United States District Court, D. Nevada
SCREENING ORDER ON THIRD AMENDED COMPLAINT (ECF NO.
who is a pretrial detainee in the custody of the Clark County
Detention Center (“CCDC”), has submitted a third
amended civil rights complaint pursuant to 42 U.S.C. §
1983. (ECF No. 38). Plaintiff has paid the filing fee in
full. (ECF No. 27). The Court now screens Plaintiff's
third amended civil rights complaint pursuant to 28 U.S.C.
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).
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).
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
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.
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).
SCREENING OF THIRD AMENDED COMPLAINT
third amended complaint (“TAC”), Plaintiff sues
multiple defendants for events that took place while
Plaintiff was a pretrial detainee incarcerated at the
Henderson Detention Center (“HDC”) and Clark
County Detention Center (“CCDC”). (ECF No. 38 at
5, 8). Plaintiff sues Defendants County of Clark County
Nevada (“COCN”), Naphcare, City of Henderson
(“COHN”), Henderson Police Department
(“HPD”), Henderson Detention Center Medical
Administration (“HDCMA”), City of Las Vegas
(“CLV”), Las Vegas Metropolitan Police Department
(“LVMPD”), Joseph Lombardo, Patrick Moers, H.
Coker, Delacruz, D. Hardin, M. Smith, M. Hogan, V. Goins, L.
Williamson, F. Cadet, C. Smith, John Gregg, Pollard, Acevedo,
J. Chavez, R. Robinson, Ryan Adams, Anthony Niswonger, Arthur
(last name unknown), Ashley (last name unknown), and M.
Alvarado. (Id. at 3-4). Plaintiff alleges
seven counts and seeks monetary damages and declaratory
judgment. (Id. at 33, 36).
alleges the following: Before September 3, 2015, Plaintiff
suffered from dual addictions, epilepsy, valley fever,
hearing impairments, partial paralysis/immobility of the left
wrist, and mental health issues. (Id. at 4). On
September 3, 2015, Plaintiff was in a motor vehicle accident
that caused Plaintiff to suffer from chronic head, spine, and
neck injury, post-traumatic stress disorder, chronic
debilitating pain, and mental illness. (Id.) Without
his prescription glasses, Plaintiff suffered from blurred
vision and severe headaches when he tried to read or write.
(Id.) Between September 3, 2015 and January 22,
2016, Plaintiff received ongoing treatment and pain
management from several doctors and received prescription
glasses. (Id. at 5). Plaintiff also had used a
medically-necessary left hand brace for over ten years.
January 22, 2016, Plaintiff was “subject to arrest
by” COCN, COHN, HPD, CLV, LVMPD, Moers, and Lombardo.
(Id.). Officer Gregg transported Plaintiff to the
HDC. (Id.) After his arrest, Adams, Gregg, and
Niswonger switched Plaintiff's handcuffs from LVMPD to
HPD. (Id.) Adams and Niswonger directed Gregg to
seize Plaintiff's hand brace. (Id.)
Plaintiff underwent a medical screening by HDCMA.
(Id.) During the screening, Plaintiff reported that
he had a seizure disorder, drug and nicotine withdrawal,
valley fever, PTSD, paranoid schizophrenia, a hearing
impairment, left hand/wrist immobility, severe head, neck,
and back injury, chronic debilitating pain, and mental health
concerns. (Id.) Plaintiff also stated that he needed
his left wrist brace and his prescription eyeglasses.
(Id.) Plaintiff identified his current prescriptions
and provided a list of his prescribing pharmacies.
(Id. at 6).
HDCMA, and Moers had a no narcotic policy and, thus, HDCMA
Does refused to honor Plaintiff's pre-arrest
prescriptions. (Id.) This caused Plaintiff to suffer
from “disabling/excruciating pains, ” drug
withdrawal, and sleep deprivation for 12 days.
(Id.). Jail officials deprived Plaintiff of his
wrist brace and seizure medication. (Id. at 7). As a
result, Plaintiff had two seizures between January 27 and
January 30, 2016. (Id.) During the second seizure,
Plaintiff suffered a partial stroke. (Id.) M. Smith
and Acevedo deprived Plaintiff of his seizure medication even
though Plaintiff had informed them of his need for it.
legitimate cause, Chavez and Robinson, under the orders of
Adams and Niswonger, put Plaintiff in punitive segregation
after booking. (Id.) Plaintiff stayed there for 12
days. (Id.) On January 27, 2016, Niswonger and Adams
sought to interview Plaintiff. (Id.) Prior to being
interviewed, Plaintiff asked for his prescription glasses
because the strain in his eyes caused him to have headaches.
(Id.) Plaintiff also asked for his wrist brace.
(Id.) Niswonger and Adams refused the requests.
complained to M. Smith and Acevedo about his medical needs.
(Id.) HDCMA Does only gave Plaintiff ibuprofen and
failed to address Plaintiff's need for his brace and
prescription eyeglasses. (Id.)
February 3, 2016, HPD officials transported Plaintiff into
the custody of COCN, Naphcare staff, CLV, LVMPD, Lombardo,
Coker, Delacruz, Hogan, Goins, Williamson, Cadet, and C.
Smith. (Id.) At CCDC, Plaintiff reported all of his
medical needs to Naphcare Does and requested a lower bunk
accommodation. (Id. at 8). Based on a no narcotic
policy, Williamson and Naphcare Does prescribed Plaintiff
ibuprofen even though they knew it was ineffective.
approval of COCN, CLV, Naphcare Does, LVMPD, and
Lombardo's policy, jail officials assigned Plaintiff a
hard cell furnished with concrete slabs and hard wood benches
despite Plaintiff's substantial head, spine, and neck
injuries. (Id.) Jail officials did not provide
Plaintiff with any bedding, including a mattress, and kept
Plaintiff in the hard cell for three days. (Id. at
8-9). These conditions aggravated Plaintiff's head,
spine, and neck injuries. (Id. at 8).
jail officials denied Plaintiff's request for grievances
and writing instruments and told Plaintiff to wait until he
moved upstairs. (Id. at 9). On February 6, 2016,
jail officials rehoused Plaintiff but did not give him his
left hand brace, eye glasses, or any pain management.
officials assigned Plaintiff an upper bunk. (Id.) On
February 10, 2016, Plaintiff had a seizure. (Id.)
Williamson refused to provide Plaintiff with adequate pain
management. (Id.) Coker, Hogan, Delacruz, Goins,
Cadet and C. Smith refused to move Plaintiff to a lower bunk.
to April 20, 2016, C. Smith assigned Plaintiff to an upper
bunk even though Plaintiff was a seizure patient.
(Id. at 10). Plaintiff made several requests to be
moved to a lower bunk but Lombardo, Coker, Delacruz, Hogan,
Goins, Williamson, Cadet, and C. Smith refused to move
Plaintiff and told Plaintiff that inmates could not choose
housing because housing was based on the needs of the
April 20, 2016, Plaintiff attempted to climb onto his upper
bunk using his mobility-impaired-left-hand and his right
hand. (Id.) While attempting to climb, Plaintiff
retracted his left hand due to the pain and fell, struck his
head, lost consciousness, and sustained injuries to his head,
back, neck, wrist, and left shoulder. (Id.)
Plaintiff's cell mate attempted to summon Hogan three
times over the emergency light but Hogan had turned off the
light in order to train cadets. (Id.)
April 21, 2016, Plaintiff suffered from a “terrifying
asthma attack” and had activated his emergency call
light. (Id.) Goins responded and found Plaintiff in
distress. (Id.) Goins called the on-duty nurse at
1:05 a.m. (Id.) That nurse stated that she did not
have an order for an inhaler for Plaintiff and would ask
Williamson the next day. (Id.) Plaintiff panicked
and fell unconscious from the inability to breath.
April 22, 2016, Williamson met with Plaintiff. (Id.)
At the meeting, Plaintiff tried to discuss all of his
injuries and medical issues but Williamson told Plaintiff
that he was only there to discuss the asthma issue.
(Id.) Williamson told Plaintiff to submit a medical
request. (Id.) Although Plaintiff submitted the
request, Williamson did not treat Plaintiff's injuries.
April 20, 2016 and May 10, 2016, COCN, Naphcare, LVMPD,
Coker, Hogan, Goins, Williamson, and C. Smith knew about the
dangers associated with housing a seizure patient on a top
bunk. (Id. at 11). Williamson told Plaintiff that
“this is jail and that's the luck of the
draw.” (Id.) On May 10, 2016, Plaintiff had a
seizure on the top bunk. (Id.) On May 12, 2016,
Plaintiff informed Naphcare Does that he was in
“paralyzing pain and agony, ” that his valley
fever had progressed due to a lack of medicine, that he had
had a seizure two days before, and had suffered injuries.
(Id.) Naphcare Does responded that Plaintiff had
seen a physician on February 9, 2016, February 15, 2016,
April 7, 2016, and April 22, 2016, that he had no history of
the disease, and that he should fill out a form identifying
the clinic or doctor who had diagnosed the condition.
(Id.) On May 13, 2016, Plaintiff submitted another
medical request and stated that he needed to see a doctor and
get an MRI for new injuries to his back, head, and neck.
(Id. at 11-12). Naphcare Does responded that
“medications [had been] ordered for above medical
issue, ” “continue current treatment, ” and
“activity as tolerated.” (Id. at 12).
23, 2016, Plaintiff told Williamson that he had disabilities
of “seizure disorder, left wrist condition, and neck
and back.” (Id.) Williamson rejected these
conditions as disabilities. (Id.) Plaintiff asked
Williamson to reinstate his pre-jail pain management plan and
medication as prescribed by Plaintiff's specialists.
told Plaintiff, “medically this is my jail what I say
goes. The hell with your specialists' orders, they
don't work here.” (Id.) In response to
Plaintiff's seizure disorder and top bunk assignment,
Williamson told Plaintiff that it was between Plaintiff ...