file additional pages to form complaint, a motion to waive NRS § 41A.071 requirements, and a motion for preliminary injunction. (ECF No. 2, 6, 6-1, 7, 8). The matter of the filing fee shall be temporarily deferred.[1] The Court now screens Plaintiff's first amended civil rights complaint pursuant to 28 U.S.C. § 1915A and addresses the remaining motions.

         I. 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).

         II. SCREENING OF FIRST AMENDED COMPLAINT[2]

         In the first amended complaint, Plaintiff sues multiple defendants for events that took place while Plaintiff was incarcerated at High Desert State Prison (“HDSP”). (ECF No. 6-1 at 1). Plaintiff sues Defendants Adam Laxalt, Brian Sandoval, Warden Brian Williams, Correctional Officer Vaughn, Dr. Leaks, Dr. Magapah, Warden Dwight Neven, NDOC Director James Cox, NDOC Director James Dzurenda, Nurse J. Torress, Chaplin Julio Caldrin, KT Industries (contracted vendor), Lieutenant Owens, Lieutenant Plumlee, Lieutenant Provencial, Deputy Director Q. Byrne, Medical Director Romeo Aranas, Sergeant Ontiveras, State of Nevada ex rel NDOC[3], and John/Jane Does. (Id. at 2-8). Plaintiff alleges 18 counts of federal and state law claims and seeks monetary, declaratory, and injunctive relief. Id. at 10, 42).

         A. Federal Constitutional Claims

         i. Count I

         In Count I, Plaintiff sues KT Industries, Dr. Leaks, Neven, Aranas, Williams, and Cox for deliberate indifference to serious medical needs. (ECF No. 6-1 at 13). Plaintiff alleges the following: On May 1, 2015, July 1, 2015, and June 16, 2016, Plaintiff filed medical and regular inmate request forms for medically necessary eyeglasses. (Id.) Plaintiff has extremely poor vision. (Id.) On March 4, 2017, Plaintiff saw Dr. Leaks of KT Industries. (Id.) This was 670 days after Plaintiff's initial request. (Id.) During this period of time, Plaintiff suffered from headaches, blurry vision, and had his nose broken by a soccer ball because he could not see the ball until it was too close to deflect. (Id.) Plaintiff would have been able to deflect the soccer ball had he had eyeglasses. (Id.) Dr. Leaks and KT Industries failed to see Plaintiff in a reasonable period of time. (Id.) Neven, Williams, Cox, Dzurenda, and Aranas failed to create customs, policies, and practices, and failed to train and supervise the optometry staff. (Id. at 13-14). KT Industries was the private corporation contracted to provide optometry services for the prison. (Id. at 14). Sandoval and Laxalt, as prison commissioners, failed in their duty to hire and retain staff. (Id.)

         The Eighth Amendment prohibits the imposition of cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard-deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).

         To establish the first prong, “the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (internal quotations omitted). When a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference”).

         The Court finds that Plaintiff fails to allege a colorable claim for deliberate indifference to serious medical needs at this time but grants Plaintiff leave to amend. Although Plaintiff filed three requests to see an optometrist about glasses, Plaintiff has not identified who he filed his requests with and has not identified who responded to his requests and what they told him. There are no allegations in the complaint that Dr. Leaks knew that Plaintiff had requested medical treatment prior to seeing Plaintiff in March 2017. Additionally, Plaintiff has not alleged that any other defendant in this count even knew about Plaintiff's need for eyeglasses. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that “[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”). As such, the Court dismisses this count, without prejudice, with leave to amend.

         Upon amendment, Plaintiff should not lump defendants together but should, instead, describe exactly what each specific defendant, by name, did to violate his rights. Plaintiff should also describe who he filed his medical requests with and what their responses were.

         ii. Count III

         In Count III, Plaintiff sues Laxalt, Sandoval, Aranas, Williams, Neven, Torress, and John Doe #1 for deliberate indifference to serious medical needs. (ECF No. 6-1 at 17). Plaintiff alleges the following: On April 8, 2016, a soccer ball broke Plaintiff's nose. (Id.) Plaintiff sustained two black eyes, two small lacerations on the right side of his face where the bone from the nasal cavity protruded, partial neurological paralysis, and a deviated septum. (Id.) Plaintiff notified an officer who asked Plaintiff if he wished to call a man down. (Id.) Plaintiff stated he would submit a kite on Monday because the case was urgent but not an emergency. (Id.)

         On April 9, 2016, Plaintiff submitted his kite to Torress. (Id.) Torress looked at Plaintiff's face and told Plaintiff to “drink some water, you'll be ok in the morning.” (Id.) On April 18, 2016 and May 12, 2016, Plaintiff filed more medical requests. (Id.) On April 11, 2016, Plaintiff was forced to fix his own nose in his cell. (Id. at 17-18).

         Plaintiff did not receive further treatment until November 29, 2016. (Id. at 18). Plaintiff told Doctor John Doe #1 that he still had partial facial neurological paralysis and “extremely bad headaches.” (Id.) John Doe #1 prescribed ibuprofen and ordered x-rays. (Id.) When Plaintiff asked for a neurological evaluation, John Doe #1 stated, “The state is not gonna pay for that. [You're] done.” (Id.) After Plaintiff received x-rays, he received no further treatment because the doctors refused to treat Plaintiff's neurological paralysis and pain. (Id.) Plaintiff still suffers from paralysis and extreme headaches more than a year later. (Id.) The medical delivery system at HDSP is deficient due to Laxalt, Sandoval, Aranas, Neven, Dzurenda, and Cox's failures. (Id.)

         The Court finds that Plaintiff fails to state a colorable claim for deliberate indifference to serious medical needs but grants Plaintiff leave to amend. See Count I, Part II.A.i. supra, for a discussion of the Eighth Amendment legal standard for deliberate indifference to serious medical needs. Based on the allegations, Plaintiff saw Torress and John Doe #1 each one time. This is not enough to establish that these defendants purposefully failed to respond to Plaintiff's pain or medical needs. Upon amendment, Plaintiff should include details about who he submitted his medical requests to, what he wrote in the requests, who responded to the requests, and how did they respond. If Plaintiff spoke to Torress or John Doe #1 on more than one occasion about his injuries, he should describe those occasions. Plaintiff also fails to allege a supervisory liability claim against the remaining defendants in this count. As such, the Court dismisses this count, without prejudice, with leave to amend.

         iii. Counts V and VIII

         In Count V, Plaintiff sues Laxalt, Sandoval, Russell, Byrne, Williams, and Dzurenda for an Eighth Amendment conditions of confinement claim. (ECF No. 6-1 at 21). Plaintiff alleges the following: From November 5, 2016 to the date Plaintiff submitted the amended complaint[4], Plaintiff was housed in a protective segregation unit. (Id.) During this time, Plaintiff experienced excessive lock down periods and only received four hours of outdoor exercise per week. (Id.) Between January 1, 2017 and August 14, 2017, there were 128 eligible yard days scheduled but prison officials cancelled or delayed 27 of those days. (Id.) Plaintiff averaged 4 hours of time outside per week during a 168-hour week. (Id.) At other NDOC prisons that were at the same level as Plaintiff, inmates received up to 10 hours per day of yard time or 70 hours per week. (Id.) Sandoval, Laxalt, Dzurenda, and Byrne failed to supervise Williams and Russell, who unlawfully restricted Plaintiff's outdoor access. (Id.) Plaintiff receives one-hour outdoors on Mondays, Tuesdays, Wednesdays, and Thursdays and no yard time on Fridays, Saturdays, or Sundays. (Id. at 22).

         Although Plaintiff is scheduled for 4 hours a week, prison officials often delayed yard or cancelled yard. (Id.) On February 7, 2017, Plaintiff received 39 of the 60 minutes and, on January 12, 2017, Plaintiff received 17 of the 60 minutes. (Id.) On May 2 and 4, 2017, prison officials cancelled yard for a staff party. (Id.)

         Plaintiff has been clinically diagnosed with clinical depression and anxiety and is on the maximum psychotropic medication for each. (Id.) The lack of outdoor yard has substantially exacerbated Plaintiff's panic attacks, extreme chest pain, hypertension, muscle atrophy, depression, anxiety, anger, sadness, and suicidal ideation. (Id.)

         In response to Plaintiff's grievances, Williams responded, “unit 11 is scheduled for 8 hours of yard a week, this falls within federal guidelines” even though Plaintiff only received 4 hours of yard a week. (Id.) In response to Plaintiff's second level grievance, Byrne refused to remedy the constitutional violation. (Id.)

         In Count VIII, Plaintiff sues Laxalt, Owens, Russell, Dzurenda, and Williams for Fourteenth Amendment due process violations. (Id. at 26). From January 1, 2017 through August 8, 2017, prison officials scheduled four days per week of yard time for one hour each for protective segregation inmates. (Id.) During that period of time, there were 128 eligible yard days. (Id.) Prison officials “unreasonably delayed” or cancelled 25 of those days. (Id.) Owens, Russell, and Williams caused the delays or cancellations. (Id.) The other defendants failed to train and supervise Owens, Russell, and Williams. (Id.) These defendants deprived Plaintiff of his liberty. (Id.)

         The Court construes Counts V and VIII as Eighth Amendment conditions of confinement claims. Plaintiff cannot state a Fourteenth Amendment due process claim for the denial of outside yard time because he cannot establish that he has a liberty interest in receiving outdoor yard time.

         The “treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, “[p]rison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). When determining whether the conditions of confinement meet the objective prong of the Eighth Amendment analysis, the court must analyze each condition separately to determine whether that specific condition violates the Eighth Amendment. See Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981). As to the subjective prong of the Eighth Amendment analysis, prisoners must establish prison officials' “deliberate indifference” to the unconstitutional conditions of confinement to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). When considering the conditions of confinement, the court should consider the amount of time to which the prisoner was subjected to the condition. Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005).

         The Ninth Circuit has recognized that “[d]eprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996). However, “a temporary denial of outdoor exercise with no medical effects is not a substantial deprivation.” May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997).

         The Court finds that Plaintiff states colorable conditions of confinement claims in Counts V and VIII. Based on the allegations, Plaintiff has, at most, received 4 hours of yard time per week for a year even though the warden states that Plaintiff is scheduled for 8 hours per week. However, based on the allegations, Plaintiff receives less than 4 hours a week due to lockdowns, cancellations, and delays. As a result, Plaintiff has experienced an increase in both physical and mental health issues. This is sufficient to state a colorable claim on screening. Counts V and VIII will proceed against Defendants Owens, Williams, Russell, and Byrne. However, the Court dismisses Defendants Laxalt, Sandoval, and Dzurenda, without prejudice, from these counts because there are no allegations that they knew of or participated in Plaintiff's yard time schedule. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that “[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”).

         iv. Count IX

         In Count IX, Plaintiff sues Laxalt, Sandoval, Dzurenda, and Cox for Eighth Amendment conditions of confinement violations related to adequate sanitation. (ECF No. 6-1 at 27). From July 31, 2015 to August 8, 2017, prison officials housed Plaintiff in protective segregation. (Id.) During that period of time, prison officials failed to provide bathroom access during yard time. (Id.) HDSP was located in an arid region and Plaintiff needed to hydrate. (Id.) On several occasions, Plaintiff soiled himself. (Id.) On other occasions, Plaintiff had to urinate openly on the yard in front of other inmates. (Id.) Other offenders were forced to urinate and defecate on the yard causing unsanitary conditions. (Id.) All of the above-named defendants failed to create policies, customs, and practices to ensure that Plaintiff had access to sanitary conditions. (Id.)

         The Court dismisses this count with leave to amend. There are no allegations that Laxalt, Sandoval, Dzurenda, or Cox knew that Plaintiff was unable to use the bathroom during yard time and, as a result, often had to soil himself or urinate on the yard. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that “[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”). Upon amendment, Plaintiff should describe which correctional officers prevented Plaintiff from using the bathroom during yard, who he informed of the bathroom-yard problems, and their responses.

         v. Count XI

         In Count XI, Plaintiff sues Laxalt, Sandoval, Russell, Dzurenda, and Williams for 42 U.S.C. § 1985(2), (3) conspiracy for tortious interference with access to the courts. (ECF No. 6-1 at 29). Plaintiff alleges the following: Dzurenda, Williams, and Russell jointly conspired to create a grievance process that was so difficult to navigate as to make it unavailable. (Id.) Defendants restricted inmates to only filing one grievance per week and rejected meritorious grievances in a frivolous manner barring lawsuits under the PLRA and NRS § 41.032. (Id.) Laxalt and Sandoval failed to supervise and train. (Id.)

         The Court dismisses this count, with prejudice, as amendment would be futile. Plaintiff's underlying argument is that he cannot exhaust the grievance process because the grievance process is too complicated, thus, preventing him from filing lawsuits under the PRLA and state statute equivalents. The Court finds that this argument is meritless. In Ross v. Blake, 136 S.Ct. 1850 (2016), the Supreme Court held that, “[a]n inmate . . . must exhaust available remedies, but need not exhaust unavailable ones.” Id. at 1858. The Supreme Court held that a court may find that the grievance process is unavailable if prison officials thwart inmates through “machination, misrepresentation, or intimidation.” Id. at 1860. Accordingly, the Supreme Court provides a way ...


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