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Fernandez v. Baca

United States District Court, D. Nevada

February 14, 2018

KEVIN FERNANDEZ, Plaintiff,
v.
ISIDRO BACA et al., Defendants.

          ORDER

          ROBERT C. JONES UNITED STATES DISTRICT JUDGE

         I. PROCEDURAL HISTORY

         This is 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).[1], [2] Because the Court previously found at least three strikes, it did not screen the case on the merits. It does so now.

         II. LEGAL STANDARDS

         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 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).

         Federal 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).

         “Generally, 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).

         Finally, 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 Cir. 1991).

         III. ANALYSIS

         A. Factual Allegations

         Plaintiff 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. (Id. 16-19).

         B. Federal Claims

         1. Cruel & Unusual Punishment and Due Process

         Plaintiff 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 ...


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