United States District Court, D. Nevada
WAYNE A. PORETTI, Plaintiff,
DZURENDA, et al., Defendants.
RICHARD F. BOULWARE II UNITED STATES DISTRICT JUDGE.
who is a prisoner in the custody of the Nevada Department of
Corrections (“NDOC”), has submitted a civil
rights complaint pursuant to 42 U.S.C. § 1983 and has
filed an application to proceed in forma pauperis.
(ECF No. 1-1, 10.) Plaintiff also has filed a motion to
extend the prison copy work limit. (ECF No. 4).
matter of the filing fee shall be temporarily deferred. The
Court now screens Plaintiff's civil rights complaint
pursuant to 28 U.S.C. § 1915A and addresses the motion
to extend the copy work limit.
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).
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).
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
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.
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).
SCREENING OF COMPLAINT
complaint, Plaintiff sues multiple Defendants for events that
took place while he was incarcerated at High Desert State
Prison (HDSP). Plaintiff sues Dzurenda, Aranas, Governor
Sandoval, Linda Fox, Williams, B. Rio, Adam Paul Laxalt, and
Wonka. (ECF No. 1-1 at 2-4). Plaintiff alleges three counts
and seeks injunctive relief and damages. (Id. at
complaint, Plaintiff alleges the following: Plaintiff suffers
from a neurological disorder, Tourette's, and has been
diagnosed as having OCD, ADHD, and schizophrenia and being
paranoid, psychotic, and delusional. (Id. at 4).
Plaintiff arrived at HDSP in March 2016, medical staff did
not provide him with his psychiatric medications and the
medications he took for neurological problems, because these
medications (Wellbutrin and Seroquel) were not on the
formulary. (Id. at 4, 6). The new medicines ordered
by NDOC did not help. (Id. at 6). Plaintiff heard
voices in the vent of the cell and would not go back in.
(Id.) He therefore was put in the hold.
subsequently entered a plea of guilty but mentally ill to the
crime of grand larceny. (Id. at 6, 15). In the May
2017 judgment, the Clark County District Court ordered that
Plaintiff receive treatment for his mental illness during the
period of confinement “in conformity with such
treatment as is medically indicated for the defendant's
mental illness.” (Id. at 6, 15).
25, 2017, the Director of Prisons and medical staff
eliminated Plaintiff's medication for no other reason
than cost. (Id. at 6). Medical never even saw
Plaintiff to determine what medication worked or did not
work, but ordered a medication he took before that did not
help. (Id.) Plaintiff's doctors and SNAMH had
gone through many medicines because one medicine helps him
and others make him worse or cause other neurological
problems. (Id. at 4).
Fox, the Director of Pharmacy, allows for the inmates to be
improperly treated by not providing the necessary medications
to them and reducing the number of inmates who are treated
with more expensive psychotropic medications. Plaintiff told
her that his medicines had been discontinued and that staff
changed his medication without seeing him. (Id.) He
did not hear back from her. (Id.) Plaintiff contends
that this is medical neglect. (Id.) Plaintiff also
said that he had taken the ordered medicine before and had
side effects. (Id.)
saw a psychologist or psychiatrist at HDSP, who told him that
the Medical Director and Linda Fox had stopped any medicines
that are not on the formulary. (Id. at 7). The
doctor then ordered a medication, risperdal, that has a side
effect of causing male breasts. (Id.) Plaintiff was