United States District Court, D. Nevada
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, 1). 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.
IN FORMA PAUPERIS APPLICATION
on the financial information provided, the court grants
plaintiff leave to proceed without prepayment of fees or
costs pursuant to 28 U.S.C. § 1915(a)(1).
court shall dismiss the case at any time if the court
determines that . . . the action or appeal (i) is frivolous
or malicious; (ii) fails to state a claim upon which relief
may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). This provision applies to all
actions filed in forma pauperis, whether or
not the plaintiff is incarcerated. See Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); see also
Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per
of a complaint for failure to state a claim upon which relief
may be granted is provided for in Federal Rule of Civil
Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii)
tracks that language. Thus, when reviewing the adequacy of a
complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), the court
applies the same standard as is applied under Rule 12(b)(6).
See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012) (“The standard for determining whether a
plaintiff has failed to state a claim upon which relief can
be granted under § 1915(e)(2)(B)(ii) is the same as the
Federal Rule of Civil Procedure 12(b)(6) standard for failure
to state a claim.”). Review under 12(b)(6) is
essentially a ruling on a question of law. See Chappel v.
Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000).
reviewing the complaint under this standard, the court must
accept as true the allegations, construe the pleadings in the
light most favorable to the plaintiff, and resolve all doubts
in the plaintiff's favor. Jenkins v. McKeithen,
395 U.S. 411, 421 (1969). Allegations in pro se
complaints are “held to less stringent standards than
formal pleadings drafted by lawyers.” Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and
complaint must contain more than a “formulaic
recitation of the elements of a cause of action, ” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“The pleading must contain something more . . . than .
. . a statement of facts that merely creates a suspicion [of]
a legally cognizable right of action.” Id.
(quoting 5 C. Wright & A. Miller, Federal Practice &
Procedure § 1216, at 235-36 (3d ed. 2004)). At a
minimum, a plaintiff should state “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570; see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
pro se litigant must be given leave to amend his or
her complaint, and some notice of its deficiencies, unless it
is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995).
SCREENING OF COMPLAINT
complaint, plaintiff sues Dr. Bennett and the City of Las
Vegas, Nevada. (ECF No. 1-1 at 1). Plaintiff alleges one
count and seeks monetary damages. (Id. at 4, 9).
alleges that, from July 14, 2016 to June 2, 2017, Dr. Bennett
forcibly medicated him with Zyprexa, Depakote, and Risperdal
even though plaintiff was not mentally ill and had been
proven competent by several psychologists prior to July 14,
2016. (Id. at 3, 23, 28). Plaintiff alleges that the
forced medication was medical malpractice. (Id. at
Court construes plaintiff's allegations as a Fourteenth
Amendment due process claim. In Washington v.
Harper, 494 U.S. 210 (1990), the Supreme Court held that
“the Due Process Clause permits the State to treat a
prison inmate who has a serious mental illness with
antipsychotic drugs against his will, if the inmate is
dangerous to himself or others and the treatment is in the
inmate's medical interest.” Id. at 227.
However, the Due Process Clause requires certain essential
procedural protections to ensure that the decision to
medicate an inmate against his will is neither arbitrary nor
erroneous. Id. at 228, 236. Although a court would
have to examine the procedures in this present case, the
Supreme Court has held that notice, the right to be present
at an adversary hearing, and the right to present and
cross-examine witnesses are sufficient procedures to meet the
requirements of due process. Id. at 235.
addition, municipalities such as the City of Las Vegas, may
not be held liable under § 1983 unless action pursuant
to municipal custom or policy caused a constitutional tort.
See Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658, 690-91 (1978). A municipality ...