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Saintal v. Pesce

United States District Court, D. Nevada

March 30, 2018

MARIA PESCE, et al., Defendants.



         Pending before the Court is the Motion to Dismiss, (ECF No. 35), filed by Defendants Jo Gentry (“Gentry”), Willontray Holmes (“Holmes”), [1] David Molnar (“Molnar”), Todd Riches (“Riches”), [2] 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.

         I. BACKGROUND

         This is 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, [3] 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).[4]

         On 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).

         In the 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, [5] 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).

         Once 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 No. 1-3).

         On October 1, 2015, Gentry, Piccininni, and Holmes allegedly retaliated against Plaintiff by choosing to place a convicted sex offender[6] 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[7] 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 id.).

         Plaintiff's 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:[8] (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.[9] (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).


         Dismissal 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.” Id.

         If the 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).


         In the 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.

         As a 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.

         A. Retaliation

         Prisoners 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 ordinary ...

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