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Kurtze v. Lombardo

United States District Court, D. Nevada

April 23, 2019

Giovanni Kurtze, Plaintiff
v.
Joseph Lombardo, Defendant

          ORDER SCREENING SECOND AMENDED COMPLAINT [ECF NO. 1]

         Plaintiff Giovanni Kurtze brings this civil-rights action under 42 U.S.C. § 1983, claiming that his First Amendment outgoing mail rights were violated at the Clark County Detention Center (CCDC).[1] Kurtze applies to proceed in forma pauperis, [2] I grant his application for pauper status and screen his second amended complaint under 28 U.S.C. § 1915A. Because I find that Kurtze has not pled a proper claim, I grant him leave to file a third amended complaint by May 24, 2019.

         Background [3]

         On June 15, 2017, Kurtze a pretrial detainee at CCDC who was representing himself in a murder trial, mailed a letter to the Special Public Defender in Las Vegas.[4] However, “it did not get mail[ed] out.”[5] Kurtze filed grievances with the sergeant and lieutenants but nothing happened.[6] Kurtze theorizes that Sheriff Joseph Lombardo violated his rights by “not supervising staff correctly.”[7] So, he sues Sheriff Lombardo for a First Amendment outgoing mail violation claim, [8] seeking monetary damages.[9]

         Discussion

         A. Kurtze has three strikes, but this claim is not bared.

         Title 28 U.S.C. § 1915(g) provides: “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” Essentially, this three-strikes rule prevents prisoner litigants from filing new actions or appeals in forma pauperis when they've thrice abused the prisoner-litigation process by filing frivolous claims in the past. Once a prisoner litigant has three strikes, he will not be granted pauper status for new cases or appeals unless he demonstrates that he “is under imminent danger of serious physical injury.”[10] Although Kurtze has incurred three strikes under § 1915(g), [11] he filed this case before this court issued the third strike. So § 1915(g) does not bar this lawsuit, but Kurtze is cautioned that future pauper-status lawsuits may be barred under this provision.

         B. Kurtze's claim does not withstand screening.

         1. Screening standard

         Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity.[12]In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous or malicious, or that fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief.[13] All or part of the complaint may be dismissed sua sponte if the prisoner's claims lack an arguable basis in law or fact. This includes claims based on legal conclusions that are untenable, like 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 or fantastic or delusional scenarios.[14]

         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.[15] In making this determination, the court takes all allegations of material fact as true and construes them in the light most favorable to the plaintiff.[16] Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers, [17] but a plaintiff must provide more than mere labels and conclusions.[18] “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.”[19] “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.”[20]

         2. Analyzing Kurtze's claim

         Generally, inmates have a First Amendment right to send and receive mail.[21]Regulations concerning outgoing mail must further “important or substantial governmental interest[s] unrelated to the suppression of expression” and must be generally necessary to protect legitimate government interests.[22] Regulations concerning outgoing mail must more closely fit the interest served than regulations concerning incoming mail.[23] Jail officials may justifiably censor outgoing mail concerning escape plans, information about proposed criminal activity, or the transmittal of encoded messages.[24] Jail officials may also visually inspect outgoing mail to determine whether it contains contraband material which threatens security or material threatening the safety of the recipient.[25] To plead a claim against a supervisor for free speech violations under the First Amendment, a plaintiff need only allege “facts that demonstrate an immediate supervisor knew about the subordinate violating another's federal constitutional right to free speech, and acquiescence in that violation.”[26]

         Kurtze fails to allege a colorable First Amendment outgoing mail violation here. Kurtze only sues Sheriff Lombardo for failing to supervise his staff. But Kurtze includes no allegations in about who failed to send his mail and whether Lombardo knew about this incident. Because Kurtze has filed to allege facts that demonstrate that Lombardo knew about a constitutional violation and acquiesced in it, as required to state a supervisor-liability claim against the sheriff, I dismiss this claim without prejudice and grant Kurtze leave to amend his First Amendment outgoing mail claim if he can plead true facts to support it.

         C. Leave to amend

         If Kurtze chooses to file a third amended complaint, he is advised that a third amended complaint supersedes (replaces) the original, first, and second amended complaints, so the third amended complaint must be complete in itself.[27] He must file the third amended complaint on this court's approved prisoner-civil-rights form, and it must be entitled “Third Amended Complaint.” Kurtze must follow the instructions on the form. He need not and should not allege very many facts in the “nature of the case” section of the form. Rather, in each count, ...


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