United States District Court, D. Nevada
JOSHUA H. CRITTENDON, Plaintiff,
JOE LOMBARDO, Defendants.
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE
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.
IN FORMA PAUPERIS APPLICATION
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.
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 COMPLAINT
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, and John Doe.
(Id. at 2-4). Plaintiff alleges three
counts and seeks declaratory judgment, injunctive
relief, and monetary damages. (Id. at 15, 23-26).
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).
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.
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
Failure to Protect
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).
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.
State Law Claim
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