United States District Court, D. Nevada
C. JONES, UNITED STATES DISTRICT JUDGE
a prisoner civil rights complaint pursuant to 42 U.S.C.
§ 1983. The Court now screens the Complaint, as amended,
under 28 U.S.C. § 1915A.
AND PROCEDURAL HISTORY
Adam Hawthorne is a prisoner in the custody of the Nevada
Department of Corrections. He alleged constitutional
violations against various Defendants arising out of events
at Northern Nevada Correctional Center. The Court dismissed
due process and First Amendment retaliation claims, without
leave to amend, and dismissed an Eighth Amendment deliberate
indifference claim, with leave to amend. The Court ruled that
the Eighth Amendment claim was essentially a medical
malpractice claim. Plaintiff had concluded, but had made no
factual allegation, that Nurse MacKenzie Bennington
subjectively believed he was not malingering yet chose not to
treat him when he complained of back pain on January 2, 2016.
filed the Second Amended Complaint (“SAC”),
noting again that Nurse Bennington responded to his medical
emergency on January 2, 2016 and asked him what the problem
was. Bennington refused to examine his back, refused to call
for additional help or medical advice, noted she was the only
medical staff on duty, and said that there was nothing she
could do for him. She noted that she did not have the
authority to prescribe pain medication. She did not examine
him but stated there was nothing wrong with him and left. She
gave him no pain pills or referral for a doctor. Only after
six days did a doctor examine him and provide a wheelchair,
cane, and pain pills. (The Court has not repeated allegations
relevant only to claims that have been dismissed without
leave to amend.) Via the SAC, Plaintiff added Warden Isidro
Baca and Medical Director John Keast as Defendants based on
their alleged failure to ensure adequate staffing of medical
personnel, which resulted in Bennington being the only
medical professional on staff during Plaintiff's
has also asked for leave to file a Third Amended Complaint
(“TAC”). The TAC names Bennington, Baca, Nurse
Candice Brockaway, Senior Correctional Officer Stanley
Shinault, and Director of Nursing John Perry as Defendants
but omits Keast. The allegations concern the January 2, 1016
incident with Bennington. Although Plaintiff has used
multiple copies of the same pages of the form complaint, such
that it appears there may be multiple counts, the Court
perceives a single count.
courts must screen any case in which a prisoner seeks redress
from a governmental entity or its officers or employees. 28
U.S.C. § 1915A(a). The court must identify cognizable
claims and dismiss claims that are frivolous, malicious, fail
to state a claim, or seek monetary relief from an immune
defendant. See 28 U.S.C. § 1915A(b). This
includes claims based on fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
Also, when a prisoner seeks to proceed without prepayment of
fees, a court must dismiss if “the allegation of
poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A).
screening claims for failure to state a claim, a court uses
the same standards as under Rule 12(b)(6). Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Federal
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss
under Rule 12(b)(6) tests the complaint's sufficiency,
see N. Star Int'l v. Ariz. Corp. Comm'n, 720
F.2d 578, 581 (9th Cir. 1983), and dismissal is appropriate
only when the complaint does not give the defendant fair
notice of a legally cognizable claim and the grounds on which
it rests. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).
treats factual allegations as true and construes them in the
light most favorable to the plaintiff, NL Indus., Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), but does not
accept as true “legal conclusions . . . cast in the
form of factual allegations.” Paulsen v. CNF
Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). A plaintiff
must plead facts pertaining to his case making a violation
“plausible, ” not just “possible.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) (“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.”). That is, a plaintiff must not only specify
or imply a cognizable legal theory (Conley review),
he must also allege the facts of his case so that the court
can determine whether he has any basis for relief under the
legal theory he has specified or implied, assuming the facts
are as he alleges (Twombly-Iqbal review).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Also, under Federal Rule of
Evidence 201, a court may take judicial notice of
“matters of public record” if not “subject
to reasonable dispute.” United States v. Corinthian
Colls., 655 F.3d 984, 999 (9th Cir. 2011). Otherwise, if
the district court considers materials outside of the
pleadings, the motion to dismiss is converted into a motion
for summary judgment. See Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege (1) violation of a right secured by the Constitution
or laws of the United States (2) by a person acting under
color of state law. See West v. Atkins, 487 U.S. 42,
Court grants leave to amend to file the TAC in part, i.e., as
to the allegations relevant to the deliberate indifference
claim. The Court does not give leave to amend as to ...