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Porretti v. Dzurenda

United States District Court, D. Nevada

March 30, 2018

WAYNE A. PORETTI, Plaintiff,
DZURENDA, et al., Defendants.



         Plaintiff, 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).

         The 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.


         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 his 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 5-8, 11).

         In his 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).

         When 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. (Id.)

         Plaintiff 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).

         On May 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).

         Linda 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.)

         Plaintiff 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 told ...

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