United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. This action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and LR IB 1-4. Before the Court is plaintiff
Kevin Rohn Gill's ("Gill") Motion to File
Second Amended Complaint ("SAC"). (ECF No. 29.)
Defendants responded to the motion requesting that the SAC be
screened by the Court (ECF No. 30). The Court now re-screens
Gill's SAC pursuant to 28 U.S.C. § 1915A.
1915 provides, in relevant part, that "the 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). Dismissal 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 the
court applies the same standard when reviewing the adequacy
of a complaint under § 1915. Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012).
Rule 12(b)(6), the court is to dismiss when the complaint
fails to "state a claim for relief that is plausible on
its face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Courts accept as true all well-pled factual
allegations, set aside legal conclusions, and verify that the
factual allegations state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Although the complaint need not contain detailed factual
allegations, it must offer more than "a formulaic
recitation of the elements of a cause of action" and
"raise a right to relief above a speculative
level." Twombly, 550 U.S. at 555.
review, the complaint is construed in the light most
favorable to the plaintiff. Chubb Custom Ins. Co. v.
Space Systems/Loral Inc., 710 F.3d 946, 956 (9th Cir.
2013). The court takes particular care when reviewing the
pleadings of a pro se plaintiff, as a more forgiving
standard applies to litigants not represented by counsel.
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.
2014). In addition, a pro se plaintiff must be given
notice of the deficiencies of his or her complaint, and leave
to amend, unless the opportunity to amend would be futile.
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
1995). Despite this leniency, a district court may in its
discretion dismiss an in forma pauperis complaint if
the claim "lacks an arguable basis in either law or
fact." Id. This includes claims based on
untenable legal conclusions (e.g., claims against defendants
who are immune from suit or claims of infringement of a legal
interest which clearly does not exist) or fanciful factual
allegations (e.g., fantastic or delusional scenarios).
Neitzke v. Williams, 490 U.S. 319, 328, 109 S.Ct.
1827, 1833, 104 L.Ed.2d 338 (1989).
a prisoner in the custody of the Nevada Department of
Corrections ("NDOC") and is currently housed at
High Desert State Prison ("HDSP") in Indian
springs, Nevada. (ECF No. 1.) However, the events giving rise
to this complaint occurred at Northern Nevada Correction
Center ("NNCC") in Carson City, Nevada. (ECF No.
29, at 6.) Gill has submitted a civil rights complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On April 2,
2018, the Court screened Gill's First Amended Complaint
("FAC") and determined that the Eighth Amendment
claim for deliberate indifference could proceed against
Defendants Aranas, Brockway, and Perry, but was dismissed
without prejudice against Defendants Mar, Long, Walls,
Gedney, Manerlang, and Johns. (ECF No. 5, at 13.) Gill was
granted leave to amend his complaint to cure the deficiencies
outlined therein. (Id.) Gill has now submitted a SAC
which reiterates the Eighth Amendment claim for deliberate
indifference against Aranas but fails to include Brockway or
Perry as Defendants. (ECF No. 29, at 8.) In addition, the SAC
includes Gedney, Mar, Walls, Long, and John Doe's number
one (1) through ten (10) as Defendants; alleges four separate
Eighth Amendment deliberate indifference claims; and, seeks
declaratory and monetary relief. (ECF No. 29.) Based on
Gill's claims, the Court construes the SAC as only
alleging one Eighth Amendment deliberate indifference claim
against all Defendants.
gravamen of Gill's complaint is that he received
inadequate medical care while housed at NNCC. (ECF No. 29, at
6.) Gill claims that he saw various NNCC medical staff for
his degenerative hip condition, and they were aware of his
pain and need for surgery. (Id., at 9-10.) However,
NNCC medical staff refused to provide Gill with effective
painkillers or to schedule his surgery. (Id.) As a
result of his four-year de ay in receiving treatment for his
hip condition, Gill now suffers from a permanent handicap and
must endure pain for the rest of his life. (Id., at
Count I - Eighth Amendment Deliberate Indifference
alleges an Eighth Amendment claim for deliberate indifference
to a serious medical need against each Defendant. (ECF No.
29.) A prison official violates the Eighth Amendment's
proscription against cruel and unusual punishment when they
act with deliberate indifference to the serious medical needs
of a prisoner. Farmer v. Brennan, 511 U.S. 825, 828
(1994). To establish an Eighth Amendment violation, a
plaintiff must satisfy both an objective standard-that the
deprivation was serious enough to constitute cruel and
unusual punishment-and a subjective standard-deliberate
indifference. Snow v. McDaniel, 681 F.3d 978, 985
(9th Cir. 2012). To meet he objective standard, the denial of
a plaintiffs serious medical need must result in the
"'unnecessary and wanton infliction of
pain.'" Id. (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). Serious medical needs
are those "that a reasonable doctor or patient would
find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an
individual's daily activities' or the existence of
chronic and substantial pain." Colwell v.
Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation
and internal punctuation omitted).
the subjective standard of deliberate indifference, a prison
official must know that a prisoner faces a substantial risk
of serious harm and disregard that risk by failing to take
reasonable steps to abate it. Farmer, 511 U.S. at
837. Only where a prison "official 'knows of and
disregards an excessive risk to inmate health and
safety'" is the subjective element of the test
satisfied. Id. (quoting Toguchi v. Chung,
391 F.3d 1051, 1057 (9th Cir. 2004)). "Indifference may
appear when prison officials deny, delay or intentionally
interfere with medical treatment, or it may be shown by the
way in which prison physicians provide medical care."
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
However, a mere delay in medical treatment is not sufficient
for a deliberate indifference claim; there must also be harm.
Shapley v. Nev. Bd. of State Prison Comm'rs, 766
F.2d 404, 407 (9th Cir. 1985).
disagreement between a plaintiff and defendant physician
regarding the course of medical treatment cannot constitute a
deliberate indifference claim without establishing that the
course of treatment was medically unacceptable and chosen in
conscious disregard of an excessive risk to Plaintiffs
health. Jackson v. Mclntosh,90 F.3d 330, 332 (9th
Cir. 1996). The conduct must consist of "more than
ordinary lack of due care." Farmer, 511 U.S. at
835. Not only must the defendant prison official have actual
knowledge from which he or she can infer that a substantial
risk of harm exists, but he or she must also draw that
inference." Id. at 837. The standard lies
"somewhere between the poles of negligence at one end
and purpose or knowledge at the other[, ]" id.
at 836, and does not include "accidental or
unintentional failures to provide adequate ...