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Festa v. Nevada Department of Corrections

United States District Court, D. Nevada

February 20, 2018



         On March 21, 2017, Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections (“NDOC”), submitted a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1-1). On May 12, 2017, Plaintiff filed a motion to file an amended civil rights complaint and submitted an amended civil rights complaint. (ECF No. 12, 12-1). Plaintiff also has filed a motion for appointment of counsel (ECF No. 2) and a motion to extend the prison copy work limit (ECF No. 14).

         An amended complaint supersedes an earlier complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). Therefore, the operative complaint is the amended complaint submitted on May 12, 2017. (ECF No. 12-1). (ECF No. 13). The Court now screens Plaintiff's amended civil rights complaint pursuant to 28 U.S.C. § 1915A and addresses Plaintiff's motion for appointment of counsel and motion for an extension of his copy work limit.[1]


         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).


         In the amended complaint, Plaintiff sues multiple defendants for events that took place at High Desert State Prison (HDSP). (ECF No. 12-1 at 1). Plaintiff sues Defendants Nevada Department of Corrections, Officer Gordon, Brian Williams, Jennifer Nash, James Dzurenda, Lieutenant Provencal, and Brian Sandoval.[2] (Id. at 2-3). He alleges two counts and seeks monetary damages, injunctive relief, and declaratory relief. (Id. at 4-5, 9).

         In his amended complaint, Plaintiff alleges the following: Plaintiff had Defendant Gordon come in his cell. (Id. at 3). Defendant Gordon hit Plaintiff's cell and said “This guy's a faggot.” (Id.) Everyone said he was not. (Id.) Defendant Gordon said “Look, here's a naked picture of a guy and here's his gay flag.” (Id.) Plaintiff filed a PREA complaint. (Id.) The next day Defendant Gordon kept making comments about homosexuality. (Id.) Plaintiff therefore was moved for his safety. (Id.) Plaintiff yelled retaliation when Lieutenant Provencal wrote Plaintiff up and gave the write-up to Defendant Gordon to retaliate some more. (Id.) Defendant Gordon kept coming by his cell even after Plaintiff told him that the PREA complaint was filed. (Id.) This happened three more times even after Plaintiff informed the warden and the governor, and they still did not fix the problem. (Id.) In addition, Defendant Gordon harassed Plaintiff at his disciplinary hearing. (Id. at 5).

         Plaintiff alleges that this conduct violated his Fourteenth Amendment right to equal protection and his First Amendment against retaliation. (Id. at 4-5).

         A. Equal Protection

         Plaintiff alleges that Defendant Gordon violated his Fourteenth Amendment rights by not treating him equally to similarly situated inmates. (ECF No. 12-1 at 4).

         The Equal Protection Clause of the Fourteenth Amendment is essentially a directive that all similarly situated persons be treated equally under the law. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In order to state an equal protection claim, a plaintiff must allege facts demonstrating that defendants acted with the intent and purpose to discriminate against him based upon membership in a protected class, or that defendants purposefully treated him differently than similarly situated individuals without any rational basis for the ...

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