United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
a prisoner civil rights complaint under 42 U.S.C. §
1983. Plaintiff has sued multiple Defendants for various
constitutional violations arising out of their having
allegedly poisoned him with psychotropic drugs via his food.
The Court previously denied Plaintiff's application to
proceed in forma pauperis because he had more than three
“strikes” under the Prison Litigation Reform Act.
See 28 U.S.C. § 1915(g).,  Because the Court
previously found at least three strikes, it did not screen
the case on the merits. It does so now.
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 Id.
§ 1915A(b)(1)- (2). Dismissal of a complaint for failure
to state a claim upon which relief can be granted is provided
for in Federal Rule 12(b)(6), and the court applies the same
standard under § 1915A. Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012). When a court dismisses a
complaint upon screening, 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).
Rule of Civil Procedure 12(b)(6) mandates that a court
dismiss a cause of action that fails to state a claim upon
which relief can be granted. A motion to dismiss under Rule
12(b)(6) tests the complaint's sufficiency. See N.
Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578,
581 (9th Cir. 1983). When considering a motion to dismiss
under Rule 12(b)(6) for failure to state a claim, dismissal
is appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
1986). The court, however, is not required to accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences. See
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001). A formulaic recitation of a cause of action
with conclusory allegations is not sufficient; a plaintiff
must plead facts showing that a violation is plausible, not
just possible. Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009) (citations omitted).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered.” Hal Roach Studios, Inc. v.
Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th
Cir. 1990) (citation omitted). Similarly, “documents
whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically
attached to the pleading, may be considered in ruling on a
Rule 12(b)(6) motion to dismiss” without converting the
motion to dismiss into a motion for summary judgment.
Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994).
Moreover, under Federal Rule of Evidence 201, a court may
take judicial notice of “matters of public
record.” Mack v. S. Bay Beer Distribs., Inc.,
798 F.2d 1279, 1282 (9th Cir. 1986).
all or part of a complaint filed by a prisoner may be
dismissed sua sponte if the prisoner's claims
lack an arguable basis 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
alleges that between July 23, 2014 and April 21, 2015, eight
Defendants at Northern Nevada Correctional Center
(“NNCC”) served him food “that was mixed
with psychotropic drugs/toxins for the sole purpose to cause
Plaintiff injury . . . .” (Compl. 13, ECF No. 1-1). He
claims that he suffered symptoms such as dizziness, kidney
pain, swollen glands, chest pain, hissing sounds in his ear,
dry and bloodshot eyes, increased libido, loss of cognitive
function, hot flashes, muscle aches, headaches, backaches,
loss of hearing, rapid weight loss, and on one occasion
fainting (resulting in injury), after eating the meals served
by Defendants. (Id. 14-15). Plaintiff suspects
Defendants were drugging him with “a powerful pulmonary
drug Adcirca.” (Id. 15). He only experienced
the symptoms when certain officers served him (Defendants
Mooney, Sawin, Puertos, Spears, Bauman, Fehr, Hogan, Gilbert,
Holeman, Collins), not when other officers served him.
(Id. 14-16, 19-20). He also alleges that Defendants
Ashworth, Baxley, Collins, Columbus, Drew Dillar, Huff,
Spenilli, R. Vasquez, Walker, and Zuefelt served him food
mixed with psychotropic drugs and/or toxins while he was
assigned to administrative segregation at NNCC, as he
experienced similar symptom when they served him.
Cruel & Unusual Punishment and Due Process
brings claims of violations of substantive due process (Count
I), violations of procedural due process (Count II), and
cruel and unusual punishment (Count III) based on the alleged
surreptitious poisonings. The allegations of poisoning make
out a claim of cruel and unusual punishment under the Eighth
Amendment, because surreptitiously poisoning an inmate (as
contradistinguished from involuntarily administering a
medication under a doctor's orders) is reasonably
characterized as force applied maliciously or sadistically to
cause harm with no good-faith purpose of restoring or
maintaining order and discipline. See Hudson v.
McMillian, 503 U.S. 1, 6-7 (1992). Count III may
therefore proceed, but Counts I and II are dismissed, without
leave to ...