United States District Court, D. Nevada
ORDER ON SECOND AMENDED COMPLAINT
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
who is a prisoner in the custody of the Clark County
Detention Center (“CCDC”), has submitted a second
amended civil rights complaint pursuant to 42 U.S.C. §
1983, and a motion for reconsideration. (ECF Nos. 11, 14.)
The Court now screens Plaintiff's second amended civil
rights complaint pursuant to 28 U.S.C. § 1915A and
addresses Plaintiff's motion.
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).
October 11, 2017, this Court screened Plaintiff's first
amended complaint. (See ECF No. 6.) Plaintiff sued
multiple defendants for events that took place while
Plaintiff was incarcerated at the CCDC. (ECF No. 7.)
Plaintiff asserted three counts against Defendants Clark
County, Sletten Construction, Sheriff Lombardo, Las Vegas
Metropolitan Police Department Detention Service Division,
Clark County Detention Center, and John Doe owner of CCDC.
(Id. at 1-2.) The Court granted Plaintiff leave to
amend his complaint as follows: (1) in Count I, Plaintiff was
given leave to amend an Eighth Amendment deliberate
indifference claim; (2) in Count II, Plaintiff was given
leave to amend a Fourteenth Amendment access to courts claim
and a Fourth Amendment claim related to excessive strip
searches; and (3) in Count III, Plaintiff was given leave to
amend an Eighth Amendment conditions of confinement claim as
to Defendants Doe, Lombardo, Clark County, and Sletten
Construction. (ECF No. 6.) The Court dismissed, with
prejudice, Defendants Las Vegas Metropolitan Police
Department Detention Service Division
(“LVMPDDSD”) and Clark County Detention Center.
(Id. at 13.)
SCREENING OF SECOND AMENDED COMPLAINT
Court has thoroughly reviewed Plaintiff's second amended
complaint and finds that Counts I and II are identical to his
Count I and II claims in his first amended complaint.
(Compare ECF No. 7 at 3-7 with ECF No. 14
at 3-7.) As to Count III, Plaintiff does provide additional
detail, but he fails to properly amend the claim as directed
in the original screening order. (Compare ECF No. 7
at 8-9 with ECF No. 14 at 8-10.)
in the first amended complaint, Plaintiff had a Count IV
claim titled “Municipality” (See ECF No.
7 at 11.) The Court did not analyze this Count as it
contained no factual allegations, but instead recited case
law related to suing a municipality. (See id.) In
his second amended complaint, Plaintiff includes the same
Count IV Municipality page, but also adds an additional page
of factual allegations. (See ECF No. 14 at 12-13.)
Plaintiff adds additional details to his excessive strip
search claim, access to courts claim, and conditions of
confinement claim. (Id. at 13.) However, this
additional detail fails to properly amend the claims as
directed in the original screening order and instead
re-alleges what is contained in Counts II and III.
Plaintiff was given an opportunity to amend these Counts, but
failed to do so, Counts I, II, III, and IV are dismissed,
with prejudice, as amendment would be futile. The ...