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Crittendon v. Lombardo

United States District Court, D. Nevada

December 28, 2017

JOSHUA H. CRITTENDON, Plaintiff,
v.
JOE LOMBARDO, Defendants.

          SCREENING ORDER

          RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE

         Order Plaintiff, who is an inmate in the custody of the Clark County Detention Center (“CCDC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis and two motions for appointment of counsel. (ECF No. 1, 1-1, 8, 19). The Court now addresses the application to proceed in forma pauperis, screens Plaintiff's civil rights complaint pursuant to 28 U.S.C. § 1915A, and addresses the remaining motions.

         I. IN FORMA PAUPERIS APPLICATION

         Before the Court is Plaintiff's application to proceed in forma pauperis. (ECF No. 1). Based on the information regarding Plaintiff's financial status, the Court finds that Plaintiff is not able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 1915. Plaintiff will, however, be required to make monthly payments toward the full $350.00 filing fee when he has funds available.

         II. 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).

         III. SCREENING OF COMPLAINT

         In the complaint, Plaintiff, a pretrial detainee, sues multiple defendants for events that took place while Plaintiff was incarcerated at the Clark County Detention Center (“CCDC”). (ECF No. 1-1 at 1, 4). Plaintiff sues Defendants Sheriff Joe Lombardo, SERT Team Sergeant Rogers, Officer Torrez, Naphcare Supervisor Williamson, Officer Sanches, Officer Brown, Naphcare Staff[1], and John Doe. (Id. at 2-4). Plaintiff alleges three counts[2] and seeks declaratory judgment, injunctive relief, and monetary damages. (Id. at 15, 23-26).

         A. Count I

         On November 15, 2015, Sanches told Plaintiff to “cuff up” because Plaintiff had a visitor. (ECF No. 1-1 at 6). After Plaintiff cuffed up and the door opened, Sanches grabbed Plaintiff's shirt and directed Plaintiff to the stairs. (Id.) As they neared the stairs, Plaintiff stopped to avoid getting pushed down the stairs. (Id.) Sanches interrupted the stop as resistance and slammed Plaintiff to the ground. (Id.) Sanches put his knee on the side of Plaintiff's face and wrenched and twisted Plaintiff's wrists. (Id.) Officer John Doe asked Sanches what he was doing and said “to be easy.” (Id.) Sanches got on the radio and called Sgt. Reynolds who punished Plaintiff for whatever Sanches had told him. (Id.) Plaintiff missed his attorney visit and suffered from bruises and severe wrist abrasions. (Id.) The officers harassed Plaintiff because he threatened to sue them for opening his legal mail during a cell search. (Id.) Plaintiff alleges excessive force and a state law claim for assault and battery against Sanches and John Doe. (Id. at 6-7, 19).

         i. Excessive Force

         In Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), the Supreme Court held that a pretrial detainee states a claim for excessive force under the Fourteenth Amendment if: (1) the defendant's use of force was used purposely or knowingly, and (2) the force purposely or knowingly used against the pretrial detainee was objectively unreasonable. Id. at 2472-73.

         The Court finds that Plaintiff states a colorable claim for excessive force. Based on the allegations, Plaintiff stopped by the stairs to avoid being pushed down the stairs. As a result, Sanches slammed Plaintiff to the ground, kneed Plaintiff's face, and twisted Plaintiff's wrists. For screening purposes, the force seems objectively unreasonable given that Plaintiff was trying to avoid falling down the stairs. The excessive force claim will proceed against Defendant Sanches.

         ii. Failure to Protect

         With respect to Officer John Doe, there are no allegations that he participated in the force. However, it does appear that John Doe witnessed the force and did not do anything to protect Plaintiff. A pretrial detainee states a claim for failure-to-protect against an individual officer under the Fourteenth Amendment if: (1) the defendant made an intentional decision with respect to the conditions under which the pretrial detainee was confined; (2) those conditions put the pretrial detainee at substantial risk of suffering serious harm; (3) the defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (4) by not taking such measures, the defendant caused the pretrial detainee's injuries. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016).

         The Court finds that Plaintiff states a colorable claim against Defendant John Doe for failure to protect. Based on the allegations, John Doe recognized that Sanches was putting Plaintiff at risk of serious harm, questioned what Sanches was doing, and told Sanches to take it easy. However, John Doe did not stop Sanches from using the force against Plaintiff. This claim will proceed against John Doe when Plaintiff learns his identity.[3]

         iii. State Law Claim

         The Court will permit the state law claim of assault and battery to proceed against Defendant Sanches based on supplemental jurisdiction. See 28 U.S.C. § 1367(a) (stating that “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy”).

         B. ...


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