United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
before the Court is the Motion to Dismiss, (ECF No. 35),
filed by Defendants Jo Gentry (“Gentry”),
Willontray Holmes (“Holmes”),  David Molnar
(“Molnar”), Todd Riches (“Riches”),
Gary Piccininni (“Piccininni”), and Nevada
Department of Corrections (“NDOC”) (collectively
“Defendants”). Plaintiff Priscella Saintal
(“Plaintiff”) filed a Response, (ECF No. 39), and
Defendants filed a Reply, (ECF No. 40). For the following
reasons, the Motion to Dismiss is GRANTED in
part and DENIED in part.
a case arising from alleged events that occurred while
Plaintiff was an inmate at Florence McClure Women's
Correctional Center (“FMWCC”). (See Am.
Compl., ECF No. 21 at 1). Plaintiff filed her pro se
complaint on December 23, 2015, against Warehouse Supervisor
Maria Pesce, NDOC Inspector General Pam Del Porto, Caseworker
William Ruebert, inmate Susanne Carno (“Carno”),
NDOC Inspector General Molnar, FMWCC Lieutenant Holmes, FMWCC
Lieutenant Piccininni,  and NDOC Warden Gentry. (See
Compl., ECF No. 1-3). On April 26, 2016, the Court issued a
Screening Order dismissing Plaintiff's Religious Land Use
and Institutionalized Persons Act claim and Equal Protection
claim with prejudice. (See Screening Order
8:15-9:25, ECF No. 3). Additionally, the Court dismissed
claims against William Ruebert, Piccininni, Pam Del Porto,
Maria Pesce, and Susanne Carno with prejudice. (See
id. 5:3-6:4, 7:4-13, 7:20-8:3, 8:4-9, ECF No. 3). The
Court's Screening Order found that Plaintiff stated a
colorable retaliation claim against Molnar, Holmes, and
Gentry in her initial Complaint, (ECF No. 1-3). (See
id. 6:28-7:3, 7:15-19).
November 8, 2016, Plaintiff moved for leave to amend her
Complaint, which the Court initially denied on December 27,
2016. (See Mot. for Leave to Amend, ECF No. 20);
(see also Order Den. Mot. for Leave to Amend, ECF
No. 26). On April 17, 2017, the Court reconsidered its prior
order denying Plaintiff's motion to amend the Complaint
and reactivated the Amended Complaint, (ECF No. 21).
(See Order Recons. Prior Order Den. Mot. for Leave
to Amend, ECF No. 32).
Amended Complaint, Plaintiff alleges that on February 11,
2015, she was assaulted by inmate Carno. (See Am.
Compl. at 5, ECF No. 21). Plaintiff alleges that Gentry was
advised of the alleged sexual assault and ignored the
incident. (See Compl. at 13, ECF No. 1-3). On
February 26, 2015, Holmes, who conducted the PREA report,
informed Molnar of the alleged sexual assault. (See
id.); (see also Screening Order 4:1-2, ECF No.
3). Plaintiff claims that Molnar told Holmes to “do
nothing” to address the alleged assault.
(Id.). Plaintiff alleges that Molnar refused to
investigate the reported assault in retaliation after
Plaintiff named Molnar as a defendant in two prior
litigations. (See Compl. at 9, ECF No. 1-3).
Holmes was told not to investigate the sexual assault any
further, he sent Plaintiff back to the same “pod”
with Carno. (See Am. Compl. at 5, ECF No. 21).
Plaintiff alleges that because she previously filed a PREA
grievance against Holmes, he placed Plaintiff in the same
cell as Carno in retaliation. (See Compl. at 9, ECF
No. 1-3). Further, Plaintiff claims Gentry was involved in
the decision to keep Plaintiff in the same cell as Carno on
February 26, 2015. (See Am. Compl. at 7, ECF No.
21). Plaintiff alleges in her initial Complaint that Gentry
retaliated against her because of grievances Plaintiff filed
against Gentry in the past. (See Compl. at 13, ECF
October 1, 2015, Gentry, Piccininni, and Holmes allegedly
retaliated against Plaintiff by choosing to place a convicted
sex offender in Plaintiff's cell after Plaintiff
filed a PREA report against Piccininni. (See Am.
Compl. at 5, ECF No. 21). Additionally, on October 23, 2016,
Piccininni, Gentry, and Riches allegedly conspired to
retaliate against Plaintiff because Plaintiff named
Piccininni in a lawsuit. (See id. at 6). Plaintiff
further claims that Riches and Piccininni: (1) performed a
“shakedown” in unit one on July 5, 2016, during
which they confiscated Plaintiff's personal property and
appliances, claiming it was a “Drug Hit”; (2)
wrote a fabricated NOC about Plaintiff on August 10, 2016,
intending to interfere with her upcoming parole board hearing
on August 16, 2016; and (3) performed a disciplinary hearing
in Plaintiff's absence, again confiscated her property,
and placed Plaintiff on six months probation with canteen and
phone restriction in October 2016. (See id.).
Lastly, Plaintiff alleges that NDOC, which enforces PREA
reports, failed to train its employees and staff on
“protocol and zero tolerance.” (See
Amended Complaint alleges three counts seeking declaratory
relief, injunctive relief, and monetary relief. (See
Id. at 5-8). Based on Plaintiff's claims, the Court
construes the Amended Complaint as alleging four causes of
action: (1) retaliation against Holmes, Molnar,
Riches, and Gentry; (2) deliberate indifference against
Holmes, Molnar, Riches, and Gentry; (3) due process
violations against all named Defendants; and (4) failure to
train employees against NDOC. (See generally Am.
Compl., ECF No. 21). In the instant Motion, Defendants
request that the Court dismiss Plaintiff's Amended
Complaint in its entirety because Plaintiff “fails to
state claims upon which relief can be granted.” (Mot.
to Dismiss 8:2-5, ECF No. 35).
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as factual allegations are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Sys., Inc., 957
F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the
court should “freely” give leave to amend
“when justice so requires, ” and in the absence
of a reason such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
instant Motion, Defendants move to dismiss Plaintiff's
Amended Complaint because “Plaintiff fails to state
claims upon which relief can be granted, requiring Defendants
to speculate and draw unreasonable inferences as to the basis
of Plaintiff's alleged claims.” (Mot. to Dismiss
8:2-4, ECF No. 35). In light of Plaintiff's status as a
pro se litigant, the Court has liberally construed
Plaintiff's filing, holding her to standards less
stringent than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The mandate
to construe pro se pleadings liberally allows the
Court to consider claims raised in the initial complaint that
the pro se plaintiff intended to preserve in the
second complaint. See Tidwell v. Copeland, No.
89-15550, 1990 WL 118344, at *2 (9th Cir. Aug. 7, 1990)
(concluding that the district court should consider the
issues raised in a pro se litigant's initial
complaint because the plaintiff intended to supplement his
initial complaint when he filed an amended complaint labeled
“amended complaint in support of his complaint”).
Here, it appears that Plaintiff intends for her second
pleading to supplement, rather than supersede, her initial
complaint. Plaintiff entitled her second pleading
“Supplemental/Amended Complaint” and refers to
factual occurrences that she explained more fully in her
initial complaint. (See Am. Compl. at 1, ECF No.
21). Thus, the Court concludes that Plaintiff intended to
preserve the facts raised in her initial complaint.
Accordingly, the Court will consider facts from
Plaintiff's initial Complaint.
preliminary matter, to the extent that Defendants Holmes,
Molnar, Riches, and Gentry are sued in their official
capacities for damages, the Court dismisses these claims.
Official capacity suits “generally represent only
another way of pleading an action against an entity of which
an officer is an agent.” Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658, n.55
(1978). “Suits against state officials in their
official capacity therefore should be treated as suits
against the State.” Hafer v. Melo, 502 U.S.
21, 25 (1991). The real party in interest in an
official-capacity suit is the governmental entity;
“[i]t is not a suit against the official
personally[.]” Kentucky v. Graham, 473 U.S.
159, 166 (1985). “In an official-capacity suit the
entity's ‘policy or custom' must have played a
part in the violation of federal law.” Id.
Here, Plaintiff sues Holmes, Molnar, Riches, and Gentry in
their individual and official capacities. (See Am.
Compl. at 2-4). However, Plaintiff does not include factual
allegations that Holmes, Molnar, Riches, and Gentry enforced
a policy or custom that caused a violation of Plaintiff's
rights. (See Am. Compl., ECF No. 21); (see
also Compl., ECF No. 1-3). For this reason, the Court
will only address Plaintiff's causes of action against
NDOC in its official capacity and against all other
Defendants in their individual capacities.
have a First Amendment right to file prison grievances and to
pursue civil rights litigation in the courts. See Rhodes
v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). To state
a viable First Amendment retaliation claim in the prison
context, a plaintiff must allege: “(1)[a]n assertion
that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and
that such action (4) chilled the inmate's exercise of his
First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.” Id.
at 567-68. A plaintiff need not show that his or her First
Amendment activity was in fact “chilled.” See
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283,
1300 (9th Cir. 1999). Rather, a plaintiff must only show that
the adverse action “would chill or silence a person of