United States District Court, D. Nevada
JAMES L. STUCKEY, Plaintiff,
JOSEPH LOMBARDO, et al., Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
L. Stuckey (“Plaintiff”), formerly an inmate in
the custody of the Clark County Detention Center
(“CCDC”), has submitted a second amended civil
rights complaint pursuant to 42 U.S.C. § 1983. (ECF No.
12). The Court now screens Plaintiff's second amended
civil rights complaint pursuant to 28 U.S.C. § 1915.
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, 845 (9th Cir. 2001) (per curiam).
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, ” and
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 SECOND AMENDED COMPLAINT
second amended complaint (“SAC”), Plaintiff sues
multiple defendants for events that took place while
Plaintiff was incarcerated at CCDC. (ECF No. 12 at 1).
sues Defendants Sheriff Joseph Lombardo, Deputy Chief of
Operations Suey, Correctional Officer #S7134A, Correctional
Officer G. Sanchez (#6894), and Correctional Officer #C8837D.
(Id. at 2-3). Plaintiff alleges three counts and
seeks monetary damages as well as injunctive relief.
(Id. at 4, 5, 6, 9).
November 12, 2015, Plaintiff filed a civil rights complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1). On December
8, 2015, Plaintiff filed a 20-page supplement to his
complaint. (ECF No. 3). On June 22, 2017, this Court issued
an order granting Plaintiff leave to amend to incorporate the
complaint and the supplement into a single amended complaint.
(ECF No. 9).
10, 2017, Plaintiff submitted a first amended complaint
(“FAC”). (ECF No. 10). On July 17, 2017, this
Court issued a screening order on the FAC, dismissing the FAC
because Plaintiff failed to state a claim, and giving
Plaintiff leave to amend his Eighth Amendment failure to
protect claim. (ECF No. 11 at 5-7). In particular, this Court
noted that Plaintiff failed to state a colorable failure to
protect claim because he “has not established how or
why he believed a convicted or pretrial felon was going to
physically attack him.” (Id. at 6).
27, 2017, Plaintiff submitted a SAC. (ECF No. 12). In
addition to the facts Plaintiff stated in the FAC and
reiterated in the SAC, in the SAC Plaintiff states that he
believed he was in danger of assault, and suffered great
anxiety thereby, because he was serving a short sentence and
so was a potential target for other inmates. (Id. at
3, 5). Plaintiff also claims that Defendants are aware of
this “Short Timers Disease, ” whereby
“inmates serving six months or less are targeted by
other inmates for ridicule, intimidation, and sometimes
violence.” (Id.) However, Plaintiff does not
state any facts that allow the court to infer that he himself
was the target of threats or violence. And while Plaintiff is
correct that Plaintiff need not wait until an actual assault
or injury occurs before filing suit to prevent such harm,
see Helling v. McKinney, 509 U.S. 25, 36, (1993),
Plaintiff does need to show that there was an objective,
substantial risk of serious ham, which Plaintiff fails to do.
Plaintiff's only claims about the objective risk of harm
are two fights that occurred in his unit, as well as three
shakedowns in an eight-day period by officials looking for a
blade missing ...